How the Supreme Court could shape Trump’s powers - The President’s Path podcast, BBC World Service

Key Concepts

• Supreme Court Term: The period during which the U.S. Supreme Court hears cases and issues rulings.
• Conservative Majority: The current composition of the Supreme Court with a 6-3 majority of justices appointed by Republican presidents, particularly President Trump's three appointments.
• Shadow Docket / Emergency Docket: A mechanism for the Supreme Court to make quick decisions on important cases without full oral arguments or written briefs, often used for emergency appeals from lower courts.
• Tariffs: Taxes imposed on imported goods, a central component of President Trump's economic and foreign policy agenda.
• Executive Power: The authority vested in the President of the United States.
• Congressional Power: The authority vested in the U.S. Congress, including the power to regulate commerce and approve trade deals.
• Independent Agencies: Federal agencies designed to operate with a degree of independence from the executive branch, such as the Federal Trade Commission (FTC) and the Federal Reserve.
• FDR-era Precedent: Legal principles established during the presidency of Franklin D. Roosevelt, particularly concerning the protection of independent agencies from presidential interference.
• Conversion Therapy: A discredited and controversial practice attempting to change an individual's sexual orientation or gender identity.
• Constitutionality: The quality of being in accordance with a country's constitution.
• Chilling Effect: The inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction.
• Neutral Institution: The perception of an organization, like the Supreme Court, as impartial and unbiased in its decisions.

The Supreme Court's Pivotal Role in the Trump Administration's Agenda

The current Supreme Court term is highlighted as a period of significant political confrontation, with the Court poised to determine the extent and scope of presidential power and address cultural issues with lasting implications. A key legacy of President Trump's first term was the appointment of three conservative justices, shifting the Court's balance to a resolute 6-3 conservative majority. This strategic advantage has instilled confidence within the administration, which anticipates legal challenges to its policies, particularly around immigration, and expects favorable rulings from the conservative-leaning bench.

Extensive Use of the Shadow Docket

The Trump administration has made unprecedented use of the shadow docket (or emergency docket), a process allowing the Supreme Court to decide important cases quickly without full oral arguments or written briefs. By the end of the previous week, the Court had granted 20 of President Trump's requests to block lower court orders, ruling against the administration in emergency cases only three times. This contrasts sharply with the Bush and Obama administrations, which collectively made only eight such requests over 16 years. This frequent use of the shadow docket provides an indication of the justices' leanings but also creates tension with lower federal courts, which have expressed frustration over some Supreme Court emergency rulings issued without detailed reasoning. The lack of full hearings and written opinions from the shadow docket leaves many to speculate on the Court's rationale and future decisions.

High-Stakes Cases: Tariffs and Executive Power

Tariffs Case: A Core Economic and Foreign Policy Battle

One of the most critical cases for the administration involves the president's power to impose sweeping global tariffs. This issue is central to President Trump's economic agenda, which aims to boost American manufacturing by placing tariffs on imported products. The Court will decide whether this power rests with the president or Congress. If the tariffs are overturned, the administration would face the "bureaucratic nightmare" of returning an estimated $165 billion in customs duties already collected. This case has broader implications for the balance of power between the executive and legislative branches, particularly regarding trade policy and budgetary matters, and is being closely watched globally by countries like Brazil, India, and China, which have faced penalizing tariffs.

Firing of Independent Agency Commissioners: Testing Presidential Authority

Another significant area of contention involves the president's authority to fire commissioners or board members of independent agencies. This is exemplified by a case concerning the firing of a Democratic member of the Federal Trade Commission (FTC), Rebecca Slaughter. The Justice Department argues that the president can fire board members for any reason that obstructs the president's agenda, stating that "the president and the government suffer irreparable harm when courts transfer even some of that executive power to officers beyond the president's control." This case could potentially overturn an FDR-era precedent that protected independent agencies from the "whims of the White House." The Court's handling of such cases also creates a "chilling effect" on civil servants, who face uncertainty regarding their employment if removed from their roles pending legal outcomes. A related case involves Federal Reserve Governor Lisa Cook, which specifically questions the independence of the Federal Reserve (the U.S. central bank) and the potential for political interference in monetary policy.

Social Issues Before the Court

The Supreme Court is also hearing cases on significant social issues:

• Conversion Therapy: Oral arguments have been heard on the constitutionality of bans on conversion therapy, a "discredited and highly controversial practice" aimed at changing sexual orientation or gender identity. Over 20 states ban this practice. A Christian therapist in Colorado is challenging her state's ban, claiming it violates her free speech rights.
• Transgender Athletes in Sports: The Court is expected to hear cases challenging the constitutionality of laws that bar transgender women and girls from participating in female sports teams. These cases, originating from Idaho and West Virginia, represent a more "traditional" type of Supreme Court case, testing existing laws that affect large segments of the American public.

Perception of the Court and Future Outlook

There is growing concern about the Supreme Court's perceived neutrality. Polls indicate a loss of credibility among voters, with many Democrats believing the Court is not acting as a "neutral institution" but rather as an extension of the president's agenda, largely due to its conservative majority. The ongoing political polarization in the U.S. further exacerbates this perception. The speakers anticipate "interesting times ahead" and a "tense and lucrative time to be a lawyer in America" given the volume and complexity of these cases. The discussion also briefly notes the ongoing government shutdown as another significant political development.