The Trump presidency is mired in litigation, facing some 250 lawsuits over its hailstorm of executive orders, substantially more orders than had been filed at this point during his first term. The unprecedented flood of legal action has for the moment scotched some of Trump’s signature priorities, but courts have cleared others to move forward while litigation continues.
Judges have temporarily frozen Trump’s efforts to punish elite law firms and Harvard University, as well as to deport immigrants without due process. Courts have allowed Trump to fire independent regulators while litigation continues. The Court of International Trade blocked the 10 percent tariffs Trump imposed on all foreign products, as well as higher levies applied to imports from several dozen nations, but an appellate court stayed the ruling for the time being.
Trump has been notoriously cavalier when it comes to compliance with court orders seeking to reverse his administration’s actions. We hear a lot about the potential for a constitutional crisis these days, but no one can tell us exactly what that is. Perhaps the definition channels Justice Potter Stewart’s famous test for hard-core pornography: “I know it when I see it.”
Presidents have sometimes been at odds with the Supreme Court. In 1937, Franklin D. Roosevelt, irked that the court was striking down his New Deal legislation in a series of five-to-four decisions, proposed a court-packing bill to “save the Constitution from the court and the court from itself.” Harry Truman didn’t like it when the court invalidated his seizure of the steel mills, and Barack Obama was critical of the Citizen’s United decision opening the flood gates to big money in politics. But, generally, presidents have sucked it in and followed Supreme Court decisions and precedents.
Trump has been even more outspoken. He is particularly upset with one of his appointees, Justice Amy Coney Barrett. And he has been critical of the decisions of two others, Justices Neil Gorsuch and Brett Kavanaugh.
Trump claims without basis that a “judicial coup” is threatening democracy by reining in his executive authority, and his supporters have called for the impeachment of judges who have rendered decisions with which he disagrees. Most ominous, he has played it close to the chalk, maneuvering to end run or otherwise flout court orders.
“The Supreme Court ... is not allowing me to do what I was elected to do,” Trump lamented on Truth Social, after the high court’s sternly worded order temporarily blocking deportations of alleged gang members in northern Texas.
The next day, Trump circulated an ominous post from conservative legal apparatchik Mike Davis, which blasted, “The Supreme Court is heading down a perilous path.”
The same observation may be said of Trump. Most notoriously, his administration illegally rendered Kilmar Abrego Garcia to rot in a prison in El Salvador, admitting it could pick up the telephone and bring him back. The Supreme Court ordered the administration to “facilitate” his return, but Trump has left the Oval Office phone on its cradle.
A federal judge in Massachusetts ruled in May that the administration “unquestionably” violated a court order by deporting migrants to South Sudan without giving them adequate notice and opportunity to object. The administration ignored a court order to turn around two planeloads of alleged Venezuelan gang members because on the grounds that the flights were over international waters and therefore the ruling didn’t apply. And a judge found that the White House had failed to comply with a temporary order to unblock federal funding to states that had been subjected to a sweeping freeze.
Alexander Hamilton described the judiciary as “beyond comparison the weakest of the three departments of power.” He reasoned that the court only has the power of judgment. Its authority relies not on coercive ability, but rather on the trust of both the other branches of government and the public in its integrity as an impartial arbiter of the law.
Once in power, Trump conspicuously moved a portrait of Andrew Jackson into the Oval Office. It was Jackson who is thought to have said, “John Marshall has made his decision, now let him enforce it.” Chief Justice Marshall’s decision was really a confrontation with Georgia, not with the president, and historians doubt that Jackson ever uttered those famous words, but they make plain that if a president decides to defy court rulings, there isn’t anything the court can do. After all, he commands the armed forces.
Whether Jackson said it or not, Chief Justice John Roberts gets the point. His court has steadily thrown crumbs to both sides, expanding presidential power — but not without limits. So far, he has succeeded in walking the tightrope between sanctioning an unprecedented expansion of executive power and confronting Trump when he gets out of line.
The justices have allowed the administration for now to bar transgender troops from the military, fire independent agency leaders without cause, halt education grants and remove protections for as many as 350,000 Venezuelans migrants admitted under a Biden-era program.
Trump has said that he has great respect for the Supreme Court and that his administration will abide by its decisions. But do you trust him when his social media posts have bristled with anger at the courts? The percolating tension poses a serious test for Roberts’s leadership and the Supreme Court’s legitimacy at a time when the court and the country are ideologically divided, and Americans’ trust in the court is rapidly evaporating.
Roberts appears to have been in the majority in all but one of the approximately 10 substantive actions the court has taken so far. There are parallels between Roberts’s approach and the legacy of John Marshall, who was also careful not to engage in unwinnable battles. “I am not fond of butting against a wall in sport,” Marshall wrote to his colleague Justice Joseph Story in 1823.
Roberts recently invoked Marshall’s pivotal legacy. “He is … the most important figure in American political history” who was not a president, Roberts said.“ A lot more important than about half the presidents,” he added.
What flows from a constitutional crisis? Surely, the end of American government as we have known it.
If Trump defies a Supreme Court order, the only remedy would appear to be impeachment, an unlikely prospect given the political composition of Congress. Face it, a constitutional crisis could sink the ship of state.
As for the delicate balance, FDR could not have put it better. “The American form of Government,” he said in his 1937 fireside chat, is “a three horse team provided by the Constitution to the American people so that their field might be plowed. Two of the horses are pulling in unison today; the third is not ... It is the American people themselves who are in the driver’s seat. It is the American people themselves who want the furrow plowed.”
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
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