This is an excerpt from our post-election symposium, “On the Return of Trump.”
Donald Trump’s election places a new burden on a Supreme Court already operating under a harsh public spotlight. This is a Court, after all, that in recent months has rejected a constitutional challenge to Trump’s ballot eligibility and granted him a stunning measure of immunity from criminal prosecution. Going forward, the justices—including but not limited to Trump’s three appointees—will have to assure the country that to them he is just another president, entitled no more deference than President Biden, whose student loan forgiveness program and some of whose environmental initiatives the conservative majority invalidated.
True, the Court also met Trump with some skepticism during his first term, blocking his effort to end the DACA program’s shield for young undocumented immigrants and stopping his commerce secretary from adding a citizenship question to the 2020 Census. But these rulings, however important, were essentially procedural, driven by the administration’s failure to follow the ordinary rules of agency practice. The shenanigans inside the Commerce Department that came to light in the census case, for example, would have been laughable had the administration’s vote-suppressing goal not been so alarming.
The amateurish nature of many of the first Trump administration’s encounters with the Supreme Court is highly likely to be replaced by a more disciplined and strategic approach. And it’s worth remembering that, even the last time around, Trump emerged triumphant on the questions that mattered most to him—the Muslim travel ban and the extension of the Mexican border wall into an area that Congress had explicitly disallowed.
Given Trump’s promise to deport millions of people, rid the civil service of “enemies,” and eviscerate entire federal departments, the range of cases likely to reach the Supreme Court in short order is head-spinning. While his ever-changing rhetoric on reproductive issues has left his specific plans obscure, these will undoubtedly include limits on access to medication abortion, including in states where abortion is legal. Given Republican control of both the House and the Senate, it will be futile to look to Congress for relief. Guardrails, if any, will have to come from the Court. The need will be acute.
