Will the US Supreme Court stand up to Trump? | BBC Americast

Key Concepts

• Executive Power Expansion: The central theme revolves around the potential for Donald Trump to significantly expand presidential power and the Supreme Court’s role in either enabling or curtailing this expansion.
• Supreme Court Composition: The 6-3 conservative majority on the Supreme Court, with three justices appointed by Trump, is a critical factor influencing decisions.
• Shadow Docket: Refers to the Supreme Court’s handling of cases without full briefing or oral arguments, often used for emergency requests, and frequently favoring the Trump administration.
• Constitutional Checks and Balances: The discussion highlights the importance of the Supreme Court as a check on executive power, a principle seemingly under strain.
• Precedent: The significance of established legal precedents (e.g., Brown v. Board of Education, Roe v. Wade, Miranda v. Arizona) and the Court’s recent overturning of long-standing rulings.
• Statutory Authority vs. Presidential Authority: The debate over whether Trump is acting within the bounds of laws passed by Congress, particularly regarding tariffs and executive appointments.
• “Subject to the Jurisdiction Thereof”: A key phrase in the 14th Amendment regarding birthright citizenship, subject to differing interpretations.
• Court Packing: The controversial proposal to increase the number of justices on the Supreme Court, potentially to alter its ideological balance.

The Supreme Court and the Expansion of Presidential Power Under Trump

This discussion centers on the increasingly significant role of the Supreme Court in American politics, particularly in relation to Donald Trump’s presidency and his attempts to expand executive power. The core question posed is whether the Court will act as a check on Trump’s actions or become an instrument for furthering his agenda. The analysis highlights a trend of the Court, while occasionally offering minor resistance, generally allowing Trump’s policies to proceed, often without definitively ruling on their legality.

Recent Supreme Court Decisions & Pending Cases

The conversation begins by outlining several recent Supreme Court decisions favorable to the Trump administration, including:

• Access to Social Security Data: The Court granted the administration access to social security systems containing personal data on millions of Americans.
• Diversity, Equity, and Inclusion Funding Cuts: The Court allowed the administration to slash hundreds of millions of dollars in research funding aimed at reducing federal diversity, equity, and inclusion efforts.
• Termination of Biden Appointees: The Court upheld President Trump’s authority to terminate appointees made by President Biden, a decision that surprised many observers.

Several crucial cases remain pending, with the potential to significantly define the scope of presidential power:

• Immigration: The extent of Trump’s authority over immigration policy.
• Presidential Appointments: The limits of presidential power regarding appointments and removals of officials.
• Trade and Tariffs: This is presented as the most important pending case, concerning Trump’s imposition of tariffs on foreign nations under the International Emergency Economic Powers Act (IEEPA) of 1970. The Court expedited the case due to pressure from businesses impacted by the tariffs, but has yet to issue a ruling. The central legal question is whether the IEEPA, which doesn’t explicitly mention tariffs, grants the president the power to impose them unilaterally. Justices reportedly expressed skepticism during oral arguments about the breadth of this authority, questioning whether Congress had adequately delegated its constitutional power to levy tariffs.

The Conservative Majority and its Impact

The current 6-3 conservative majority on the Supreme Court, including three justices appointed by Trump (Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh), is a central factor in the discussion. This majority has dramatically reshaped the legal landscape in recent years by:

• Overturning Precedents: The Court has overturned precedents established over decades in areas such as abortion (Roe v. Wade), racial preferences in higher education, federal agency regulations, environmental regulations, and gun control.
• Most Conservative Court in 75 Years: The Court is described as the most conservative in at least 75 years, actively “flexing its muscle” and significantly altering established legal norms.
• Legitimacy Concerns: The Court’s conservative lean and perceived alignment with Trump’s agenda raise concerns about its fairness and legitimacy, particularly among Democrats.

Historical Context: The Supreme Court as a Catalyst for Change

The discussion places the current situation within a broader historical context, noting that the Supreme Court has historically been a catalyst for significant social and legal change. Examples cited include:

• Brown v. Board of Education (1954): A landmark decision that ended racial segregation in schools and spurred the Civil Rights Movement.
• Plessy v. Ferguson (1896): A decision upholding racial segregation, demonstrating the Court’s capacity to reinforce existing inequalities.
• New York Times v. Sullivan (1964): Protecting freedom of the press.
• Miranda v. Arizona (1966): Establishing the requirement to inform suspects of their rights upon arrest.

These examples illustrate the Court’s power to profoundly impact American life, both positively and negatively.

Specific Pending Cases & Potential Outcomes

• Tariffs Case: The delay in issuing a decision on the tariffs case is noted as potentially indicative of the Court’s internal deliberations. Trump himself has publicly expressed the importance of winning this case.
• Firing of Lisa Cook (Federal Reserve Governor): The Court is considering the legality of Trump’s attempts to fire Lisa Cook, a Federal Reserve governor, based on alleged financial malfeasance. This case raises questions about presidential control over independent agencies.
• Birthright Citizenship: Trump’s attempt to end birthright citizenship through executive order is being challenged. While the consensus is that the Court will likely rule against Trump, due to the clear language of the 14th Amendment and existing statutes, the discussion acknowledges that the current Court is unpredictable. The debate centers on the interpretation of the phrase “subject to the jurisdiction thereof” in the 14th Amendment.
• Potential for “Court Packing”: The possibility of a future Democratic president and Congress expanding the size of the Supreme Court is raised as a potential response to the Court’s conservative trajectory.

Concluding Thoughts & Concerns

Professor Kate Shaw, a former Supreme Court clerk, emphasizes that the current Court is more reliably conservative than in the past, with less willingness to deviate from ideological lines. She notes that while the Court has occasionally ruled against Trump, its overall track record suggests a willingness to defer to executive power. The discussion concludes with a pessimistic outlook regarding the Court’s willingness to act as a meaningful check on Trump’s power, suggesting that the trend of expanding presidential authority is likely to continue. The conversation highlights a growing concern that the Supreme Court, rather than safeguarding constitutional principles, is becoming an instrument for advancing a particular political agenda.

Notable Quotes

• “Is the Supreme Court at any stage going to stand up to Donald Trump or is it simply in the business of expanding his power?” – Framing question of the discussion.
• “This is a court that has been very hostile in lots of ways to things Democratic presidents have tried to do and very protective of the prerogatives Republican presidents and Donald Trump in particular.” – Kate Shaw, highlighting the Court’s perceived bias.
• “This case is perhaps the most important legal case in the Fed's 113 year history.” – Jerome Powell, Chairman of the Federal Reserve, on the case regarding the firing of Lisa Cook.
• “I think that for a long time there was Democrats who I think are many of them dispositionally sort of institutionalists were nervous about the notion of trying to change the size of the Supreme Court.” – Kate Shaw, on the potential for court packing.