Protecting the rule of law under Trump is going to be precarious

The justices must decide, in the wake of last term's decisions, whether they will play any role in that aim. And, for paid subscribers: Closing my tabs.

The coming period is one that will be difficult for the rule of law.

Donald Trump does not respect the rule of law while insisting that others — of his choosing — must respect his interpretation of the law.

That is, in and of itself, an alarming scenario when it’s the president of the United States who holds those views. We saw the harm that comes from that in the first Trump administration.

When you add to that the fact that the U.S. Supreme Court’s conservatives — led by Chief Justice John Roberts — told Trump and the nation that Trump cannot face criminal consequences for most official actions while president, and we’re entering a dangerous moment. Justice Amy Coney Barrett would not have gone as far as the five men on the court, and Justice Sonia Sotomayor dissented for her and Justices Elena Kagan and Ketanji Brown Jackson, but the five men went far toward creating a precarious moment now that Trump is headed back to office.

Roberts has almost always been a vote against voting rights and for corporate interests. During the first Trump administration, however, he did help at curbing some of the administration’s most extreme moves, including partially blocking one of the earlier of several iterations of the travel ban and blocking the citizenship question the Trump administration wanted on the Census.

But, in addition to the immunity ruling, this past term Roberts also wrote the majority opinion constraining the use of a criminal obstruction statute in the Jan. 6 prosecutions. Barrett wrote the dissent for her, Sotomayor and Kagan.¹ In the Fourteenth Amendment “insurrection” disqualification clause case, Roberts also joined the 5-4 majority going further than the Democratic appointees and Barrett.

Particularly if the Republicans keep the House, there are no strong federal institutional limits that will be placed on Trump outside of the peculiarities of the personalities and the rules of the House, the Senate, and the Supreme Court. Now, luckily, there are many personalities in the House and rules in the Senate that make things more complicated for Trump than he might like.

So, what about the Supreme Court?

The Supreme Court — particularly this Supreme Court — is not going to do much to provide institutional limits. Close calls, let alone liberal projects, are not going to succeed. But, there are two areas that are worthy of thinking about. First, narrow challenges brought on conservative grounds — using the reasoning of the right — could find success. This is not giving up a progressive or liberal vision; it is fighting with the tools that can work. (At the same time, efforts should be made, in lower courts and in dissents, to work on advancing liberal and progressive ideas.) Second, and key to this discussion: There will be necessary challenges to true overreaching — meaning, illegal or unconstitutional actions — by the incoming Trump administration.

The Democratic appointees will need to stand strong. There are certainly times when they will decide not to write, whether due to timing or behind-the-scenes politics of the court relating to efforts in other cases. We don’t know what’s going on at any moment, and I am often willing to give the justices space to decide what the best reaction is at any specific moment. That said, we are entering a moment where the voices of Sotomayor, Kagan, and Jackson will be more essential than ever. They must make the case to Americans, clearly and plainly, when the court gets it wrong — particularly if that should happen in a case where the Republican appointees bless Trump taking lawless action.

Of the Republican appointees, Barrett appears to be the most skeptical of Trump, who appointed her. Whether that is about Trump specifically, executive power, January 6, or some combination of those things is not yet clear — but, in all three cases last term, she took a position different than the other five Republican appointees. She is also the only Republican appointee on the court currently who never worked for a Republican administration in Washington. Barrett’s skepticism likely will be put to the test repeatedly in the coming years.

If Barrett’s trend continues, Roberts often will be the pivotal vote when challenges to Trump’s actions reach the court. The past year doesn’t bode well for his votes when that happens, but he must reconsider. If he does not, an ever-growing Trump administration might eventually believe — and then insist — that it is not subject to the court’s will. Perhaps Roberts’s gambit was that Trump would lose and the country could go forward without needed to delve further into these difficult questions. But, Trump won. And now, Roberts is going to have to live with the “energetic executive” that he endorsed in July. He must get ready to push back when — not if, but when — Trump goes too far.

For Justice Brett Kavanaugh, although joining Roberts and Barrett in other instances, it is unlikely that he will join them in reining in executive power unless he can be convinced that clearly established rules were not followed. But, he, too, should stay on guard for the larger project: America. Kavanuagh can vote to support a strong executive, but, in advance of the coming years, he would do well to figure out where he sees needed lines — and be ready to vote to enforce them when Trump’s administration runs right past them.

As was clear from the first Trump administration and from the years since, Justices Clarence Thomas, Sam Alito, and Neil Gorsuch are unlikely to challenge the Trump administration except in individually idiosyncratic cases.

Forces outside of the court have a role to play at the court, too.

Democratic-led states will have to step up, particularly attorneys general’s offices. (This will be particularly important if Republicans have both the House and Senate majority.) Bringing cases, to be sure, but also playing a clear role at the Supreme Court. Where the Republicans had Texas and Florida, Democrats have California and New York. They are outsized states — and they must use that. One of the many responsibilities that they will have in the coming years is to make the stakes clear to the justices and to America as often as is necessary. They must do all they can to play as much of an institutional role as is possible at the Supreme Court. That said, I will add one note: One need not be representing a large state to play an important role at the court. Alabama Solicitor General Edmund LaCour, for example, has made an appearance before the justices in a merit case in each of the past three terms, not to mention shadow docket and amicus briefing.

Congressional Democrats and organizations — partisan and otherwise — and any remaining congressional Republicans willing to speak up must do so when necessary, both in public and to the court.

Public pressure will have to be brought to bear on the court. It has always been true, but it has been shown in recent years that the court is not immune to criticism. If the Supreme Court does not do its job in the coming years, lawyers, academics, and the public will have to stand up and let their voices be counted — and heard.

This will, of course, be true of Trump’s acts directly, and of Congress, but, the Supreme Court cannot be left out of the accountability equation — and any groups or individuals making their plans for responding to the coming administration should remember that.

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Closing my tabs

This Sunday, here are the tabs I’m closing: