In an extraordinary, if perhaps temporary, rebuke to the Trump administration, the Supreme Court issued an order at around 1 a.m. on Saturday forbidding the government to deport a group of Venezuelan nationals under the Alien Enemies Act.
The ruling, by a presumed 7-to-2 vote, signaled genuine fury at the failure of Trump officials to abide by the law and, even more to the point, the directives of judges, including those on the Supreme Court.
The federal judiciary is being forced to confront a fundamental question: what to do when its orders are defied. This is not the first time that the court has confronted this question. A case from another point in American history — the postwar effort to desegregate America’s schools — offers a guide for the justices as they move forward.
On Thursday, Judge J. Harvie Wilkinson III of the Court of Appeals for the Fourth Circuit, a Ronald Reagan appointee and conservative icon, in rejecting an emergency motion by the Trump administration to cease the legal effort to return Kilmar Armando Abrego Garcia to the United States, summed the issue up: “The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.”
In his opinion, written for a three-judge panel, Judge Wilkinson cited a case that took place 67 years ago, Cooper v. Aaron, which arose after the Supreme Court’s rulings were disregarded. A year after the court’s unanimous 1954 decision in Brown v. Board of Education, in an opinion known as Brown II, the court hedged on enforcement of its decision, ruling that school boards must desegregate “with all deliberate speed,” a purposely vague formulation.
In September 1957 nine Black students, citing the Brown decision, won a Federal District Court judgment that allowed them to enroll at Little Rock Central High School in Arkansas. After Orval Faubus, the state’s governor, used the State National Guard to stop the students from going to school, President Dwight Eisenhower ordered the Army’s 101st Airborne Division to force compliance with the District Court ruling and Brown.
After the Black students enrolled, a different federal judge in Little Rock agreed with proponents of segregation, holding that the right of Black students to admission to public school had to yield to white opposition to integration for the next two and a half years. In his decision, the judge relied in part on many white people’s belief that the Brown decisions did “not truly represent the law.”
The appeal of that decision by the Black students produced the Supreme Court’s ruling in Cooper v. Aaron in 1958. “The judge in Little Rock was not simply granting a school board request to delay desegregation, which federal judges all over the South were allowing. Rather, the judge was rewarding violence directed at Black students who were already attending an integrated school and whom the president of the United States had deployed federal troops to protect,” said Michael Klarman, a professor at Harvard Law School and the author of a book on the Supreme Court in this era.
In response, the Supreme Court took a noteworthy step. By 1958, several seats on the court had turned over since the original ruling in Brown, and the justices wanted to send the message that all nine were still committed to the decision. To do so, for the first and only time in the court’s history, all nine justices in Cooper v. Aaron signed the decision as co-authors.
The opinion (which was primarily written by Justice William J. Brennan Jr.) contained a remarkable assertion of judicial power: Arkansas, and every other state and person in the country, was required to abide by the justices’ interpretation of the Constitution. “The federal judiciary is supreme in the exposition of the law of the Constitution,” the court stated, “and that principle has ever since been respected by this court and the country as a permanent and indispensable feature of our constitutional system.”
Since 1803, in the case of Marbury v. Madison, the Supreme Court has claimed the right to declare acts of Congress unconstitutional. “But Cooper was the first time that the court said that the Supreme Court and the federal judiciary ‘is supreme in the exposition of the law,’” Mr. Klarman said.
Cooper illustrates what’s at stake today. On April 10 the Supreme Court apparently unanimously ordered the Trump administration to “facilitate” the return of Mr. Abrego Garcia to the United States. The word “facilitate” is rather vague, and in this way analogous to the “deliberate speed” language in Brown II in 1955.
But the Trump officials responded to the decision more like the Little Rock judge who sought to expel the Black students: Just as he defied the decision in Brown, the Trump officials didn’t even pretend to “facilitate”; instead, as the federal district judge in the case found, they did “nothing” at all.
To be sure, there are important differences between the crises of 1958 and 2025. In the battle over Little Rock, the Supreme Court was acting in support of Mr. Eisenhower, who had sent troops to enforce the Brown decision; those defying the justices were recalcitrant state officials and a lower court judge.
Now the court’s putative adversary is President Trump himself, which raises the constitutional stakes — and the risks, if there is a confrontation. Moreover, the Supreme Court is more politicized today than it was in the 1950s, when, as in Brown, Chief Justice Earl Warren succeeded in wangling unanimity, especially when it came to civil rights.
The aftermath of Cooper v. Aaron was hardly smooth. Rather than immediately honor the Supreme Court’s decision, Little Rock closed its public high schools altogether for a full year. But the city did eventually follow Brown, and the authority of the federal courts was vindicated.
Today, in a straight-up conflict with Mr. Trump, the votes of at least some of the court’s six Republican appointees, including three appointed by Mr. Trump, seem much more likely to take his side. The early morning ruling on Saturday was just preliminary, and the dissenting votes of Justices Samuel Alito and Clarence Thomas suggest that they, and perhaps some of their colleagues, will take Mr. Trump’s side, come what may.
The choice for the court is clear: Either the justices will reaffirm the holding of Cooper that the federal judiciary is “supreme in the exposition of the law of the Constitution” or they will cede that authority to Mr. Trump and his aides. Abdicating its role to the executive branch would not only demean the judicial function but also invite chaos, as the nation wonders, case by case, which branch of government has the last word.
To preserve their authority, as well as the rule of law, the justices must reclaim what their predecessors in 1958 knew to be the only honorable and lawful course. And when they do, it would be even better if all nine of them in 2025 also signed their names.
