The Volokh Conspiracy

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The Supreme Court's Trump Exceptionalism

My essay in today's New York Times.


I have an op-ed in today's New York Times reflecting on the most recent Supreme Court term. I was originally going to write a piece that said "the Court is doing fine, basically!" but ended up concluding that there had to be a giant asterisk next to that.

It is currently titled A Principled Supreme Court, Unnerved by Trump. (My working title was "The Trump Exception." A cheekier title would have been "'Trump Derangement Syndrome' Derangement Syndrome.")

From the beginning:

At the end of another momentous term, the Supreme Court has issued major rulings that will reshape the law. Like much that the court does today, these decisions, in areas like administrative law, have been widely criticized as corrupt or illegitimate.

For the most part, this criticism does not give the Supreme Court enough credit. In case after case, it has rightly emphasized the importance of turning to historical understandings in deciding constitutional cases rather than imposing modern policy views. Most of the court's decisions are principled and sound — most but unfortunately not all.

There were two particularly salient blemishes on the court's performance this year — and they are particularly unfortunate because they related to Donald Trump.

From the middle:

Trump v. Anderson's holding lacked any real basis in text and history and also is at odds with the basic structure of the Electoral College, in which states have primary authority to decide how their slates of electors are chosen. The ruling's real function was to let the court reverse the Colorado Supreme Court and avoid the political firestorm that might have ensued, without requiring the court to take sides on what happened on Jan. 6. . . .

[Trump v. United States's] reasoning went well beyond any specific part of the Constitution or any determinate constitutional tradition. Its methodology was explicitly grounded in Nixon v. Fitzgerald, a policymaking precedent from the 1980s akin to ones the court has criticized elsewhere. Justice Barrett, who joined only part of the majority, wrote a concurring opinion proposing a narrower, much more grounded form of immunity limited to core executive acts.

What is going on? Some critics say that everything the court does is generally unprincipled and illegitimate, which is not correct.

Others may suggest that the court is pro-Trump . . .

What is more likely is that in these cases, the court sees itself as trying to save the country from other institutions' disproportionate responses to Mr. Trump. It believes that lower courts and the Justice Department have succumbed to a version of Trump derangement syndrome, which is said to afflict so many liberal elites and even Never-Trump conservatives.

And the end:

The court is motivated by statesmanship, which the country sorely needs today. The problem is that this statesmanship is a form of the kind of outcome-oriented policymaking that the court disparages in other contexts. It trusts states to handle the homelessness crisis but not ballot access for insurrectionists, even though the Constitution trusts states with both. It trusts juries to handle fines for securities fraud but not punishment for abuse of the presidency, even though the Constitution trusts juries with both.

When dealing with Mr. Trump in particular, the court is so sure that our other institutions cannot be trusted that it fails to look in the mirror.

You can read the whole thing here. And as noted yesterday, I have a much more extended and nuanced breakdown of the immunity case on the Divided Argument podcast.