Fidelity to the judicial role constrains them from insinuating that the president will abuse his power — but if he does, they will respond decisively.
Fidelity to the judicial role constrains them from insinuating that the president will abuse his power — but if he does, they will respond decisively.
O n the nuts and bolts of the controversy at the heart of this week’s Supreme Court election-law ruling — non-ruling might be the better way to look at it — I can’t improve on Dan McLaughlin’s customarily stellar analysis (here and here). Instead, I want to draw attention to the tension dividing the justices and spurring the part of the press coverage that is good-faith but rash — as opposed to intentionally misleading.
It’s about this: applying the presumption of regularity — a bedrock principle concerning the deference courts owe to the political branches in a constitutional system based on separation of powers — in an era of eroding trust due to governmental lawlessness.
The justices who speak publicly about their work stress their collegiality. They are a real Court, a tribunal in which nine of the country’s best lawyers try to get to correct results by grappling with legal principles, not to arrive at expedient political results based on partisan motivations.
By and large, this is true: Notwithstanding the caricature of the Court — especially the one served up by the progressive press at a time when a conservative, originalist majority is predominant — it is relatively rare that decisions come out 6–3, with the six conservatives and three progressives voting as partisan blocs. “Rare,” of course, factors in the whole of the Court’s annual body of work: scores of merits rulings, dozens of orders on the so-called “emergency” or “shadow” docket each year, and nearly 4,000 petitions for review that are summarily denied.
Nevertheless, there are certain categories of cases infused by politics. Some of that is unavoidable. Much of it, though, is because the Article I branch has been dormant and delegative during our last two decades of autocratic presidencies. In our system, stable law simply cannot be built by executive orders. That doesn’t make our challenges disappear; rather, the justices are too often asked to do Congress’s heavy lifting. If the justices must, by necessity of the duty to decide disputes, wade into policy terrain made even more contentious when presidents usurp Congress’s lawmaking function, then they are sure to be accused of grinding political axes, fairly or not. (And the charge cannot be completely unfair if a justice, such as Biden appointee Ketanji Brown Jackson, habitually leans into that role at the expense of settled precedent.)
Over the last decade, what I’ll call Trump cases have featured prominently on the politicized docket. Some of these are about things the president has done — e.g., decreeing arbitrary taxes on imports, ordering deportations that run roughshod over federal law, and unilaterally demolishing or altering government property.
Other cases, though, are about what it is anticipated — or feared — that he will do. Anticipation necessarily involves speculation and supposition. That’s the stuff of policy, Congress’s bailiwick. The judiciary, the non-political branch, is not there to make policy; rather, courts give effect to existing law and address concrete injuries. However well-founded judgments about Donald Trump’s character, motivations, and intentions may be after a decade of experience, courts are not at liberty to act on suspicion — or to gussy up a judge’s suspicion into some vague “harm” as a pretext for issuing an injunction.
Still, this gap between well-founded suspicion and illegal action explains why Trump cases get decided 6–3, split between Republican and Democratic appointees. If a case is about a president’s allegedly malevolent intentions, it shouldn’t be a case at all. Yet, reading the writing on the executive wall and knowing Congress is dysfunctional, state attorneys general, advocacy groups, and plaintiffs’ lawyers attached to the opposition party turn to the courts, pleading: “You can’t let him get away with this!”
That’s what Monday’s case, Trump v. California, is about. The president hasn’t done anything actionable . . . yet. He’s instead done what the Constitution undeniably authorizes him to do: run the executive branch. He issued an executive order (a) directing the Department of Homeland Security to compile lists of citizens eligible to vote, for eventual distribution to the states, although they will not be required to use the lists; (b) directing the Justice Department to prioritize enforcement of laws against voting by ineligible persons (mainly aliens); and, most provocatively, (c) directing the Postal Service to “initiate a proposed rulemaking” with an eye toward fashioning a standard, coded ballot envelope — to be sent out by states to people who want to cast absentee ballots — that will facilitate tracking, including by federal investigators tasked to investigate election fraud.
In administrative law, many steps are required before a presidential directive becomes, first, a proposed rule and, ultimately, a final rule that can be enforced. Theoretically, after being noodled over by the government’s lawyers, subjected to public comment, and tweaked by agency experts, a proposed rule may never become a final rule; or if issued at all, a final rule may bear no resemblance to the presidential directive that triggered the rule-making process.
That said, the ne plus ultra of the Trump administration — it’s even the guiding mission of the White House political shop formerly known as the United States Department of Justice — is to promote the fiction that the 2020 election was stolen from Trump by various never-proven fraud schemes. It is such a priority that nominees for executive office — even for DOJ posts, in which the capacity to assess and accurately relate fact was once understood to be the essence of the job — are required by their master to resist acknowledging that Joe Biden won in 2020. The rote response, cravenly abided by Senate Republicans at confirmation hearings, is that Congress “certified” Biden as president (with the hovering wink-wink that we all know who really won).
It has never made sense for Trump supporters to be shocked, to the point of implacable denial, that in November 2020, with the nation reeling from a pandemic and the afterclap of a violent summer, an unpopular incumbent president, who never tried to build out beyond his MAGA base and whose approval rating was about ten points underwater on Election Day, could lose an election as to which major polls had predicted he would lose the popular vote by more than 7 percent (he lost by about 5 percent).
Still, that’s the president’s story, and he’s sticking to it. It remains an obsession, one that has poisoned Trump’s nonconsecutive second term — and pointlessly so since he won in 2024 fair and square, so 2020 should be water under the bridge (unless you think the system is so rigged that the 2024 outcome should also be doubted, unless you believe Democrats manage to steal elections when Trump is in power but not when they themselves are in power).
This explains the president’s quixotic pursuit of election integrity legislation — the direly denominated “Save America Act” — that lacks sufficient congressional support to become law. (Posturing for the base aside, many Republicans resist because they’ve opposed Democratic attempts to federalize elections, and they fear what progressives will do if Republicans set this wayward precedent.) And just like Obama and Biden before him, with Congress unwilling to give him what he wants, Trump seeks to impose his preferences by executive order.
For Democrats, this is simple: The law forbids it. In this instance, they contend (like good originalists!) that the Constitution endows Congress and the states with the power to prescribe election practices; the president is given no such authority for the very good reason that a president could use it corruptly in his own behalf.
I’m sympathetic, but it’s not quite as cut and dried as all that. Congress has given the executive statutory authority to prosecute voter fraud — Democrats, you’ll recall, celebrated when Biden DOJ special counsel Jack Smith indicted Trump on the strained theory that his 2020 soft coup attempt amounted to election fraud under the civil rights laws. Even so, the president’s electoral role is limited to prosecuting transgressions against Congress’s laws, not proclaiming his own laws under the guise of superintending the Postal Service.
Ergo, Democrats want the judiciary, particularly the Supreme Court, to stop the president now. They stress Trump’s 2020 track record and the patent impropriety of presidentially dictated balloting procedures. They are cognizant, and are pleading with the judiciary to take notice, that (a) the midterms are imminent, (b) the states have to print ballot envelopes that the Postal Service will process, and (c) if the courts sit on their hands until Trump finally acts — as Trump opponents are dead certain he will act — it will be too late to prevent chaos.
It’s all so logical . . . except, again, Trump hasn’t acted. At least not yet.
Interbranch comity — the presumption courts indulge that presidents will act lawfully, the refusal of courts to interfere with executive deliberations that have not materialized into lawbreaking — is based on two things: a norm and doctrine.
The norm is that the president and, by extension, the Justice Department in litigating before the courts, can be trusted to execute the laws faithfully. The Constitution requires this commitment of the president by oath of office. The DOJ, fortifying a reputation built over a century and a half (although the record is hardly spotless), has traditionally enjoyed the confidence of the judiciary that its prosecutors will present facts and law accurately, even if doing so cuts against the government’s position in a given case.
That norm can be eroded. Trump’s detractors argue, with persuasive force, that the erosion is real and perhaps irreparable. Trump supporters counter, also with persuasive force, that politicization of the DOJ did not start with Trump (which is not exactly a defense) and that progressive, Democratic-appointed judges often try to thwart the administration on ideological grounds, the law be damned.
Let’s put that debate to the side. Even if we were to agree for argument’s sake that the norm has disintegrated, there is still the doctrine: the constitutional principle that courts have no authority to act unless and until, as relevant here, the president does something illegal that causes actual harm. No matter how well educated the hypothesis may be that a president is on the cusp of abusing power, a hypothesis doesn’t establish jurisdiction. Only actual wrongdoing does.
I’ll close with an observation I’ve made a number of times. Critics contend that conservative and progressive judges adopt the same means while working toward conflicting ends. That’s not true. Progressive jurists tend to figure out what the progressive policy preference is and then reason backward to get to it (that’s why in this election law dispute, as noted above, Democrats insist on fealty to the Constitution as understood when ratified — try not to be stunned if that’s not their rationale in the next dispute). Originalist judges, by contrast, are less interested in outcomes than process: Is the decision to be made being made by the right branch or agency of government, and does the federal judiciary have legitimate power to act at all?
Contrary to much of the press coverage, the Supreme Court did not greenlight President Trump’s plan to control voting in the midterms, and thereby to continue stoking his election-theft narrative. The conservative majority rightly reasoned that, even if the progressive justices’ worst fears about his intentions are well-founded, the president hasn’t acted on them. Not yet, anyway. As the majority put it: “The Court’s disposition of this application does not mean that any measure taken by the Government to implement the [Executive] Order will necessarily be lawful. On that score, time will tell.”
Translation: Fidelity to the judicial role constrains the Court from insinuating that the president will abuse his power, but if he does, the Court will respond decisively. Let’s hope that’s not necessary. But if it becomes necessary, bear in mind that just six months ago, despite unseemly executive pressure, the Court voided the Trump tariffs. It’s been just a few weeks since the justices ruled against Trump on birthright citizenship, blocked his attempt to fire a Federal Reserve Board member, and declined to hear his appeal of a jury’s verdict that he sexually abused and defamed the journalist E. Jean Carroll. Sure, Trump has a track record, but so does the Court. If anticipated push comes to illegal shove, the justices will shove back.