The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What I Expect from the Court's Upcoming Term
Why I'm (mildly) optimistic about the Court's confrontation with presidential power
It has become commonplace to predict that the Supreme Court's current Term will be as consequential, for the Court and for the country, as any in living memory. Across the board, the Administration has implemented dozens of policies that have been deemed unlawful – unauthorized by statute and/or unconstitutional – by lower courts. Congress could do much to rein him in; as Madison[1] put it in Federalist 51, "the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." But Congress has, for reasons and in ways we need not go into here, appears to have abandoned all of its encroachment-resisting powers to the Executive branch.
That leaves the Judiciary. The Supreme Court, having disposed of a number of procedural matters pertaining to the many legal challenges to Administration action currently flooding through the federal court system,[2] is soon to confront the merits of those challenges this Term, starting with the Tariff Cases (Trump v VOS Selections and Learning Resources v. Trump) on Nov. 5th and almost certain to include challenges to the birthright citizenship Executive Order, the Administration's federalization of the national guard to quell civil disturbances, the President's power to condition federal funding on various extra-statutory criteria of his own devising, the Administration's purported exercise of its powers under the Alien Enemies Act in its deportation program, and any number of other equally weighty matters.
Many friends, colleagues, and family members - not to mention commentators and pundits - who are both deeply worried about the direction in which the Trump Administration is taking the country (as am I) and, more to the point for this blog post, deeply pessimistic about the Court's willingness to stand up to the President's authoritarian tendencies and to rein him in.
"The Court," they say, "has been giving the Administration one victory after another. It is clearly in Trump's pocket, willing to rubber-stamp whatever outrageous moves he makes."
I don't agree. I'm not among those who think the Court is in Trump's pocket, and I'm not merely hopeful but actually rather optimistic that, when confronted with the merits of the specific cases involving this Administration's penchant for lawlessness, the Court will push back against Presidential overreach.
To begin with, while I'm certainly not a big fan of many of the Court's rulings in the Administration's favor – Dobbs, the immunity decision, the non-party injunction decision, the Court's penchant for granting "emergency stays" when Administration lawlessness has been enjoined by the lower courts - I do not think they represent any kind of special fealty that the Court is paying to this particular President. These cases involved issues that had been "in play" for years, at least in conservative legal circles, and in which both sides had strong arguments in their favor. The fact that a conservative Court chose paths that neither I nor my friends agree with is perhaps unfortunate and unwise, but hardly a sign that it has abandoned its role of providing reasoned judgments. Not exactly "man bites dog" stuff.
As such, I don't think that the Court's decision-making record thus far presages decisions that are particularly Administration-favorable on the merits questions coming up this Term.[3]
In a revealing interview last week with Ross Douthat in the New York Times, Justice Barrett put her finger on what I believe is the crux of the matter.
Douthat: We're living through an era where it seems to a lot of observers that Congress is increasingly unwilling to or is at least unexcited by the exercise of its own powers and that this is especially true when it's under the control of the same party as the White House. There's a broad sense that Congress is doing less and, in a dynamic relationship to that, the presidency is doing more.
As a member of the third branch, the other branch, do you think that considerations like that have any role to play in the court's obligation? In the sense that something like the unitary executive theory might have a similar theoretical basis in 1975 as it does in 2025, but in 1975, the executive is relatively weak, hemmed in by the post-Watergate Congress and more limited. Today, I think it's fair to say, the executive is much more powerful than it was at that period.
Is that something that enters into judicial considerations when you're thinking about the cases that you take, the scope of the rulings that you decide to make? Does the existing balance of power between the branches matter at all to jurisprudence?
Barrett: I think at a broad level, it's important to say — and I think this is actually a disconnect between what observers of the court expect to see and what the court can actually do — the press and the public live in a particular moment. You're either living in the Watergate years, or you're living right now, and you're seeing everything through that lens. The court has to take a longer view, and so the content of doctrine cannot turn on just the precise political moment.
Because the doctrine — we are drawing on cases that have come before. And this isn't anything to do with just being an originalist; the court decides cases not just in a "one ticket, this train only." What we decide today is going to apply tomorrow. . . . So what we decide now [might] be cited seven, eight or nine presidents from now.
We have to be very careful that the content of the doctrine isn't fashioned just for the moment, because one reason that the Constitution has been able to survive is that it isn't contingent only on a particular period.
So, according to Justice Barrett, in all of those cases, including the big victories, the Court is treating this President as it would treat any President, applying the same – very conservative, to be sure, but principled – standards to the questions presented as they would for any other President. To put it more bluntly, Justice Barrett did not vote to overturn Roe v. Wade because she owed Trump a favor for having nominated her, or to mollify those in the anti-abortion movement; she voted to overturn Roe because she thought it was wrongly decided. Nor did she vote to prohibit "universal" injunctions because she thought Trump should be allowed to round up Venezuelans and deport them without a hearing or revoke the security clearances and bar from federal contracts any lawyer working at a firm which hired someone he doesn't like, but because she thought those injunctions violate the principle that courts cannot bind non-parties.
This may all be baloney, of course – soothing words for public consumption while concealing more sinister motives. But I prefer to take Justice Barrett at her word, and I think most of the Court's Administration-related decisions up to now can be defended on these grounds – wrong-headed and ill-advised, perhaps, but principled, with ample support in the law. They have benefitted Trump immensely, but that is an incidental effect of the doctrines the Court has, for other reasons, adopted.
I think that much of the frustration that friends, colleagues, and commentators express about the Court's behavior arises from a feeling that while even-handed application of neutral General Principles is all well and good for ordinary times, these are not ordinary times. The Court, in this view, should fashion its decisions "just for the moment" because we are in a moment unlike any before in the nation's history, and General Principles may well be inadequate when confronted with a reality that nobody saw coming when they were first crafted and for which they were not intended. .
Take, for instance, Trump v. Casa, which ended the practice of issuing "universal" or "non-party" injunctions by district courts. The General Principle – that courts cannot bind non-parties – is surely one worth respecting. But where application of that principle grants a free hand to a President who is intent on a vast range of law-breaking . . . well, no President would ever do such a thing, right?
Trump has broken through the "No President would ever do such a thing" barrier many times, and it is not irrational to suggest that the Court's decisions should reflect that reality. A President's overreach looks very different depending upon whether it is an isolated instance or the centerpiece of his governing strategy.
But putting all that aside, the good news is that, if indeed the Court is applying neutral, Trump-independent principles to the merits cases that they will soon confront, he's going to lose – not always, of course, but often. It is difficult – almost impossible – for me to believe, for instance, that the Court is going to endorse a president's unilateral and essentially unreviewable authority to take whatever steps he deems necessary to ward off an "international economic emergency,"[4] or an "invasion or predatory incursion,"[5] or a "domestic insurrection" or "rebellion."[6]
If nothing else, I hope Publius was correct in Federalist 51: in order to provide "security against a gradual concentration of the several powers in the same department . . . ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place." Where's the fun of being a Supreme Court Justice if a President can do whatever he wants to do?
And I'm especially interested to see how the "originalists" on the Court respond in these cases. Can there be anything more in tune with the "original public understanding" of the Constitution than the idea that unreviewable Executive authority is tyranny, and is in the bulls-eye of the entire Constitutional scheme?
[1] Or it may have been Hamilton; scholars are, I'm told, of two minds about the authorship of Federalist 51.
[2] E.g., most notably, Trump v. United States (granting the President immunity from criminal prosecution for his "official acts," Trump v. Casa (ending the practice of issuing "non-party injunctions" by district courts, and, as I discussed here ("The Lowly Stay"), the practice of granting stays of the injunctions that have been entered by the lower courts.
[3][3] In particular, the Court's penchant for granting stays in cases where Administration officials have been enjoined by the lower courts does not tell us which way the Court is leaning on the merits of those cases. As I discussed elsewhere (see "The Lowly Stay"), the Court's stay decisions involve a finding only that the Administration has made a "strong showing," or has a "fair prospect," that it will prevail when the Court eventually reaches the merits of the cases, not that a majority of the Justices think the Administration is going to prevail.
[4][4] There's a strange feature to the debate over Trump's tariffs that hasn't received as much attention as it deserves. The challengers (including, of course, our own Ilya Somin) are asserting that Trump has exceeded his statutory authority under the International Economic Emergency Act: (a) His declaration that we are in an "economic emergency" is unsupported by any factual basis, and (b) even assuming that the declaration is valid, the "emergency" powers granted under the statute do not include the power to impose tariffs.
On 60 Minutes the other night, Trump again asserted that it will be the "ruination of this nation" if the Court voids his tariffs. One would think, with so much at stake, that a Republican president would have simply asked the Republican-controlled House and the Republican-controlled Senate to give him the power that he deems so central to the survival of the Nation. No?
[5] See, e.g., W.M.M. v. Trump and J.G.G. v. Trump (rejecting the Administration's claim that its deportation (with no opportunity for judicial review) of Venezuelan nationals deemed to be members of Tren de Agua was not authorized under the Alien Enemies Act of 1798).
[6] See, e.g., Newsom v. Trump (Posse Comitatus Act and the deployment of federal troops to quell civic disturbances).
