Balance of power

Each year, on the first Monday in October at 10 a.m. sharp, a hush settles over the audience at the Supreme Court.

Everyone rises as the nine justices in their black robes file in and take their seats. The marshal strikes a gavel and announces their entrance with the traditional cry: “The honorable, the chief justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!”

All this stateliness and ceremony belies the bare-knuckled political brawl going on behind the scenes. The start of each new term signals a renewal of the long-standing tug-of-war between the judicial and executive branches of government. Since President Donald Trump took office in January, the battle has intensified to the point that some have declared a “constitutional crisis.”

Depending on who’s offering the analysis, the president currently has the upper hand. On June 27, the very last day of its previous term, the court handed Trump what he called a “giant win.” Many court watchers viewed the case, Trump v. CASA, as significant. The ruling put an end to national injunctions, a tactic liberal judges have used to block many Trump administration policies.

The president celebrated his victory on social media. It was a rare note of harmony between the White House and the Supreme Court. In the weeks and months prior to the ruling, Trump and his supporters frequently vented anger at the justices for ruling against him. As recently as May, Trump blasted the justices for “not allowing me to do what I was elected to do.”

Trump has directed even more fire at lower court judges who get in his way. In March, he and his supporters called for the impeachment of James Boasberg, the chief U.S. district judge in Washington, D.C., who ordered the Trump administration to turn around flights deporting alleged Venezuelan gang members. In response, Senate Minority Leader Chuck Schumer branded Trump a “lawless, angry man.” Even Chief Justice John Roberts issued a rare public statement. “Impeachment is not an appropriate response to disagreement concerning a judicial decision,” he wrote. In April, a national poll found that 67 percent of Americans were concerned about a potential constitutional crisis arising from conflicts between the executive and judicial branches.

As the Supreme Court’s new term gets underway, the president will likely continue to veer between jubilation and outrage in response to rulings. Those angry broadsides at judges who get in his way are unsettling to many Americans, acknowledged Lael Weinberger, an assistant professor of law at George Mason University Antonin Scalia Law School and former law clerk to Justice Neil Gorsuch. “This is always dangerous territory,” he said.

But it’s hardly new. Or, as Weinberger puts it, “the Constitution was designed to have a certain amount of conflict.”

American history is rife with examples of presidents who clashed with the courts—sometimes vehemently. While those battles may have stretched our system of government, our constitutional order never broke.

Supreme Court justices sit for a group photo in 2022. Bottom row (from left): Sonia Sotomayor, Clarence Thomas, John Roberts, Samuel Alito, and Elena Kagan. Top row (from left): Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Jabin Botsford / The Washington Post via Getty Images

AS SOON AS HE TOOK OFFICE for his second term, Trump began unleashing a flurry of executive orders. “Trump loves the shock and awe approach,” Weinberger noted. For their part, Trump’s opponents soon realized that Congress was “not a productive place to engage in resistance.” Instead, they turned to the courts—both the Supreme Court and various lower courts—to try to block Trump policies, mobilizing “hundreds of lawyers, hundreds of firms, bringing hundreds of cases.” The sheer scale of the litigation means the Department of Justice is “going to get a bit bogged down,” Weinberger said.

When those efforts succeed, Trump lashes out. On April 21, he complained on social media that he was doing what voters elected him to do: “remove criminals from our country.” But Trump said he was “being stymied at every turn by even the U.S. Supreme Court, which I have such great respect for, but which seemingly doesn’t want me to send violent criminals and terrorists back to Venezuela, or any other country, for that matter.”

Whether he realizes it or not, Trump is following a template set by many other presidents who have clashed with the courts. His complaint that unelected judges should not block an elected president from fulfilling his mandate has a long history.

The tug-of-war between the executive and judicial branches dates back to the earliest days of American history. Thomas Jefferson, America’s third president and the primary author of the Declaration of Independence, clashed with the Supreme Court in the landmark case Marbury v. Madison. Just before leaving office, President John Adams, a member of the Federalist Party, and his allies in Congress created new judgeships and quickly filled them with Federalists. They hoped the judiciary would counter Jefferson’s incoming Republican Party administration. One appointee, William Marbury, did not receive his commission before Jefferson took office. Jefferson’s secretary of state, James Madison, then refused to deliver it. Marbury sued, asking the Supreme Court to compel delivery. Chief Justice John Marshall, a staunch Federalist who had a bad relationship with Jefferson even though they were related, faced a delicate situation. A direct challenge to Jefferson risked a constitutional crisis. Instead, Marshall crafted a decision that carefully avoided a head-on confrontation with the president, defusing the tension.

More than a decade after he left office, Jefferson expressed his concerns about judicial power: “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

“The Supreme Court Under Pressure”: a 1937 cartoon showing FDR exerting pressure on “the old men of the Supreme Court” to get in step and support his New Deal legislative agenda. World History Archive / Alamy

IN 1861, ABRAHAM LINCOLN was sworn into office outside an unfinished Capitol, with a large crane looming overhead. Tensions were running high because several states had seceded a few weeks prior. Lincoln rode by carriage down Pennsylvania Avenue. But due to fears of an assassination attempt, the soldiers guarding him were so thick it was hard for spectators to see the president-elect. In his inaugural address, Lincoln called for unity and famously appealed to “the better angels of our nature.” But he directed some strong words at the Supreme Court: “If the policy of the government upon vital questions … is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers.” Lincoln was deeply offended by the Supreme Court’s infamous Dred Scott decision in 1857, which said people of African descent were not American citizens.

Soon after the inauguration, as the Civil War got underway, Lincoln suspended the writ of habeas corpus. That allowed him to throw potential secessionists in jail. Supreme Court Chief Justice Roger B. Taney issued a ruling that only Congress could suspend habeas corpus. But Taney was writing in his capacity as a circuit judge, a dual role high court justices once held but no longer do. Lincoln ignored Taney and continued suspending habeas corpus. Congress formally authorized the move in 1863, but some historians point to this as an example of a president outright defying a court.

Paul Moreno, a professor of history and the dean of social sciences at Hillsdale College, doesn’t believe Lincoln’s actions reached that level. He believes the ruling was merely “Taney’s view about who had the power to suspend the writ of habeas corpus, and Lincoln disagreed with him about that.”

PERHAPS THE BEST-KNOWN presidential-court clash came in the 20th century, during the Franklin Delano Roosevelt administration. After he was elected in 1932, President Roosevelt forged ahead with his New Deal policies. Since he also had majority support in Congress, the Supreme Court was the only obstacle in his way.

Four Supreme Court justices in particular were very conservative and regularly struck down New Deal legislation. The media nicknamed them “the Four Horsemen,” a reference to the Four Horseman of the Apocalypse from the Book of Revelation.

In 1935, Roosevelt was so worried the justices would rule against him in a series of cases known as the Gold Clause Cases that he prepared to defy them. The cases centered on his administration’s devaluation of the dollar relative to gold. Roosevelt drafted a speech—a copy of which is preserved in his presidential library—announcing that he would disregard the ruling. He planned to invoke Lincoln’s first inaugural address as justification. In the end, the justices upheld the government’s position, so Roosevelt didn’t need his speech.

But after winning reelection by a landslide in 1936, Roosevelt decided he had a popular mandate to remake the Supreme Court to ensure the New Deal was never under threat. He announced court-packing legislation that would let him appoint a new justice for each one over the age of 70 who didn’t retire. That meant he could appoint six new justices immediately.

During a “fireside chat,” one of his famous radio addresses to the American people, he described the three branches of government as “a three-horse team.”

“Two of the horses are pulling in unison today; the third is not,” he said, in reference to the Supreme Court. He argued for the necessity of court-packing to fulfill the people’s will. “It is the American people themselves who expect the third horse to pull in unison with the other two.”

Public discourse in FDR’s era was more polite and formal than today. But Weinberger speculates, “If Franklin D. Roosevelt had a Twitter account that he used regularly and was comparably unfiltered and just giving his personal views,” his tone could have been similar to Trump’s.

THE CONSTITUTION DOES NOT FIX the number of justices, and Congress is allowed to change it. The first Supreme Court in 1789 had six justices, and the number has been at seven and 10 at different times. But the American public balked at FDR’s plan, and his proposed legislation landed with a thud in Congress. “Even his own party turned against him on it, and he had to withdraw the plan. It was perceived as a blatant attack on judicial independence,” said Thomas Berg, the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law.

The issue soon became moot. The justices began voting to uphold New Deal legislation, though historians disagree as to whether fear of court-packing motivated the switch. Also, older justices soon began retiring. Roosevelt ultimately appointed eight associate justices and elevated one to chief justice.

The court-packing scheme is generally regarded as a stain on FDR’s legacy. Weinberger thinks its spectacular failure “inoculated” the court against serious restructuring by future presidents. But that hasn’t stopped them from trying.

A few decades after FDR, President Richard Nixon used an indirect approach to court-packing by forcing a justice to resign. Back then, crime was a major concern with voters. Nixon accused the Supreme Court of giving a “green light” to criminals, with rulings like Miranda v. Arizona in 1966. It gave us the Miranda rights.

The Nixon administration investigated Justice Abe Fortas over questionable financial arrangements, and Fortas resigned. He is the only Supreme Court justice ever to resign under an ethical cloud. Nixon next tried to force the resignation of Justice William O. Douglas for similar allegations, but Douglas managed to hold on to his seat.

President Joe Biden, near the end of his term, also made a half-hearted attempt at court-packing by proposing legislation that would do away with lifetime appointments. Presidents would appoint a new justice every two years, who would then serve for 18 years. Hillsdale’s Moreno said some progressive members of the Democratic Party pushed for the changes out of anger at the Supreme Court’s overturning of Roe v. Wade. “But nothing came of it,” Moreno said.

WHILE TRUMP IS CONTINUING the tradition of clashing with the courts, tensions are higher now due to congressional gridlock. The Founders anticipated a delicate balance of power between three branches of government, with two pushing back if one became too powerful. Today, Congress has largely abdicated this role. Political scientists offer differing explanations for this state of affairs, including increasing polarization and the fact that two-thirds of the federal budget is now nondiscretionary. But the end result is a harder clash between the executive and judicial branches.

Trump’s situation is also unusual because he sometimes criticizes judges or justices he appointed himself in his first term. Presidents typically criticize others’ appointees. In May, a three-judge panel of the U.S. Court of International Trade—including one Trump appointee—struck down tariffs Trump wanted to impose on dozens of countries. The panel’s ruling was quickly overturned. But Trump used social media to blame the Federalist Society for giving him bad recommendations for appointees: “I am very proud of many of our picks, but very disappointed in others.” Founded in 1982, the Federalist Society is a legal organization that played a crucial role in moving the national judiciary in a more conservative direction. In frustration, Trump called the society’s former leader, Leonard Leo, a “sleazebag” who “probably hates America.”

Berg finds these types of posts deeply troubling. “He says stuff on social media that is divorced from reality, and his followers go along with it,” Berg said. Some Trump supporters recently zeroed in on Justice Amy Coney Barrett, a Trump appointee, even calling her “Amy Commie Barrett.” But when asked about this, Trump distanced himself from such comments. “She’s a very good woman. She’s very smart, and I don’t know about people attacking her,” he told reporters.

TRUMP’S CLASH WITH THE COURTS stems partly from new tactics employed by judges who rule against the president’s politics. Since taking office, the Trump administration has often been stymied by nationwide injunctions, also called universal injunctions. Federal district judges use these not only to give relief to people who are parties to a case but to block a policy from being enforced across the entire country. Federal district judges have issued dozens of nationwide injunctions since Trump took office, compared with 14 in Biden’s entire term. The Supreme Court’s ruling in Trump v. CASA almost totally bans them. However, within days of the ruling, judges were finding workarounds to continue blocking policies on a national level.

And the larger issue raised by the case remains unaddressed: Does the president have the right to end birthright citizenship? It may take a year or longer before that question reaches the Supreme Court via the normal path, called a writ of certiorari.

While Trump v. CASA means Trump’s executive order can go into effect, that is no guarantee the Supreme Court will ultimately let it stand or more broadly that the justices are favorably disposed toward Trump administration policies. “I don’t think this necessarily means that the executive branch is getting deference,” Weinberger said.

On those occasions when the Supreme Court rules against Trump, Berg expects the justices will proceed with caution: “They’re going to be attuned to making those judgments enforceable and nuanced in a way that doesn’t aggressively restrict the president too much.” Whether Trump will appreciate their nuance remains to be seen.

Berg thinks Trump would do well to heed the lessons of FDR’s failed assault on the court. Apart from being wrong, attacking the Supreme Court is bad politics, Berg argues. “When presidents defy the court directly or attack the court aggressively, they often get in trouble for it.”