Editor’s note: This piece is cross-posted at Verfassungsblog.
As the United States Supreme Court enters its summer recess and concludes its first months of engagement with the Trump Administration’s program of “radical constitutionalism”, the progressive opposition is debating the right strategy for the conflict’s next phase. Much of this debate has focused on deep grievances with the Court itself. Many progressives view its conservative composition as the illegitimate product of Donald Trump’s manipulation of the appointments process to mold a conservative majority. For these critics, this coup of sorts continues with this majority, swayed by a well-funded right-wing movement, disregarding precedent and principled reasoning to fulfill a hyper-conservative agenda on important and divisive constitutional issues. And yet in tension with this critique is the “constitutional moment” in which the country finds itself as Trump presses an extraordinary MAGA agenda, including sweeping claims of executive authority to advance his particular brand of hard-right politics. The Court is inescapably the forum for resolution of constitutional conflict, and so progressives have nowhere else to turn. And it is in the background of much progressive thought over decades that the Court should play this role – that it is there, before the nine Justices and not in the messy world of everyday politics, that these questions should be decided.
This is the conflict – a “no win” – in which progressives experience the Court’s current engagements with these issues. Voices within this community now counsel caution, grounded in realism, in how much engagement by the Court progressives themselves should invite, as in the choice of cases they bring before it. There is often a choice: The Court cannot reach into the welter of lower court litigation and pick the issues they wish to decide (though it can reframe questions presented to it by parties). Where progressives have some control over the cases the Court will hear, say, on appeal from a lower court decision, they should stay their hand. The time has come, these commentators have suggested on this blog, for progressives to stop banging their heads against the SCOTUS wall and adopt strategies of political action as the primary line of defense against the promulgation of the Trump agenda.
This proposed program does not adequately account for the complexity of the Court’s response to the Trump era. The complexities are of various kinds, but most prominent for purposes here are 1) the Roberts Court is conservative but not a “Trump” Court, 2) the conservatism of the Court plays out very differently across two categories of cases, and it is particularly in encounters with Trump’s quest for presidential supremacism that the Court may prove over time unfriendly, in ways that matter, to his designs.
In Trump 1.0, Trump made his appointments largely through a selection process controlled by a White House counsel consulting closely with Federalist Society representatives, which embraces “conservative and libertarian” legal principles and, notably, the principle that “the separation of governmental powers is central to our Constitution.” The Justices who emerged from this process passed muster in Federalist Society terms but not in MAGA terms, which are perhaps best defined by the “radical constitutionalism” articulated by the Trump 2.0 Director of the Office of Management and Budget, Russell Vought, and grounded in a sweeping view of presidential power. Trump now realizes that this is so and has pronounced himself betrayed. “I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations,” the president raged on Truth Social. “This is something that cannot be forgotten!”
It is in the sphere of Trump’s pursuit of a supremely powerful presidency, and the means by which he and his lawyers seek to achieve it, that he may find the Court less reliable in its support for his constitutional goals. In fact, there is a case to be made that the Court is emerging from the first skirmishes in this battle with its own power, not the president’s, enhanced. As Jack Goldsmith has written, the Court was the clear winner in the recent “birthright citizenship” case which, at this stage, resolved only the question of whether lower courts could issue relief in the form universal injunctions effective on a nationwide basis. The Court quite intentionally extracted from the administration’s solicitor general a concession, duly noted in its ruling, that the executive would respect throughout the country not just the Court’s judgment in a particular case, binding on the parties before it, but also its “opinions,” which means it will follow its legal pronouncements in other contexts.
We will see how much weight this concession carries over time, but it is a significant move by the Court, and not one that the radical constitutionalism theorists would in principle be keen on. Court critics often respond to this claim by pointing to the Court’s famous decision last year in Trump v. United States on former presidents’ immunity from criminal prosecution and asking: How much more protective of Donald Trump’s interests could this Court possibly be?
This argument can be taken too far. I entirely agree with critics who are very troubled by aspects of this 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. The orders staying lower court injunctions against mass firings at the Department of Education and against the implementation of an executive order directing massive personnel reductions on an executive branch-wide basis are troubling. But there is yet no final resolution of these issues. The Justices are swamped with cases and making decisions by interim order. In some of those cases, the Court may be signaling where it will end up once – or if – it grants full review of the appeals from lower court decisions. In other cases, any such signal may be hard to detect. The challenges it faces are truly – to deploy an overused term, and yet accurately – unprecedented, which means that there is little to support predictions about ultimate outcomes.
What is more certain is that on many constitutional issues progressives care about – such as LGBTQ and reproductive rights, or Establishment Clause matters – the Court majority will be conservative. That conservatism in various forms is precisely what a Republican administration, working with Federalist Society support and a Republican Senate – wanted, and it is what they got. This is where realistic expectations that determine sound case-selection strategies make perfect sense. But in the defense against the basic lawlessness of this administration that drives its “radical constitutionalist” view of presidential power, the Court’s role is unavoidable. Moreover, the available body of evidence provides no reason to think that it will rule as this president’s always dependable ally.
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.