Will the Second Trump Administration's Extremism Rebuild the Legitimacy of the Roberts Court?
Very soon--perhaps just hours or even minutes after this blog post goes live--the Supreme Court will rule on the Trump administration's application for a stay of Federal District Judge Amir Ali's order that it comply with a previously entered temporary restraining order against the freezing of $2 billion in USAID payments. As readers are probably aware, on Wednesday of last week, Chief Justice Roberts issued an administrative stay to give the full Court time to consider the application. He also gave the plaintiffs two days to file a response. They did so on Friday.
To my mind, the plaintiffs' response is persuasive, but the case in its current procedural posture implicates some fairly technical questions about civil procedure--including what's appealable and how--as well as the interaction between administrative law and statutes concerning how contractors can sue the government. It is therefore possible that the outcome of this particular case--whatever that outcome is--could be an unreliable measure of how the Court will rule if and when it is called upon to directly adjudicate the merits of the Trump administration's assertions of sweeping authority not to spend money appropriated by Congress in blatant defiance of the Impoundment Control Act and the Constitution's assignment to Congress, not the president, of the power of the purse.
More broadly, we might ask how the second Trump administration will fare on the merits in the Supreme Court. My tentative prediction is mixed.
Given the Roberts Court's past decisions blocking congressional efforts to restrain the president's power to remove high-ranking government officials at will, I would not be at all surprised if the Court overrules (or narrows to a virtual dead letter) Humphrey's Executor v. United States and thus permits at least some of Trump's efforts to assert control over independent agencies. To be sure, as I explained last month, in doing so, the Court would need to walk a fine line to avoid giving the president direct control over the Fed and thus monetary policy, but it is easy to imagine the Justices inventing some hitherto unknown legal distinction that does so or, more dangerously, trusting Trump's assurances (in this Executive Order) that he has no designs on monetary policy.
Other assertions of executive power will likely fare more poorly. At least until proven otherwise, I shall assume that the Supreme Court will abide by at least those precedents that fit within the conservative super-majority's ideological druthers, even if that means sometimes ruling against the Trump administration. As I noted a few paragraphs above, there really is no plausible basis for the assertion that the president can legally decide not to spend money Congress has appropriated, absent statutory authorization to do that. That is, Congress can and sometimes does say to the president, spend up to $X on project Y, but if you can accomplish Y for less than $X, return the excess to the Treasury. But when Congress doesn't say that, the statutory and constitutional law is clear that the president lacks the power to impound funds. Notably, even the dissenters in the Line Item Veto case did not think otherwise; they simply read the statute at issue there as the equivalent of a spend-up-to delegation. And the other leading case denying the president impoundment authority, Train v. City of New York, was unanimous.
I also expect the Court to reject the Trump administration's effort to strip birthright citizenship from children born in the United States to undocumented immigrants and even children of some non-citizen parents lawfully present in the United States. I can imagine one, two, or perhaps even three Justices dissenting from such a ruling, at least with respect to the children of undocumented immigrants, but the language of Section 1 of the Fourteenth Amendment, the very longstanding practice, and the practical complexities that would ensue in implementing the citizenship restriction would very likely combine to lead the Court to rule against the administration.
I'm less confident in my predictions with respect to other Trump policies likely to come before the Supreme Court, but my overall sense is that Trump will win some cases and lose others. The Court's "centrist" conservatives (Chief Justice Roberts and Justices Kavanaugh and Barrett) don't like to see themselves as partisans. (Neither does Justice Gorsuch, but on most though not all issues, his ideological druthers will frequently lead him to vote with Justices Thomas and Alito.) Thus, overall, I expect the Court to adjudicate the coming Trump administration cases more or less according to the Justices' ideological priors rather than simple partisanship.
If that's correct, the resulting pattern of results will suggest that the Supreme Court is acting as a neutral arbiter of the law. Indeed, the Court might even appear to fall within the Court's most noble tradition of standing up for the rule of law: rejecting President Truman's assertion of sweeping wartime authority in the Steel Seizure Case; ruling against school segregation in Brown; and, with the Chief Justice appointed by the sitting president leading the way, ordering Nixon to turn over the tapes.
That appearance of courageous evenhandedness will be false. The second Trump administration has shifted the Overton window so far that even a mixed record in the Supreme Court should count as a dramatic rightward change in the law. Trump is thus a gift to the Roberts Court. By attempting a fair number of blatantly unlawful actions that the Court can strike down as going too far, he allows the Court to have its cake and eat it too. The Court can continue to pursue its ideological agenda even as it appears to be evenhanded based on the mix of results in the cases it decides.
Some readers will no doubt think that even that characterization is too generous to the Supreme Court. If Trump is a gift, they will think, he is a gift the Court bestowed on itself by allowing him to run for office at all and then granting him nearly blanket immunity against criminal prosecution.
Although I believe the Court badly erred in both Trump v. Anderson and Trump v. United States, I regard the picture as slightly more complicated. The former, after all, was unanimous as to result--and even though the Democratic appointees thought that the majority went too far in precluding nearly any means of keeping Trump off the ballot, as a practical matter the alternative means that Justice Sotomayor suggested in her concurrence in the judgment--some federal determination of Trump's eligibility without new legislation from Congress--was not on the table. So Trump's ability to be on the ballot was not the result of an ideological or partisan split on the Supreme Court.
Meanwhile, Trump v. United States was and remains an abomination, but it probably wasn't causal in Trump's return to office. Had the Court allowed the prosecution to go forward, the case wouldn't have wrapped up before the election. I do blame the Court--and the conservatives in particular--for even taking the case rather than denying cert or quickly and summarily affirming the rejection of Trump's immunity claims. Had the Court done so, it's possible that Jack Smith's team could have gotten to trial and conviction before the election, although Trump's lawyers would have been kicking, screaming, and filing motions with the purpose and effect of further delay on a daily basis. And as we know from the New York case, even a conviction might not have dissuaded anyone from voting for Trump.
In any event, whether or not one thinks the Supreme Court played a causal role in Trump's return to office, I continue to think that the Court's reputation as an apolitical institution will be enhanced by its occasional rejection of Trump's positions. As I've explained, that will be an undeserved boost for the Court, but for the next 1,419 days (assuming the letter and spirit of the 22nd Amendment are observed), it will be useful to have a Court that is perceived to be legitimate.
That's not because the courts can save us from Trump, Elon Musk, and the authoritarian-appeasing quislings who run Congress. As M. Gessen's Rule #3 for surviving autocracy posits, "institutions will not save" us. But that doesn't mean that institutions are irrelevant. The challenge going forward is to use the courts as much as we can to hang onto whatever shreds of legality and decency we can, without placing faith in them as a substitute for other forms of resistance. Seen in this perspective, an unearned boost to the Supreme Court's perceived legitimacy is in the public interest.