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 press to decide how to cover elections." It is hard to imagine that the U.S. Court of Appeals for the 5th Circuit (a frequent target of progressive ire) would approve this transparent assault on freedom of the press.

Trump, who will get a chance to appoint a new chair of the Federal Communications Commission (FCC) next year, has repeatedly threatened to yank the broadcast licenses of news outlets he views as biased against him. Suppose that Trump tries to follow through on those threats with the help of an FCC controlled by a sympathetic Republican majority.

Given the lengthy administrative process it would entail, any such effort probably would not be resolved before the end of Trump's term. But if it got as far as an FCC decision to revoke or deny renewal of a broadcast license, the federal courts would have the final say. Again, federal judges, regardless of who appointed them, are unlikely to conclude that the First Amendment allows Trump to punish broadcasters with a regulatory death sentence simply because he views their news coverage as unfair.

Trump has repeatedly complained that it is too hard for him to successfully sue news organizations for making him look bad. He pines for looser defamation rules that would allow him to recover damages for negative press coverage. But that would require the Supreme Court to revisit the defamation requirements it has said the First Amendment requires—in particular, the "actual malice" standard for suits by public officials (later extended to "public figures" generally) that the Court established in the 1964 case New York Times v. Sullivan.

Under that standard, Justice Clarence Thomas noted in a 2021 dissent, "public figures cannot establish libel without proving by clear and convincing evidence that the defendant acted…with knowledge that the published material 'was false or with reckless disregard of whether it was false.'" Thomas is not a fan of that rule, which he said "bears 'no relation to the text, history, or structure of the Constitution.'" In the same case, Gorsuch expressed doubt about Sullivan's reasoning, especially given the dramatic changes in the media environment since 1964, including the rise of the internet.

Notably, however, Thomas and Gorsuch were dissenting from a decision not to consider an appeal asking the Supreme Court to overturn the "actual malice" standard. Two years later, while agreeing that another defamation case was not a good vehicle for revisiting Sullivan, Thomas renewed his argument against the "actual malice" rule. But it seems clear that most of the justices are not keen to consider the issue, let alone issue the sort of ruling that Trump would welcome. In any event, much of the press coverage that bothers Trump, such as CNN's description of his stolen-election fantasy as "the Big Lie," is not demonstrably false, so he would have trouble winning these cases even without Sullivan.

People who worry that we cannot rely on a conservative Supreme Court to defy Trump's will can cite cases that went his way. Last March, for example, the Court unanimously rejected attempts to bar him from the presidential ballot as an insurrectionist. In June, the justices dealt a blow to the federal election interference case against Trump by ruling (in a different case) that the charge of obstructing an official proceeding is limited to interference with evidence. (Notably, the majority included Justice Ketanji Brown Jackson, a Biden appointee.) The ruling on presidential immunity, which directly involved the election interference case against Trump, certainly helped him, and it might embolden him to flout the law in other ways.

Trump also scored judicial victories during his first term. In 2018, for example, the Supreme Court narrowly upheld his ban on travel to the United States by people from North Korea, Venezuela, and five predominantly Muslim countries, citing the president's "broad [statutory] discretion to suspend the entry of aliens into the United States."

The president's broad powers under immigration law do not bode well for what might happen if Trump goes through with his plan for mass deportation of unauthorized U.S. residents. The president has similarly broad authority to impose tariffs, which Trump exercised, to the detriment of U.S. manufacturers and consumers, during his first term and promises to use on a more alarming scale during his second term.

Beyond those areas, however, past experience suggests that the courts will be a meaningful check on Trump. As I already noted, the Supreme Court provoked Trump's wrath by ruling against him in the 2019 subpoena case, Trump v. Mazars, and by declining to consider his dubious claims of election fraud. Trump's first-term policies also encountered a lot of judicial pushback. When it analyzed the outcomes of federal cases involving Trump agency actions from 2017 through the end of his administration, the New York University School of Law's Institute for Policy Integrity found that the government was unsuccessful 78 percent of the time.

The hits kept coming. Last June, the Supreme Court rejected Trump's unilateral ban on bump stocks, ruling that it exceeded the statutory authority of federal gun regulators. While Trump's left-leaning opponents might have been displeased by the outcome, the ruling vindicated the separation of powers and the rule of law—principles that progressive critics of the bump stock decision will be keen to uphold during the next four years.

Similarly, the Supreme Court's June 2024 repudiation of the Chevron doctrine provoked much consternation on the left but is apt to facilitate challenges to Trump's second-term policies. Under that doctrine, which the Court disavowed in Loper Bright Enterprises v. Raimondo, judges deferred to agency interpretations of "ambiguous" statutes as long as the interpretations were "permissible" or "reasonable."

As critics of Loper Bright saw it, the decision was bound to benefit the wealthy and powerful by blocking regulations aimed at protecting the public. But as Gorsuch noted in that case, the Chevron doctrine imposed a bigger burden on ordinary people confronted by bureaucrats who were empowered to invent their own authority. Anyone who is worried about what Trump might do during his second term should be glad that his agencies will no longer have that license.

Thanks to Loper Bright, New York Times columnist David French notes, "federal courts are required to give less deference to Trump's executive actions. Many liberals were angry at the decision, believing that it needlessly hamstrings executive agencies. But now that same decision will help keep Trump in check. He actually has less legal discretion to put his policies in place through the regulatory state than he did during his first term."

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