The Supreme Court Isn’t Trump’s Lackey
Progressives advocating radical measures like court packing need to think again.
President Trump has a lot of obsessions. If you had to name the ones he cares about the most, the list would probably include imposing tariffs on imports, getting the Federal Reserve to lower interest rates (even if it means ousting board members who disagree), abolishing mail-in voting, ending birthright citizenship for children of illegal immigrants, and—last but not least—fighting personal lawsuits brought against him since his first administration.
And yet on every one of these fixations, the Supreme Court in its just-completed term dealt Trump a defeat. Having already ruled in February against his attempt to levy tariffs by invoking a statute on international economic emergency powers, the Court has now struck down his effort to end birthright citizenship by executive order; blocked his attempt to fire Lisa Cook as a Fed governor; permitted the counting of mailed-in ballots received after Election Day; and denied his appeal of a lower court ruling upholding the $5 million in damages for sexual abuse awarded to E. Jean Carroll in 2023.
True, the Court also overturned a New Deal-era precedent to allow Trump to reshape the Federal Trade Commission and other independent regulatory agencies by firing officials at will. This was a major victory for Trump that enhanced his power and control over the executive branch. But it was also a victory for a conservative legal theory—the “unitary executive”—that had been in development long before his presidency. The presidential power it undoubtedly magnified will be available to a Democratic president the next time there is one.
All of the above refutes the notion that the Court’s conservative Republican majority is in the tank for Trump. As such, it represents a reassuring development for the rule of law and American constitutional democracy. The Court is not a rubber stamp for Trump. The majorities that ruled against him, in various key cases, included one or more of his own appointees.
Progressive critics need to acknowledge this reality even as they understandably lament the many times the Court has reached results Democrats abhor, whether in ending race-conscious districting; allowing Trump to abrogate Temporary Protected Status for Haitian nationals and others; or permitting states to enact laws barring transgender athletes from girls’ sports. There is a difference between facilitating a long-standing, albeit controversial, conservative agenda—as each of those rulings did—and going out of your way to enable the president’s legally far-fetched or authoritarian pet projects. A Court that consistently did the latter would merit the charges of corruption progressive Democrats so often hurl at it; this one seems appropriately concerned with preserving a measure of independence and legitimacy.
This hasn’t stopped commentators and politicians from proposing radical solutions to the Court’s supposed authoritarian drift in recent weeks. A mindset of “desperate times call for desperate measures” has taken hold in the Democratic camp, with Maine Senate candidate Graham Platner among those calling for the Court to be stacked with new justices. (He has also called for at least two of the sitting justices to be impeached.)
There are many problems with such schemes, not least of which is that they are contingent upon all sorts of hypothetical events—starting with a Democrat-controlled House and Senate undoing the filibuster. Court packing would set a dangerous precedent that both parties would likely make use of in years to come, as well as inject ugly partisanship into the nation’s top court.
Thankfully, the situation is nowhere near as dire as that. And the Court seems aware of the need to protect its political capital—Chief Justice John Roberts in particular. In every case in which the Court has resisted Trump, Roberts has been in the majority, joined by the Court’s three Democratic-appointed liberals, plus a fifth or sixth justice drawn from among Trump appointees Neil Gorsuch, Brett Kavanaugh, or Amy Coney Barrett.
A Supreme Court justice can be political in three ways: inevitably, improperly, and institutionally. It’s inevitable that a justice might be influenced, consciously or not, by his or her priors about policy and ideology; presidents select them for that, in fact. In many cases, law and precedent are so open to interpretation that a certain exercise of individual judgment can’t be avoided.
At the same time, it’s improper for a judge consciously to calculate the personal or partisan pros and cons of a particular decision, and to rule based on that.
What’s occasionally necessary, and indeed admirable, is to take into account the potential impact of a case on the overall constitutional system and the judiciary’s interests within it. This kind of politically-minded judging can be thought of as judicial statesmanship.
In the Court’s just-completed term, Roberts was political in this latter, institutional, sense. He chose his battles with Trump carefully, selecting those he was likeliest to win not only on the law, but among an ideologically diverse coalition on the Court—and in the court of public opinion. Justices Clarence Thomas and Samuel Alito, by contrast, repeatedly dissented in support of Trump’s positions, even where they were least defensible and most destabilizing, as in the tariff case.
Roberts and the other right-leaning justices who occasionally voted with him advanced long-standing conservative objectives without sacrificing the Court’s independence. If the system didn’t crack under the pressure of this year’s high-stakes cases, there’s reason to hope it never will.
Charles Lane, a contributing writer at Persuasion, is a nonresident senior fellow at the American Enterprise Institute and a columnist for The Free Press.
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That's a bit too "sunshine and lollipops". Astoundingly settled decisions continue to simply be ignored, anything about originalism and what the text meant (which is often nonsensical, but in the case of birthright citizenship seemed quite simple). And with the EXCEPTION of the Fed (without a very coherent explanation) this president can now dismiss ANY official of ANY agency, regardless of statues from the legislature about their responsibilities, until he gets one that does what he wants.
The Roberts court has sided with Democrat interests many times. But Democrats don't register those things. It is always the last time they didn't get their way.