Presidential and Judicial Political Capital: An Inverse Relationship
Why delaying Supreme Court review of Trump's major policies might be desirable.
In this recent piece in The Atlantic, David Frum argues that President Trump is racing to “carry[] out his project to consolidate authoritarian power against the trend of declining public support for his administration and himself.” It’s worth reading the whole thing, but the basic idea is that many of Trump’s policies are deeply unpopular and his stranglehold on other Republican politicians may diminish as that becomes increasingly clear. If so, Trump “must sense that if he does not act now to prevent free and fair elections in 2026, he will lose much of his power—and all of his impunity.“ This, Frum argues, explains why he’s pushing so aggressively for AG Bondi and others to prosecute his political opponents quickly.
I found the argument compelling (and frightening); some readers may find it overly alarmist. Putting any such potential disagreement to the side, I do wonder whether a similar dynamic might be at play as to the Trump Administration’s ongoing efforts to reshape American constitutional law.
One does not need to fully endorse the notion that “the Supreme Court follows th’ iliction returns” to recognize that political dynamics have influenced the Court over its history. One lesson from that history, I think, is that the Justices are often wary of getting into head-on showdowns with the political branches. The Court has spent centuries building up its prestige and political capital, and one way it has done so is by avoiding conflicts the Justices think they can’t win. And so generally we tend to see the Court being willing to overturn Presidential actions late in a President’s tenure (for example, Boumediene v. Bush was a major rebuke to President Bush’s war-on-terror policies, but it only came in June 2008, months before Bush left office).
If that’s right, it suggests that Trump’s influence at the Court has nowhere to go but down. As he and his policies become more unpopular, and as he gets closer to lame-duck status, Trump poses a diminishing threat to the Court.
For this reason, I wonder whether there’s a silver lining to Trump v. CASA. Precluding universal injunctions could have the benefit of delaying Supreme Court review of major Trump policies. The decision could slow down the need for the Court to weigh in at the margins on some issues. If a couple circuits disagree about the constitutionality of an executive action, but those decisions affect only the named plaintiff in each case, the Court could let the issue percolate.
It’s not obvious this is happening, as the Court is going to weigh in on a number of important Trump policies this Term already, and it’s hard to imagine that the Court won’t resolve challenges against more of them before the Term is over (it’s only the first week in October!). But CASA did arguably delay the need for the Court to review the underlying merits of the birthright citizenship issue until this Term rather than last, and all things equal that might be better for the ultimate fate of the case.
Of course, delay can be deeply unfortunate for those harmed by Trump’s policies in the meantime—such as immigrants facing deportation or children being denied citizenship. And so I certainly don’t want to say that these potential benefits of CASA outweigh the costs in the bigger picture. But there may be reasons that, in the bigger picture, it will be better for the Court to weigh in later rather than sooner.
(This analysis glosses over the possibility that Trump can increase his influence over the Court by appointing more Justices. That’s possible, but I don’t think that’s likely to change these dynamics, because the Justices seen as most likely to retire—Thomas and Alito—are the two who already are most inclined to support Trump’s policies).
