How Six Supreme Court Justices Brought Back the Spirit of the Third Reich

In hardly any other institution is Donald Trump’s will to power more visible than in the Supreme Court of the United States. With an ultra-conservative six-to-three majority, the highest court has increasingly transformed from a place of constitutional interpretation into a political instrument - a forum where rulings seem no longer shaped by legal reasoning but by ideological allegiance. On key issues such as executive authority, presidential immunity, immigration policy, and LGBTQ rights, six justices consistently vote in Trump’s favor: Chief Justice John Roberts often takes a moderating stance but has recently clearly sided with the conservative bloc. Clarence Thomas, the court’s most senior justice, stands ideologically firm with Trump and has recently been embroiled in major conflicts of interest. Samuel Alito, an aggressive culture warrior, shapes jurisprudence with a distinctly religious-conservative agenda. Neil Gorsuch, Trump’s first appointee, is considered doctrinaire on deregulation and the concentration of executive power. Brett Kavanaugh, confirmed amid protest, reliably backs Trump’s positions, particularly in matters of criminal law. And Amy Coney Barrett, pushed through just before the 2020 election, has since become a defender of broad presidential authority. These six voices form Trump’s iron majority - a judicial fortress where liberal warnings fall silent.

Even before Trump began his second term in January 2025, the Supreme Court had paved the way for his return - first by ruling that he could remain on the ballot despite ongoing indictments, and later with the controversial immunity decision that shielded him from prosecution over his attempts to influence the 2020 election. The ruling not only expanded the protective scope of the presidency - it also sent a clear signal: Trump is allowed what others are not. And he seized the opportunity. Since his return to the White House, the court has acted with striking deference to the president. This became especially clear in the June 27 decision that made it significantly harder for federal judges to issue nationwide injunctions against new government measures - a tool that had often been used to halt Trump’s most radical decrees. The response from the liberal justices came swiftly. Sonia Sotomayor and Ketanji Brown Jackson issued stark warnings about a dangerous shift in power in favor of the executive. Jackson spoke of a “grave threat to the American system of government.” Amy Coney Barrett, author of the decision, countered that one should not demand an “imperial judiciary” while simultaneously criticizing an “imperial executive” - but the climate was already poisoned. In the so-called emergency docket - the court’s shadow docket - numerous preliminary rulings have been handed down in recent months, nearly all favoring Trump. Residency rights for migrants have been revoked, deportations accelerated, and Musk’s radical budget cuts at the “Department of Government Efficiency” pushed through - often without oral arguments but with a clear bias. These decisions may be formally interim, but they strongly signal where the conservative majority stands - firmly at the president’s side.

Most devastating, however, is the record on trans rights. In three consecutive rulings, protections for LGBTQ individuals were significantly rolled back. The court upheld a ban on medical treatment for trans youth in Tennessee - a decision already serving as a precedent for other states. The ban on trans individuals serving in the military was also upheld, despite constitutional objections from lower courts. And at the end of the court’s term, the majority ruled in favor of religious parents in Maryland who sought to prevent their children from being exposed to LGBTQ-themed books in school. While Samuel Alito celebrated the ruling as a victory for religious freedom, Sotomayor warned in her dissent of an assault on the “very heart of public education.” The liberal justices appear increasingly powerless. Their dissents are sharp, pleading, at times almost despairing - and yet ineffective. Jackson accused her colleagues of granting, by eliminating nationwide injunctions, a de facto license for unlawful government action. Sotomayor, in reference to expedited deportations to third countries, spoke of “rewarding lawlessness.” And on the trans healthcare decision, she wrote, “This ruling authorizes - without a second thought - immeasurable harm to children and families.” Any change to this dynamic seems unlikely. A potential retirement of a conservative justice that might shift the court’s balance has not materialized, despite speculation. Clarence Thomas (77) and Samuel Alito (75) remain firmly in place. With a Republican majority in the Senate secured at least through the end of 2026, they can plan their succession without pressure. Thomas, already the longest-serving current justice, is approaching the historic record of William O. Douglas - 36 years on the Supreme Court. He has three years to go. Three years in which Trump can continue to reshape the judiciary. Because if the Supreme Court becomes an extension of the executive branch, it is not only the judiciary that loses its independence. It is the very foundation of democracy that comes under threat.

Justice Ketanji Brown Jackson called what is happening by its name: the creation of a “two-track system” in which the poor, the powerless, and the unpopular live in a “law-free zone” - one that, she warned, “echoes the horrors of history.” In a footnote, she cited the Jewish jurist Ernst Fraenkel, who published his work The Dual State in exile in 1941 - an analysis of the Nazi legal system, which claimed to remain a state governed by law while turning lawbreaking into method. Fraenkel distinguished between the “normative state,” which continued to recognize laws, courts, and contracts, and the “prerogative state,” in which the will of the leader replaced everything. But the decisive point was not the existence of both, but their coexistence. While the majority of Germans continued to work, shop, and pay taxes, others were arbitrarily abducted, disenfranchised, and destroyed. Normality itself became the disguise of barbarism.

Eight decades later, Fraenkel’s model fits the United States with disturbing precision. While life goes on for most citizens - markets function, elections take place, the mail arrives on time - another reality exists, where students like Rümeysa Öztürk and green card holders like Mahmoud Khalil are imprisoned for their words, where ICE agents profile people by skin color, sink boats, and shoot civilians. Where the president threatens the media, has artists fired, and rewrites laws at will. And above it all stands a Court that does not halt these excesses but cloaks them in legal reasoning.

The six Republican-appointed justices, led by John Roberts, serve as architects of this new order. By expanding Trump’s power under the guise of legality, they have created what Fraenkel called the “dual illusion” - a system that is both authoritarian and lawful. The jurist Evan Bernick put it bluntly: “The Court is adjusting the law to make room for arbitrary power.”

This arbitrariness will soon be played out in public view. In the coming months, the Supreme Court will rule on Trump’s emergency powers - whether he can unilaterally impose tariffs, deport people, or remove members of the Federal Reserve. Formally, it is about statutes - but in substance, it is about the end of the separation of powers. Should the Court side with him on all counts, it would be nothing less than a judicial license for dictatorship - a coup in robes.

Ernst Fraenkel once described how the courts of the Third Reich initially upheld the rights of Jewish tenants - until the party press attacked them. Then the same judges declared that tenancy law was “not a legal question but a question of worldview.” From that moment on, ideology replaced law. The same pattern is repeating today in the shadows of the so-called “emergency docket,” the Supreme Court’s fast-track procedure. Decisions are issued without explanation, without public scrutiny, often overnight - and almost always in the president’s favor.

Thus Trump was allowed, by shadow order, to dismiss federal officials even though the law guaranteed their protection. He was allowed to exclude trans people from the military, deport migrants to dangerous countries, and withhold billions in aid funds. Each time, the reasoning was absent - and that is precisely the point. “In a prerogative state, it seems there’s a law that requires X, but suddenly it’s Y,” says Bernick. “And no one explains why.” The pattern is unmistakable: the president acts, the Court nods, and both claim the law has been upheld. What remains is a space without rules - a space Fraenkel called “the black hole of law,” a gravitational center that gradually devours everything around it.

Still, as legal scholars like Aziz Huq argue, the catastrophe is not yet complete. People like Khalil or Abrego Garcia, who were to be deported despite court rulings, found judges who brought them back. Yet these victories are fragile - snapshots within a system already reconfigured. If Trump gains control over the Federal Reserve - and he is only one ruling away - the normative state itself will become the façade of economic authoritarianism. The irony is that the justices are prisoners of their own creation. Should Trump one day ignore the Supreme Court’s decisions, their authority would collapse. Their influence exists only as long as the president respects the fiction of law. And so they prefer what is hidden, what is disguised - an authoritarian order with judicial makeup. A system that pretends to play democracy while hollowing it out from within.

The historian Kim Lane Scheppele calls this phenomenon “autocratic legalism” - the use of existing laws to invert their protective function. The Supreme Court, she says, has opened the door to it. Even before Trump’s second term, the Roberts Court had eroded democracy through its rulings on voting rights, campaign finance, and executive authority. With the July 2024 decision granting presidents broad immunity for “official acts,” it elevated the president above the law once and for all. “Essentially,” Scheppele explains, “the Court is saying the president cannot be constrained by criminal law - so why by budgetary law?”

Since then, the boundary that Fraenkel defined as the core of the rule of law has fallen - the inviolability of law against the sovereign. What began in the Weimar Republic as emergency decrees became the suicide of the constitution. Trump’s power today follows the same dynamic. The Supreme Court provides him with the legal levers to present himself as a “king in the cloak of democracy.” And the public? It is soothed by the message that everything is legal, everything constitutional - just as the Nazis once respected tenancy law until they decided tenants no longer belonged to the “national community.”

The economic dimension of this dual state is as perfidious as it is precise: while Trump seizes control over ministries, agencies, and media, the Court protects the Federal Reserve - to reassure investors. The message to the markets is: everything is stable, everything is normal. To the citizens: there is nothing to worry about. Only those who fall out of line are swallowed by the law. But this façade is fragile. The more obvious the arrangement, the weaker the trust. Should the confidence of the markets collapse, the entire edifice could implode - as Fraenkel wrote, “collapsing in on itself when the illusion of legality disappears.”

Ketanji Brown Jackson knows this. Her dissents are more than legal disagreements - they are alarm signals. When courts no longer have the courage to order the government to follow the law, she warned, they “sanction tyranny.” The United States stands at the threshold Fraenkel once described for Germany: between the deception of law and open dictatorship. The deception still works. Judges still write opinions as if dealing with technicalities, not the fate of the republic. But the truth is that the law itself has long since become an instrument of power - and that the Supreme Court, which was meant to protect it, is now handing it over as a weapon.

If democracy one day falls, people may say it was not overthrown by violence but by a majority of six justices who decided that the president stands above the law. And that, to preserve their own authority, they divided America into two states: one visible, orderly - and one where the law has ceased to exist.