During Trump’s Second Term, the Supreme Court’s Critics Will Be Grateful for Its Restraining Influence
At a rally in Pennsylvania last September, Donald Trump warned that Kamala Harris, his Democratic opponent in the presidential election, “wants to pack the Supreme Court…so she can rig the system.” Alluding to the June 2022 decision in which the Court overturned Roe v. Wade, Trump said the justices “were very brave” and “take a lot of hits because of it,” which he said “should be illegal.” He complained that the Court’s critics “are playing the ref” and said they “should be put in jail” because of “the way they talk about our judges and our justices, trying to…sway their decision.”
This was not the first time Trump had defended the Supreme Court against its Democratic critics. “The Radical Left Democrats are desperately trying to ‘Play the Ref’ by calling for an illegal and unConstitutional attack on our SACRED United States Supreme Court,” he wrote on Truth Social in July, emphasizing the importance of “Fair and Independent Courts.”
Trump has not always been so keen to defend the Supreme Court, and his ambivalent attitude toward it shows that he values “Fair and Independent Courts” only when he likes their rulings. But it also suggests that judicial review will be a vital check on Trump’s authoritarian impulses during his second term. Notwithstanding the Supreme Court’s decisions in Trump’s favor, such as its July 2024 endorsement of broad presidential immunity from criminal liability for “official acts,” the justices—including the ones he appointed—have shown they are willing to rule against him when they think that is what the law requires.
Trump reportedly was furious at the “betrayal” of two justices he had nominated, Neil Gorsuch and Brett Kavanaugh, who in July 2020 joined the majority in rejecting his challenge to a subpoena for his tax returns. “In our system of government, as this Court has often stated, no one is above the law,” Kavanaugh wrote in a concurring opinion joined by Gorsuch. “That principle applies, of course, to a President.”
Later that year, Trump took his anger at the Supreme Court public after it declined to hear two cases challenging the outcome of the 2020 presidential election. He complained that the justices—including Gorsuch, Kavanaugh, and his third Supreme Court nominee, Amy Coney Barrett—had “just ‘chickened out’ and didn’t want to rule on the merits.”
Two weeks later, Trump called the justices “totally incompetent and weak” as well as cowardly. By refusing to consider his “absolute PROOF” of “massive Election Fraud,” he said, they effectively endorsed “corrupt elections,” meaning “we have no country!”
Trump’s respect for the “SACRED United States Supreme Court” is clearly contingent on whether it helps or hurts him. Trump’s opponents likewise often cite decisions that don’t go their way, such as the reversal of Roe, as evidence that the institution is fundamentally corrupt and politically motivated, enacting policy under the guise of interpreting and applying the law. But during Trump’s second term, they will have reason to be grateful for the judicial branch’s role in upholding constitutional principles.
Let’s start with an easy example: Trump’s desire to incarcerate people because of “the way they talk about our judges and our justices.” Any attempt to do that, whether through new legislation or a creative interpretation of existing law, would be obviously unconstitutional. Likewise with Trump’s various other suggestions that people should be punished for speech that offends him.
Trump may think flag burners “should get a one-year jail sentence,” for example, but the Supreme Court has made it clear (twice!) that such a policy would violate the First Amendment. The late Antonin Scalia, whom Trump has described as a “great judge” who was the model for his Supreme Court picks, joined both of those decisions, even though Trump avers that only “stupid people” think “it’s unconstitutional” to jail people for flag desecration.
In a lawsuit he filed on October 31, Trump is seeking $10 billion in damages from CBS because he did not like the way 60 Minutes edited an interview with Harris. By making her seem smarter than she really is, the lawsuit implausibly claims, CBS violated the Texas Deceptive Trade Practices Act. Trump’s lawyers filed that case in the Amarillo Division of the U.S. District Court for the Northern District of Texas, apparently because they knew it would be assigned to Judge Matthew Kacsmaryk, a Trump appointee who has been receptive to the arguments of conservatives challenging Biden administration policies.
I have no idea what Kacsmaryk will make of this risible lawsuit. But even if he allows the case to proceed, I think we can be confident that it won’t get far. “The First Amendment was drafted to protect the press from just such litigation,” the legendary free speech litigator Floyd Abrams noted. “Mr. Trump may disagree with this or that coverage of him, but the First Amendment permits the p
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