Next, here is an excerpt from Bob Bauer’s essay in the NYU Democracy Project’s series of 100 essays in 100 days:

…I entirely agree with critics who are very troubled by aspects of this [presidential immunity] opinion, including its holding that a president’s official actions may not even be introduced into evidence in a trial for alleged misconduct for which he cannot claim immunity. (For that matter, I have strongly disagreed with the executive branch opinions that have held that presidents enjoy full immunity while in office.) But it was not at all surprising that the Court held that, as a doctrinal matter, former presidents enjoyed a significant measure of immunity. The (unfortunate) logic across administrations supporting full immunity for incumbents would necessarily apply in some ways to prosecutions initiated after their terms ended. And it bears noting that, while contesting Trump’s claims of absolute immunity for a former president’s official acts, the Biden Administration endorsed the proposition that the criminal laws could not be applied to “core” presidential functions. Setting aside its immediate and rightly controversial impact on the Jan. 6 Trump prosecution, the constitutional question before the Court was complex and, in key respects, its future application in immunizing wrongful presidential conduct remains uncertain.

I do not see this decision, or others in which the administration prevailed during the most recent Term, as predictive of what the Court will do when finally ruling on the constitutionality of the birthright citizenship executive order, or the authority Trump claims for deportations under the Alien Enemies Act (AEA). The Court has insisted on due process and adequate notice in the case of the deportation of Venezuelans alleged to be cartel members. It has barred the removal from the country of a class of detainees under the AEA while appellate review is pending, after halting deportations in that case a month earlier in the early hours of the morning, and upheld a lower court order that the government “facilitate” the return of a deportee the administration had conceded was mistakenly removed from the country. On these issues (if not on others), the Court signaled that it will pay attention to what the administration does as well as what it claims it is doing. It is not so far clear that it will go as far as Trump and his radical constitutional theorists would want in advancing control of independent administrative agencies. The Court has already flinched in a preliminary order at extending broad presidential removal authority as far as the Federal Reserve. Related concerns may give the Court pause before it provides presidents with full control over agencies with politically charged missions, such as the Federal Election Commission (campaign finance) and the Election Assistance Commission (election administration), that Congress structured to ensure – for obvious reasons – that no one political party could direct their operations.

Again, time will have to pass, and perhaps a lot of time, before this argument about the Court can be settled one way or the other. And the signs are not by any means all positive.There is also this decisive and perhaps obvious consideration favoring ongoing progressive engagement with the Court. …

The defense against presidential supremacism and the progressive concern with the substantive direction of the constitutional law are not severable. Executives empowered to rule by executive order and emergency decree can – and indeed strive to – enact their constitutional agendas without having to worry as much about the courts. We have seen in a world of “separation of parties, not powers” that Congress may not impose much in the way of constraints. In this sense, when thinking about resort to the courts, progressives are not choosing between constitutional issues of presidential power and all others. Their substantive constitutional commitments hinge on a successful defense against presidential supremacy in moving policies that they abhor. That is, unless there is any thought that Democrats would want to take this model of supreme executive power on as their own, when their next turn in the Oval Office comes about. Perish that thought.

As for the argument that progressives should expect less from the courts and more from strategies of political action directed toward winning elections and shaping public opinion: well, yes, and not just as an answer to disappointments with this Court, but at all times.