Because of all that has happened since President-elect Trump’s first term in office, it is easy to forget that the Supreme Court repeatedly stood up to him during those chaotic four years.
The court impeded Mr. Trump’s initial efforts to ban people from six Muslim-majority countries from entering the United States. It blocked Mr. Trump’s attempt to put a question on the 2020 census asking whether the respondent was a U.S. citizen. It rejected his effort to rescind the program that shields people brought to the United States as children from deportation and allows them to work. It ruled against him in a high-profile subpoena dispute. And it sat on its hands as Mr. Trump and his supporters tried to use the legal process to challenge the results of the 2020 election.
Mr. Trump won some big cases, too, but his track record was surprisingly poor for a Republican president before a Supreme Court with a majority of Republican-appointed justices.
Now, with Republicans looking likely to control both chambers of Congress by the time Mr. Trump is inaugurated for his second term on Jan. 20, and with fewer moderating influences within Mr. Trump’s own party to restrain him, it seems inevitable that the court will once again be the last institution standing between Mr. Trump and whatever he wants to do.
The problem for the court — and for the Republic — is that it’s going to be much harder for the justices to push back this time around, even if they want to. That is because of the sharp decline in public support for the court, which has plummeted, no doubt in response not just to the justices’ controversial rulings, but also to the ethically questionable behavior of some of them. Without that public support, what would happen if Mr. Trump simply ignored a decision by the nation’s highest court that he doesn’t like? It is a question that until now seemed largely unthinkable.
Yet the vice president-elect, JD Vance, suggested such a scenario in a 2021 interview in which he first said Mr. Trump should fire “every civil servant in the administrative state” and “replace them with our people.” And then he added: “When the courts stop you, stand before the country like Andrew Jackson did and say the chief justice has made his ruling, now let him enforce it.”
Although the Supreme Court’s formal power comes from Article III of the U.S. Constitution, its real power comes from public support for the court as an institution. The court depends upon the elected branches for everything from its budget to its building to its calendar and its statutory authority to hear almost all of the cases that it decides.
And as much as the court could not hear and decide cases without that support, what’s even more important is public support for its judgments — not necessarily because the public agrees with them, but because it agrees that, in our constitutional system, those judgments should be enforceable.
Regardless of whether, as Mr. Vance suggested, President Andrew Jackson actually said “John Marshall has made his decision; now let him enforce it,” it was President Dwight Eisenhower’s deployment of troops into Little Rock, Ark., that desegregated Central High School — not the court’s judgment in Brown v. Board of Education. Eisenhower chose to make sure the court’s mandate was honored.
Presidents unhappy with Supreme Court rulings have nevertheless complied with them historically because of the political consequences of not doing so (like President Richard Nixon after the Watergate tapes case or President George W. Bush after the Guantánamo habeas case held that the detainees there have a constitutional right to go to federal court to challenge their detention), and not because of anything that the court itself could do beyond issuing a paper judgment.
But the Supreme Court at the beginning of Mr. Trump’s second term looks very different from the Supreme Court at the end of his first term. This is the court that, in ideologically divided rulings, overruled Roe v. Wade, slammed the door on racial preferences in college admissions, greatly expanded the Second Amendment, kneecapped the administrative state and, perhaps most significantly, blessed stunningly broad presidential immunity from criminal prosecution in the specific case of Mr. Trump himself.
Whatever the merits of each or all of those rulings, what can’t be denied is that they have had a damaging effect on the court’s popularity — and, consequently, on the court’s ability to defy the wishes of the elected branches. Indeed, some surveys show public support for the court nearing a historic low. Data aside, there’s no question that the court has less credibility among large swaths of the population today than it did as recently as a decade ago.
And yet it’s easy to imagine circumstances in which defying the wishes of the elected branches will be more important in 2025 or 2026 than it was in 2017 or 2018. After all, the other political checks Mr. Trump faced during his first term — moderate Republican senators with decisive votes, like John McCain, or a Democratic-controlled House from 2019 through 2021 — are likely to be absent. Nor, assuming he abides by the 22nd Amendment limiting a president to two terms, does Mr. Trump have to worry about running for re-election.
Based on Mr. Trump’s first four years in the White House, it stands to reason that there will be at least some cases in which his behavior goes too far for a majority of the current court — just as there have been cases in which even this court has pushed back against the excesses of Republican governors or conservative lower courts. If the court rules against Mr. Trump and he tells the justices to pound sand, what will happen then?
Writing in 1952, in an opinion rejecting President Harry Truman’s unilateral seizure of steel mills during the Korean War, Justice Robert Jackson reflected on precisely this problem. Justice Jackson knew of what he spoke: After serving as both solicitor general and attorney general to President Franklin Roosevelt, Justice Jackson had also served as the lead U.S. prosecutor at the Nuremberg war crimes tribunal — where, among other things, he saw what had happened in Germany when legal institutions in a constitutional democracy did not sufficiently push back as popular political leaders claimed ever more power.
“With all its defects, delays and inconveniences,” Justice Jackson wrote, “men have discovered no technique for long preserving free government except that the executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the court to be last, not first, to give them up.”
Justice Jackson’s experience had taught him that judicial power is fragile, that it depends upon public support, and that the entire system is jeopardized when the courts lose their ability to stand up to the other institutions of government.
That is why it is so essential for the justices to worry about the court’s public support even in calm times, for it’s when the rule of law is directly threatened that the court’s credibility and legitimacy becomes imperative.
Stephen I. Vladeck, a professor of law at Georgetown, writes the One First weekly Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” This article originally appeared in The New York Times.
