The Supreme Court and the Second Trump Administration
Here are some models you might have had for how the Supreme Court would or should react to the Second Trump Administration:
The Court recognizes that the administration is doing tons of illegal things, indeed it seems like the administration is not even trying to do them in technically legal ways most of the time. The Court recognizes this, calls B.S. and puts a stop to all of it.
The Court likes everything the administration is doing, after all six of them are Republicans, and so they let the administration do it all.
The Court maybe does not like everything the administration is doing and recognizes that some of it is illegal, but they are scared the administration would ignore or destroy the Court and so they let the administration do it all.
The Court just wants to keep its head down and/or recognizes that the emergency docket is not well-suited to these kinds of hot-button public law disputes, so they let the lower courts handle the litigation until the issues reach final judgment in the court of appeals and eventually the government files normal cert petitions.
Obviously, none of these things are happening. The Court’s rulings so far in emergency applications by the Second Trump Administration have been a mixed bag (here’s a nice accounting by Jack Goldsmith, and of course Dan and I discuss these cases in detail in the latest episode of the podcast: “In Whack ASAP”). This includes the notable rulings in both Trump v. J.G.G. and Noem v. Abrego Garcia, both of which had a certain Solomonic quality.
Models 1-4 are false. But here are several more models that might be consistent with what we know so far:
The Supreme Court is just calling balls and strikes. The government has won some cases because lower courts were a little overexuberant about allowing APA suits, and it has lost some cases because the government is not always following the law. The Court is not going to overenforce the law against the Trump Administration, or underenforce the law against the Trump Administration.
The Supreme Court in fact knows that the administration is doing tons of illegal things and not even trying that hard to follow the law (see model 1), but they are afraid to say that so bluntly because they are afraid the administration would destroy or ignore the Court (see model 3), so they are choosing their battles, preserving their institutional capital, and giving the administration some wins and half-wins it doesn’t deserve.
The Supreme Court is not really going to confront most of the illegality of the Second Trump Administration, but it would be embarrassing for them to admit that, so they are kind of dragging their feet and creating some friction so when they eventually roll over it won’t look like they rolled over too easily.
The problem is that we just do not know yet which of the models 5-7 (or some other) is going on. As I encounter divergent views about the Court’s rulings so far, they often seem to proceed from a divergence in these models. And we can be relieved and/or disappointed about the rejection of models 1-4 without that telling us where we are in 5-7.
Obviously I am rooting for #5, but I just don’t think we know yet.
It seems to me that a useful model is something to the effect of: federal judges contain a latent mix of capacity for calling balls and strikes, ideological commitments, and policy preferences. And we'd like them to use them in that order :-)
In any given matter, you're going to get some balancing act of those. The slides will effectively never go to 100%, or to 0%. The more something is impossible to justify as balls and strikes, the less relevance their policy preferences will have. The stronger their ideological commitments are on some question, the more they'll give one part the benefit of the doubt if the "balls and strikes" are coherently contested.
This model is profoundly unsatisfying, and of only limited predictive value.
I think the biggest pieces of evidence we have so far are not necessarily the rulings we have gotten, but the way in which we are getting rulings. Lots of activity on the shadow/emergency docket, lots of decisions without reasoning or eliding most of the issues, stays and lifting of stays when they haven't done so in the past, not letting things play out or even letting factual records be developed in the lower courts.
Whatever model (even if none of the above) is correct I think this evidence is hardest to reconcile with #5 unless the definitions of "balls and strikes" are also changing. (To be honest this is my biggest gripe about the "balls and strikes" analogy.)