The Promising Paradox of a Trump Supreme Court
Self-interest explains why Trump is unlikely to defy federal court orders
American Commonwealth is a reader-supported publication. If you are not already a paid subscriber, please lend your support:
For nearly ten years, it’s been looming. Now it’s squarely upon us. The Trump administration is actively transforming the executive branch into an instrument of authoritarian rule.
If you doubt this conclusion, or its gravity, respectfully, it may be the product of unconscious defense mechanisms like repression, denial, bargaining, or rationalization.
What's happening in the executive branch is of historic catastrophic proportions, but let me share with you why I feel confident Trump will not ultimately defy federal court orders.
If I am right, "O, wonder!" to quote Shakespeare’s The Tempest, it’s a beacon of good news in a sea of troubles because defiance of the Supreme Court by Trump would amount to a breach of the final constitutional firewall between democracy and tyranny.
The Supreme Court is the medical intensive care unit that is going to keep our democracy alive over the next four years
The Paradox of a Friendly Supreme Court
One reason Trump will ultimately follow the dictates of court orders is that his advisers will inform him that to flout them would throw the nation into unprecedented constitutional crisis that will sabotage his nationalist programs and the economy.
Moreover, they will argue, the Supreme Court is a friend to the administration. Therefore, let's not make the justices our enemies by flagrant noncompliance.
Think of it as “The Paradox of a Trump Supreme Court.”
With the fury of an outraged emperor, Trump would probably defy a heavily left-leaning Supreme Court. But this is Trump's Supreme Court. It's his baby—or at least that's how he thinks of it.
He will menace and bluster. He will drag his feet on court orders, and he and his partisans will bully lower court judges.
But, because he expects the Supreme Court to deliver on at least some of the rulings he desires—and because he wants to keep the justices in his good graces for future favors—he is not going to openly defy them.
Should Trump ignore a court order, or partially ignore one, it will likely be a lower court order. Nevertheless, for the reasons given, Trump will abide the Supreme Court on appeal, a prediction affirmed by Harvard Law School Professor Noah Feldman, among others (see “Sources” below).
This is reassuring news, of course, because defiance of the Supreme Court by the executive branch represents the end of constitutional law. In a worst-case scenario, such a stand-off could trigger the mobilization of state militias to enforce the ruling—or the Armed Forces to back the president.
That’s why I’m grateful for the paradox of a Trump Supreme Court.
The conservative Supreme Court justices neither want to overturn the Constitution nor surrender the power it grants them to Trump
But Isn't the Supreme Court Corrupt?
Unlike many critics of the Supreme Court, I do not believe that the six conservative justices who form its majority are corrupt lackeys of Trump. Consciously and unconsciously, they do pursue a conservative religious agenda. That much is clear.
It’s also undeniable that some members are guilty of financial wrongdoing and other violations of judicial ethics. And, of course, the court has issued numerous deplorable rulings, starting with Citizens United, that compete for the worst in American history with Dred Scott and Plessy v. Ferguson.
But the nine justices are also fierce defenders of the Constitution. And, crucially, the six in question (Thomas, Alito, Gorsuch, Kavanaugh, Barrett, and Roberts), neither want to overturn the Constitution nor surrender their judicial power to Trump.
With the fury of an outraged emperor, Trump would likely defy a heavily left-leaning Supreme Court. But this is Trump's Supreme Court. It's his baby—or at least that's how he thinks of it.
Trump Will Obey
So, as bad as you think the Supreme Court is, I encourage you to recognize that the same courtroom that gave us Citizens United, Dobbs v. Jackson, and Trump v. United States is now going to serve as the medical intensive care unit that will sustain our democracy over the next four years.
Trump unquestionably longs to be an unlimited monarch. But, to our good fortune, when it comes to defending the Constitution—and, notably, preserving the legitimacy and authority of the judicial branch—the Supreme Court is going to stand tall.
And, in doubly good news, Trump will obey.
Click below to support—or learn more:
Eli Merritt is a psychiatrist and historian who writes about the origins of our present political discontents and solutions to them. He has written for the New York Times, Washington Post, Los Angeles Times, and Chicago Tribune, among other publications.
He is the author or editor of the books “Disunion Among Ourselves: The Perilous Politics of the American Revolution,” “Demagogue in the White House: Lessons Learned from the Presidency of Donald J. Trump,” and “How to Save Democracy: Advice and Inspiration from 95 World Leaders”
More articles by Eli Merritt
Books
The Curse of Demagogues: Lessons Learned from the Presidency of Donald J. Trump
Disunion Among Ourselves: The Perilous Politics of the American Revolution
To aid the educational efforts of American Commonwealth, take the next step
AC is a reader-supported publication. Lend your support by becoming a paid subscriber:
Gift a subscription to a friend or family member
Share, Like, Comment, or Restack below:
Sources
Trump Dares the Courts to Stop Him, NYT, Editorial Board
Trump Is Testing Our Constitutional System. It’s Doing Fine, Bloomberg, by Noah Feldman.
This Is What the Courts Can Do if Trump Defies Them, NYT, by Trevor W. Morrison and Richard H. Pildes.
What Happens if Trump Doesn’t Listen to the Courts? WashPo, by Amber Phillips.
Trump v. the Courts: Is America Headed Toward a Constitutional Crisis? Amanpour and Company.
I wish I could agree with this logic, Eli, but not much of anything Trump has done is logical. And, if decides to go ultimate defiant, he will break other laws and just throw out who he doesn’t like and re-stack the deck. Nothing is outside his sinister and corrupt imagination.
Easy to write all doom or all good. Personally, a fan of thoughtful optimism in the face of doom. My concern is that trump’s modus operandi is never changing. He is a one man show with blind loyalty. Group think follows, which typically fails, still retains pathological vanity These dynamics has me in the all doom camp. But, Eli does give me hope. I will take solace in the prospect of a supreme court majority decision written with eloquent decisiveness.