Will the Supreme Court stand up to Trump?
The election of Donald J. Trump promises to restore to the Supreme Court the working conservative majority that Chief Justice John G. Roberts Jr. lost a year ago when Justice Antonin Scalia’s death left the court deadlocked 4-4 on important issues. But if the preelection possibility of spending the next years or decades in the minority was scary for the chief justice, he now faces something even more daunting: responsibility.
Trump’s hyperactive first days in office, along with the evidence that the two Republican-controlled houses of Congress will do the president’s bidding with few questions asked, leaves the judiciary as the only branch of government standing between the new administration and constitutional chaos. Consider what would have happened last weekend had half a dozen federal judges not stepped in to prevent the immediate ouster from the country of legal permanent residents and carefully vetted refugees and visa holders.
Whether those particular cases will make their way to the Supreme Court is uncertain. But the extraordinary scenes of recent days strongly suggest that the Roberts court will find itself in a national security spotlight. That’s an uncomfortable but hardly unknown place for the court to be: It was during the years after Sept. 11 that the court of Chief Justice William H. Rehnquist surprisingly pushed back against the Bush administration’s effort to create a legal black hole at Guantánamo Bay, where the administration had mistakenly calculated that detainees could be hidden away outside the reach of federal judges.
The judiciary is all that stands between the president and constitutional chaos
To the extent that the presidential campaign focused on the Supreme Court with any specificity, the attention was on abortion, religion, gay rights, guns and other familiar issues on the social agenda. But going forward, the Roberts court may find the most pressing issues on its docket to concern core questions of civil liberties and the separation of powers.
When the history of this period is written, the court will be judged by its answers to those questions. When the president, aided by his inner circle and his congressional enablers, pushes through some norm-shattering order, wipes away duly promulgated regulations with the flourish of a pen or drives a truck through the wall between church and state, where will the Roberts court be? (And where will Trump’s Supreme Court nominee, the appeals court judge Neil M. Gorsuch, be?)
It’s hard to imagine two figures on the current public stage less alike than the button-down chief justice and the flamboyant president.
What struck me eight years ago, when Roberts administered the oath of office to Barack Obama, was how each man embodied a different face of the generation that came of age after the fires of the 1960s had died away, both drawn by talent and ambition to the same place, Harvard Law School, from which they emerged to embark on such different paths to power.
Roberts administer the oath to Donald Trump, what struck me was the unlikelihood that these two men would even be sharing the same stage — and not only because during the campaign, Trump called the chief justice “an absolute disaster” for his votes to preserve the Affordable Care Act.
If Donald Trump is the in-your-face chief executive, John Roberts has perfected the art of being the nearly invisible chief justice. He can be tough on the bench during arguments and in the justices’ private conference as well, but in public he exudes a self-deprecating diffidence.
Here’s an example: In the early 1980s, when Roberts was a Supreme Court law clerk, Chief Justice Warren E. Burger would travel every year to the American Bar Association’s midwinter convention to give a “state of the judiciary” speech, unrolled as a grand occasion in the manner of the State of the Union. His successor, William H. Rehnquist, dialed the speech back, issuing it through the press office rather than delivering it in person.
At the end of 2009, his fifth year on the job, Roberts boiled it down to one page. He said that “when the political branches are faced with so many difficult issues, and when so many of our fellow citizens have been touched by hardship, the public might welcome a year-end report limited to what is essential.” All that people needed to know was that “the courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties.”
Imagine President Trump stepping back from the stage in such a manner.
The chief justice, a strategic thinker with exemplary work habits, is every bit a match for the president. He is a very good lawyer with very conservative instincts, and his own long-range game plan includes getting the government out of the business of taking account of race, even for the purpose of protecting voting rights or preserving the hard-won gains of integration. On rare occasions, notably in the two Affordable Care Act cases, his lawyerly instincts outweigh his ideological preferences.
The question now is to what extent he is willing to lead his court in standing up against a president who, it is hardly far-fetched to imagine, may trample the First Amendment, withhold information the law regards as subject to disclosure, or defy court orders on immigration or other matters. The signs are equivocal at best. Roberts was not on the Supreme Court for the first round of post-Sept. 11 cases, and was recused from the second round because he had participated in the case, Hamdan v. Rumsfeld, as a federal appeals court judge.
Then in 2008 came Boumediene v. Bush, a 5-to-4 decision with a majority opinion by Justice Anthony M. Kennedy. It held that the Guantánamo detainees had a constitutional right to petition federal judges for writs of habeas corpus. Roberts signed a hyperbolic dissenting opinion by Scalia that opened with “America is at war with radical Islamists” and went on to warn that the decision “will almost certainly cause Americans to be killed.” Perhaps more to the present point, the chief justice also filed a dissenting opinion of his own, in which he asked rhetorically who had won the case. The answer, he said, was “certainly not the American people, who today lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.”
Will that hands-off attitude define the Roberts court in the Trump era? Is it limited to foreign policy or does it extend to civil liberties and other domestic issues? Because Republicans won’t press Gorsuch on such questions — or any questions — Democrats better be prepared to do it themselves. And they shouldn’t accept the formulaic response of “I can’t answer because it might come before the court.” As Tocqueville observed nearly 200 years ago, in this country, everything and anything is likely to come before a court. That answer isn’t good enough.
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A decade ago, two Yale law professors offered a proposal in an article that has received too little attention. The authors, Robert Post and Reva Siegel, maintained that rather than ask nominees how they would decide current or future cases — questions that nominees properly refuse to answer — senators should ask how they would have decided past Supreme Court cases. “Such questions,” the two professors wrote, “serve the democratic design of the confirmation process by revealing the operational content of the nominees’ constitutional commitments.”
Asking Gorsuch — or any other nominee — to describe how he would have approached the Boumediene case does not bind him to any result in a future case. All his answer would do is reveal how he might approach a high stakes, high salience clash of constitutional principles. Is there such a case in the Roberts court’s future? Linda Greenhouse is a contributing op-ed writer.