The Volokh Conspiracy
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Luttig: "A rebuke from the nation's highest court … could well cripple Mr. Trump's presidency and tarnish his legacy"
No, this fight will not end well for the courts.
Former-Judge Luttig wrote a guest essay in the New York Times, titled "It's Trump vs. the Courts, and It Won't End Well for Trump." The essay concludes with these two paragraphs:
If the president oversteps his authority in his dispute with Judge Boasberg, the Supreme Court will step in and assert its undisputed constitutional power "to say what the law is." A rebuke from the nation's highest court in his wished-for war with the nation's federal courts could well cripple Mr. Trump's presidency and tarnish his legacy.
And Chief Justice Marshall's assertion that it is the duty of the courts to say what the law is will be the last word.
I think every sentence is demonstrably incorrect. First, the Court has no power to "assert" its own authority. The Court lacks the power of the sword or purse.
Second, I can say with a high degree of certainty that a "rebuke" from the Supreme Court would do little to "cripple Mr. Trump's presidency and tarnish his legacy." As for the "legacy," if two impeachment trials, an alleged insurrection, and federal and state indictments didn't keep him out of the White House, then a few pages in the U.S. Reports will hardly leave a mark. By contrast, I think such a feeble effort to control Trump very well could "cripple" the Supreme Court.
Third, Luttig tries to invoke Marbury, but in that case Chief Justice Marshall had the good sense to not assert any authority against Jefferson. The Court did not order the Jefferson Administration to deliver the commission, as such an order would likely be ignored. Likewise, Marshall never ordered President Jackson to do anything. Marbury teaches the judiciary to avoid unwinnable conflicts with the President.
Let me try to put this conflict in perspective. Donald Trump was able to roll over Jeb Bush, Hillary Clinton, Joe Biden, Kamala Harris, and every other politician that stood in his path. Does anyone think John Roberts can do better? Does anyone think Roberts's press statement to respond to Trump's social media post even moved the needle? Op-eds like this from people like Luttig likely give the Chief some faint echoes of praise within his echo chamber, but will not register beyond the Capital District. (I think Texas would be considered District 12.)
I'll repeat what I wrote last week:
The Constitutional Crisis is a coin with two sides. Trump causes judges to overact, and judges cause Trump to overreact. Any resolution must be bilateral, not unilateral. Roberts could de-escalate the situation by promptly reversing some of these out-of-control lower court rulings. But instead, he would rather sit on his hands and pontificate. I've long said that the Chief Justice is living in a different reality than the rest of us. This episode proves it. There are three co-equal branches of government; the judiciary is not supreme.
Chief Justice Marshall had the good sense to avoid a confrontation with Presidents Jefferson and Jackson. But Roberts apparently thinks this sort of statement will make everything better. But every time Roberts puts pen to paper to avoid some perceived catastrophe, he usually invites an even greater one down the road. This is a lesson he has not learned during his tenure.
I think Roberts's decision to punt on the USAID case will come to be a defining moment of his Chief Justiceship, and not in a good way. Roberts may not see that, but I hope Justice Barrett will.
