Trump “packed” Supreme Court
Its gains new executive power
Gordon L. Weil
The Democrats might gain majority control of the U.S. Senate
in January 2027. They could then block
President Trump’s judicial appointments.
To avoid their filling vacancies in the Court’s conservative majority,
some right-wingers have suggested that the two oldest justices – Clarence Thomas
and Samuel Alito – should quickly retire, opening the way for younger
replacements.
These resignations would follow a pattern of questionable Republican
election-year moves to ensure a conservative majority. The GOP-controlled Senate refused to consider
an Obama nominee more than a year before the 2016 presidential election, later
approving a Trump nominee. It also
rushed through a Trump nominee only a month before the 2020 election.
Presidents usually appoint Supreme Court justices holding views
consistent with their political philosophy.
Trump has increasingly sought justices who not only align with his usually
conservative views, but who will loyally back his policies.
He gives greater weight to loyalty than to competence. He has turned against the Federalist Society,
a major source of conservative and competent lawyers named as his judicial appointees. Because some had ruled against his policies,
he now favors potential judges who are more closely aligned with MAGA.
The U.S. Supreme Court has taken over the legislative
responsibilities of Congress, whose members would cling to their seats rather than
taking on the risks of lawmaking. A Trump Court, dominated by his faithful, is
adding executive style functions.
The New York Times has recently revealed that the Court is taking
over executive authority without the usual judicial trappings. It has uncovered the story of the Court’s “phantom
docket,” which allows for rapid decisions with little or no thoughtful testimony
or discussion. Phantom docket decisions
are often made before any lower court has ruled.
With this shortcut, the Supreme Court becomes the only
federal court making decisions on many major cases. Only when it plans to confirm the decision of
a lower court or simply wants to delay publishing its own conclusion, it may
allow a case to progress normally or even to drag on for months.
The shadow docket began in 2016, even before Trump’s first
presidential victory. A year earlier,
the Court had ruled against an Obama EPA decision, only to be told that it had
already been implemented. Obama then
ordered the Clean Power Plan. When a court did not suspend it until the case
concluded, the Supreme Court backed an unusual appeal for delay.
Memos among the justices show that Chief Justice Roberts,
peeved by the earlier case, asserted that the Court would eventually decide
against Obama and opposed delay. He
accepted claims that the Plan would cost hundreds of millions of dollars. In fact, much of it was implemented
voluntarily at no additional cost, but the Court had boldly asserted a new kind
of authority.
Having done it once, it was easy for the jurists to keep
using the procedural tool of refusing to suspend a Trump move, which has made
it a part of the executive process. In practice that meant the policy could be
pursued until much later, making the final reasoned decision almost pointless. The procedural order functioned with the same
effect as a later decision might.
It was somewhat like the saying, “Don’t confuse me with
facts; my mind’s made up.”
The shadow docket has expanded. The Court may refuse to suspend presidential
executive orders, giving them a stamp of approval when there has been no
legislative action. In all such cases,
the Court process, which traditionally has allowed for all sides the argue
their case and present evidence, now yields terse orders, without explaining judicial
reasoning.
The result is that the Court has become a key part of the executive
lawmaking process. It has been suggested
that it has used the docket to block Obama and Biden and to aid Trump. While the jury is out on that, the Court has
undergone a major change and won’t readily abandon it. Under a Trump Court, the phantom docket could
continue to flourish, even after he leaves office.
The political power of the Court through its phantom docket
and Trump’s appointments, provide for a Court sympathetic to Trump actions that
would exist long after he is president.
A Democratic president, and Congress could face long-term opposition from
Trump’s “packed” Court.
President Franklin D. Roosevelt faced a similar situation
after the 1932 elections. When Court conservatives,
appointed by Republican presidents, blocked his policies, he sought to enlarge
the Court membership and faced charges of “packing” it. The conservative Court
relented, recognizing that Roosevelt had been overwhelmingly backed by the voters
in the 1936 elections.
The Democrats should now contemplate enlargement of the Supreme
Court. They can show it’s already
packed, so they can offer to “unpack” it and restore the Court as the judicial
branch.
