Keith Whittington, David Boies Professor of Law at Yale Law School and author of The Political Foundations of Judicial Supremacy, joins Jack Goldsmith for a conversation about reconstructive presidents (Jefferson, Jackson, Lincoln, and FDR), and whether Donald Trump fits that mold. They discuss Trump’s constitutional ambitions, judicial supremacy versus departmentalism, and whether Trump will defy the Court.
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: So today I’m chatting with Keith Whittington, who’s the David Boies professor of law at Yale Law School. We’re talking about his book written in 2007 called Political Foundations of Judicial Supremacy.
Even though the book is (amazingly) 18 years old, I think it has enormous insight into our current moment—about how to understand and think about President Trump’s very ambitious and aggressive presidency, about how to think about the relationship between the presidency and the Supreme Court (and maybe the lower courts), and about an issue that is right on the surface these days, which is: Are the courts supreme? Do they have judicial supremacy? Or does the executive branch have an independent interpretive role in defining the Constitution?
So, Keith, I just want to emphasize that in studying the book this year, I’ve been amazed at how potentially relevant it is to our moment. I wanted to hear from you what you thought about it, since the book is 18 years old. Why don’t you just tell us about the book and give us an overview, and then we’ll jump in.
Keith Whittington: Yeah, time marches on. The book is old at this point. But as you say, I think it does feel fairly relevant to our moment right now.
And that is what I hoped for the book: to make sense of patterns in American history that aren’t merely confined to the past, but things that are persistent features of the American constitutional order that we should expect to continue to be persistent into the future. And as a consequence, some patterns we’ve seen in the past should recur.
And I think we’re encountering one of those now, or some things are recurring. The book is generally concerned with the relationship between presidents and the U.S. Supreme Court in particular across American history, and variations in how much presidents attempt to seize leadership away from the Supreme Court in understanding what the Constitution means and defining what our constitutional principles and values are.
And when presidents are instead much more deferential to the court and try to push constitutional questions into the system for their resolution inside the judiciary. And as part of that, I think presidents have often found themselves in situations where they want to build up judicial authority in order to help courts resolve those questions and emphasize: These are purely legal questions or technical questions. They’re not questions that politicians have to grapple with or presidents ought to be held responsible for.
But instead questions that courts can take off the plate of politicians. And most politicians prefer to be in that situation. As a consequence, the court has assumed a very large role in the American constitutional order precisely because politicians through most of American history prefer it that way.
But they don’t always. And one of the things you said, I think, will strike readers as strange. You said something like: Presidents try to wrench from courts control over constitutional meaning, something like that.
And the way lawyers think about this most of the time—and you’re a political scientist who teaches in a law school, and I think the political science perspective here is penetrating compared to the normal lawyer’s take—but I just want people to understand: How can that be possible?
We have this idea that the court determines the domain of constitutional meaning. So what do you mean by presidents—I’m paraphrasing what you said—wrenching away control or the agenda of constitutional meaning?
Yeah. And if I didn’t use “wrenching,” I probably should have. It’s a good term for that.
That was my word.
But so, yeah, part of the interest in the book in the first place comes from two different directions: empirical questions about how American constitutionalism works, some of which was a background interest of mine and some of which was captured in an earlier book. So in an earlier book, Constitution Construction, I argued that political actors play an important role in interpreting what the Constitution means and trying to develop a set of constitutional practices that supplement constitutional law in various ways. And all across American history, we can see examples of politicians—presidents, members of Congress, members of state governments—grappling with the meaning of the Constitution in various contexts and putting in place settlements that stick for some significant period of time.
So unpack for the more general listener what “a settlement that sticks” means.
So one way of thinking about this is we imagine in constitutional law context, usually, that there are right or wrong answers to what the Constitution means as a matter of interpretation. And once we identify what the right answer is, that’s the new rule. And it will stay with us for as long as that constitutional text is in place, unless we somehow decide later that we just got it wrong, in which case the court overturns its precedents.
Although we made a mistake here, we’re going to understand the rule to be different moving forward. Part of what I argued in this “Constitution Construction” framework is that there are parts of the Constitution that are fairly indeterminate, that they don’t have those kinds of clear right and wrong answers.
And moreover, some of those issues are specifically entrusted to political branches to resolve. Some of them are just indeterminate and various branches of government or actors might engage with them. And in some cases, we may find situations in which—from a British constitutional perspective, for example—we might think these are constitutional questions, but the Constitution actually doesn’t say much of anything about them.
And so they leave important issues about what rights people have, or how power should be exercised, or who makes decisions completely unresolved such that we have to figure it out for ourselves—OK, what do we do under those circumstances? So we have space of judgment and discretion within the constitutional order.
And one thing that politicians have frequently done is then work out—I characterize them as settlements or constructions—that this is a practical way in which we’re going to move forward with how we think the Constitution is going to operate. And part of what’s significant about those is that those are not just purely transitory, but instead they are taken as a kind of political precedent that sticks around for some extended period of time, and for various reasons.
So we might just think it’s purely functional: This works reasonably well, so we’re just going to keep doing it. It might be that people are persuaded this actually meets our highest values, and so they think it’s normatively important that we continue to do it. You can imagine sets of interests and policies that get organized around it, so it continues over time.
But those settlements may not be permanent. And precisely in part because they’re not about right and wrong answers about what the Constitution means, but instead they’re fairly durable. But nonetheless, they are somewhat contingent ways in which we’ve worked out these indeterminacies.
So I think, for example, take a relatively straightforward example: This is the way in which our Electoral College works in terms of the discretion exercised by presidential electors. We almost immediately moved to a system in which presidential electors pledge themselves to vote for particular candidates and understand themselves as not exercising discretion in the moment of casting ballots as to who they’re going to vote for.
They’ve already decided who they’re going to vote for, and we elect them on the assumption that we know who they’re going to vote for. So they become a mere mechanical feature of the process rather than a discretionary part of the process, as they were originally envisioned. This is consistent with the constitutional text, but it could have played out differently in terms of what our expectations are.
But there’s a strong set of norms and practices that have built up around the Electoral College that assumes electors should not be exercising independent judgment as they exercise that power. And that’s as deeply entrenched in our understanding of how the constitutional system works as practically anything else. But it is one of these kinds of political settlements. It’s not required by the constitutional text. It’s not right as a matter of constitutional law. But it is a practical political construction of how our constitutional system operates.
So I want to shift this to something closer to Trump. One of the striking themes of the Judicial Supremacy book is that the presidents who are most aggressive in challenging the court on what constitutional meaning should be, and bringing us to what I would call a new equilibrium in constitutional meaning—you didn’t use that phrase—these are our greatest presidents, or presidents who are widely viewed as our greatest presidents. People with names like Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin D. Roosevelt—whom I think is the most directly, closely related president to what Trump is doing.
And these were presidents who—I want to ask you to talk about the Roosevelt example—because these were presidents who had their own vision of the Constitution. They thought the court was—I’m paraphrasing, you can correct me—out of tune with the way the Constitution should be read at that time given the needs of the country.
And they basically made a play, sometimes through hardball tactics, to change constitutional meaning and persuade the courts to adopt a certain meaning of the Constitution, including various types of threats to the courts, trying to change the court. So can you just comment on this? These are our greatest presidents, and what is it about—maybe they don’t have to be seen as great. A couple of these are acting in times of dire emergency, so maybe that’s part of it. But what is it? Why were those extraordinary presidents engaged in this practice? Is there a relationship?
Yeah, I think so. I mean, we should probably characterize “great” in this context in descriptive terms rather than normative terms, right? And of course “great” is complicated because it implies a kind of normativity.
We can even strike “great” if you want. We’ll just say these are highly esteemed, by most people, presidents. Everybody agrees.
Yeah, no, I’m not disagreeing. I just want to clarify for our listeners that by great we just mean extremely accomplished presidents, presidents that we think did very consequential things within our political and constitutional order.
Successfully. And you can argue about Jackson, but I think even there that kind of brought the country to what most people think was a better place. I mean certainly Lincoln, Jefferson, I think FDR is a fair example of that. So anyway, keep going.
Yeah, so two things. With the Constitution Construction book, I was interested in how politicians settle constitutional meaning. But it raised questions about: If this is a feature of the constitutional order, why do we get so much short view in constitutional law? And why are courts so prominent in our constitutional system?
The Judicial Supremacy book in part was trying to explain why I think empirically that dynamic emerges. But the other background interest I had was in departmentalism as a theory of constitutional interpretation and practice.
In part because my first introduction to American constitutional thought was not reading Supreme Court opinions, but reading Jeffersonians and Jeffersonian politicians and how they thought about the Constitution.— and departmentalism was front and center in their thinking. So part of this book was concerned with trying to play out when departmentalism emerges and why it’s not more prominent than it is across America.
Can you explain just briefly what departmentalism is, and maybe this is the point to contrast it with judicial supremacy?
Yeah, exactly. The idea of departmentalism is one that the Jeffersonians first articulated fairly clearly, and it became an article of faith among Jeffersonian politicians. But then it has periods of resurgence where later presidents—and it’s all the great presidents you just cited—refer back to Jefferson and other examples as precedents for how they ought to think about their own powers and how they ought to exercise them.
The core feature of departmentalism is a claim that each branch of government—or in older language, “department” of government—when exercising its own responsibilities and duties, has an independent and equal authority to interpret the meaning of the Constitution as it’s relevant for performing its own duties.
So when the president is making decisions about how to exercise the pardon power or the veto power, when Congress is making decisions about what bills to pass into statutes, they may take what the Supreme Court says as persuasive or not. But they have an independent responsibility to make up their own minds about what they think the Constitution is, whether or not it’s consistent with what the Supreme Court has said, and act accordingly in performing those duties.
By contrast, the idea of judicial supremacy—which, unsurprisingly, judges most often express—is the view that judges have primacy in defining the meaning of the Constitution. Other branches of government should be deferential to that understanding. And when other branches are conducting their duties, they should do it in a way that is consistent and compatible with what the court has said.
And here it’s worth distinguishing a little, although it’s a murky distinction, between judicial supremacy and judicial review as such. Lincoln was probably most explicit about this. As a Senate candidate in the Lincoln-Douglas debates, he was extremely critical of Dred Scott.
He was accused then of being a kind of anarchist for criticizing the courts—like, “how dare you question whether or not the courts are authoritative in resolving these kinds of constitutional questions?” And Lincoln’s response was, basically: Look, we have a responsibility as government officials—for example, as president of the United States—to recognize the Supreme Court settles cases for parties in front of them.
So for Dred Scott, in that particular case about whether Dred Scott, who was enslaved, was free as a consequence of traveling through northern territory where slavery was not legal, the court said he was not, and so he remained a slave. And Lincoln says: Look, we’re all obliged to respect the court’s authority to resolve that particular case, and Dred Scott will remain a slave. There’s nothing we can do as government officials to alter that. But that doesn’t mean we should take the logic of what the court said and extend it to other circumstances.
As Lincoln characterized it, the political rule—that is, what the court said in its opinions to explain the logic of how they came to their conclusion about the parties in front of them—shouldn’t necessarily be adopted and carried forward by other government officials.
So a president could reasonably say: Well, I can’t do anything about Dred Scott, but when I encounter other contexts implicated by the logic of what the court said there, do I have to follow that or not? The departmentalist view is you don’t have to follow that. The judicial supremacist view is no, you do, because that’s the correct understanding of the Constitution, and you’re obliged to follow the court’s understanding even if you think the court got it wrong in those cases.
And as I said, frequently presidents like that view. It’s helpful politically to say: Sorry, my hands are tied. I’d really like to do something different, but the court has spoken. What can you do? And if you don’t like it, take it up with the unelected judges.
But on occasion, presidents have a lot of political incentives to push back. Lincoln was one of those who wanted to take control of how we think about the Constitution and insist that their own reading is the correct one. That they don’t just have to listen to judges and defer to them, but could aggressively advance their own understanding.
OK, before I move to Trump, I want to just ask you to briefly thumbnail, as best you can, FDR. Your name for these presidents who are aggressive—this is my paraphrase, you can correct me if I’m wrong—aggressive departmentalists who seek to change constitutional meaning, you call them “reconstructive presidents.” I see FDR as maybe the paradigmatic example. Could you briefly run through how he was reconstructive and how he was departmentalist, so we can get a concrete flavor and then see how Trump stacks up?
Yeah, so I borrow the concept of reconstructive presidents from Yale political scientist Stephen Skowronek. Skowronek argues that we can divide up American history into extended periods in which there are a set of fairly coherent and relatively stable combinations of interests, values, principles, parties, and public policies that he characterizes as a political regime. Those get fixed in place, often for a generation or two.
Then they seem less effective, people are less tied to them, people start questioning them, they don’t work as well in changing circumstances. Eventually, a political leader arises who says: OK, we have to throw off a lot of assumptions about how we’ve been running the government and society for the last 40 or 50 years and do something different moving forward. When they’re successful, he characterizes them as reconstructive presidents: They remake the political landscape. They restructure political coalitions. They articulate new visions about what ideals and aspirations should guide us moving forward. They offer new public policies that make dramatic breaks from how we’ve organized ourselves in the past.
I borrow that in part to say: There are constitutional implications of those kinds of political and policy changes. Arguments about redesigning policy frameworks to move forward around a new set of values are often accompanied by constitutional arguments about what kinds of powers we have, what kinds of rights people have, and what kinds of constitutional values we should aspire to. Those help sell the policy ideas and connect them to a larger constitutional framework.
That will sometimes, maybe frequently, lead those presidents into conflict with established constitutional law developed over the preceding decades. They wind up specifying constitutional rules that may not be compatible with these new ideas.
One way of thinking about this that may be more familiar is Thomas Kuhn’s idea of scientific revolutions. His notion is that there are paradigms that shape what he calls normal science. Most of the time, we don’t question the fundamentals of how the universe works; we’re just working out the details. Every once in a while, we radically transform how we’re thinking.
We worked for a long time with Newtonian physics. It gave us clear answers, and we could work out the details. Then Einstein came along, and everything got reshuffled. We started to think through the logic of what we learn from Einstein and people thinking about physics in a very different way. Politics works in similar ways.
FDR and the New Deal are a paradigmatic example of that. FDR came along, and the Democratic coalition was restructured. In the midst of the Depression, he said: Look, the way we’ve been doing things for the last 50 years or more isn’t going to work going forward. We need to rethink our policies in dramatic ways. We need to rethink the purpose and value of government in significant ways.
That came with constitutional implications as well. In FDR’s case, it led to some significant conflicts with the U.S. Supreme Court. The Court was trying to enforce inherited constitutional rules. They were doing “normal science” in the midst of a revolution. They applied traditional constitutional rules, I think, to a very different situation.
FDR pushed aggressively back, saying those rules shouldn’t apply anymore. We need to reconceptualize constitutional law to accommodate the New Deal regime he was constructing. That led Roosevelt to one, quote Jefferson, Lincoln, and Jackson in order to publicly claim the authority to push back on the Court and offer his own interpretations.
It led him ultimately to propose the court-packing plan to change the Court’s composition so it would be more accommodating to what he was trying to do. And it led him to threaten the Court in various ways during his first term in office, including preparing a speech he didn’t deliver in which he was going to announce he would defy the Court and refuse to comply with a judgment, because he thought it would sink the country into economic crisis and he had a higher obligation to prevent that.
So in FDR’s case, the conflict between the Court trying to do normal constitutional law and Roosevelt trying to construct his new vision of American government ought to work led to severe conflicts between the Court and the president—in ways that were relatively unusual. You didn’t see that level of conflict in earlier reconstructive phases.
Great, so let’s move to Trump. I think the way you just described Roosevelt’s first term as a reconstructive presidency—there are some obvious non-parallels, but there are also obvious parallels with Donald Trump.
So the question is: Is Trump a reconstructive president? Does he have ambitions to be a reconstructive president? In this term, should we see the first eight months of his second term as one with reconstructive ambitions?
I think it’s plausible. I think it’s not yet entirely clear. One of the things that makes Trump unusual from this historical perspective is that most examples of reconstructive presidents are making a partisan change from the past.
It’s sensible to say we’ve been living in a political era shaped by Ronald Reagan and the Republican Party. The vision about how government ought to work, what we ought to be doing, and the basic policies and approaches we should follow is one in which Reagan set the terms of debate in important ways.
You might think then if a reconstructive president is going to emerge to resist and topple that order, they ought to come out of the Democratic Party, not the Republican Party. One answer, of course, is that they did come out of the Democratic Party; they just wound up capturing the Republican Party in the process.
The Republican Party, exactly.
That’s also a feature of political regimes nearing the end: You get a lot of shifting around between the parties. It’s not entirely clear who’s who. Not only are coalitions reshaped, but as ideological commitments break down, there’s less clarity about who’s on what side of party lines, because all of that is being reconfigured in important ways.
So Trump is unusual in that regard. He’s also unusual because it’s not entirely clear what the substantive agenda is. One thing that presses against the court to some degree, and presses on constitutional issues associated with the Trump administration, is his willingness to aggressively use presidential power.
That bumps up against statutes and some constitutional law and the like. But it’s not as clear what the bigger substantive vision is about the nature of society moving forward. There are lots of competing factions inside and around the Trump administration sort of scrambling to identify what it might look like.
We saw that with FDR too, to a significant degree. FDR was all over the place, his administration was all over the place, and there were lots of factions fighting internally to capture the New Deal coalition and direct where it was going to go in the future.
I think the Trump administration is a lot like the New Deal moment in that sense, as well: It’s not yet clear. With FDR, if you looked only at his first term, you’d see a very different presidency compared to his second or third. Different policies, different ideas being advanced. And the coalition is kind of stable, electorally.
But what the New Deal meant at the end of the second term looked different than at the beginning. So likewise with Trump—we’re still in the midst of it. We’ll have a clearer view not only at the end of his presidency, but also in what happens after his presidency.
I think that’s a very important point. As discombobulating as things have seemed in the last eight months, it’s still very early. We haven’t had a single Supreme Court decision on the merits yet of an executive power question, for example.
We have a long way to go with the Trump administration.
Yeah, we have a long way to go. But in terms of the ambition of the executive power agenda—which might just be executive power for its own sake, or it might be some vision of vertical authority within the executive driving all of this—it seems like an ambition to change constitutional meaning. If you look at the executive orders and take them seriously as legal documents, and some of the arguments they’ve made, they are making a play to rethink some basic constitutional understandings. Is that fair, or is that too strong?
I think that’s right. Although what’s a little strange about it is that, for example, the strong vision of a unitary executive this administration has adopted and tried to advance was really invented under Jackson. And the Jackson administration was advancing it.
But Jackson was doing it in order to serve a larger substantive vision and fight other fights. So it’s an instrumental vision about: I need to grab hold of the executive power and the executive office, and I need to use it in particular ways in order to accomplish something in particular. And with the Trump administration, it’s often less clear what the point is, except just that I want to control this thing.
And so, you know, again, we would normally think about this as part of the instrumental moves that a reconstructive president makes in order to consolidate power in order to be able to do other substantive things. And it’s a little less clear what the other substantive things are. Although, you know, I think there are hints there.
Among them are on the immigration front, pulling back from globalization front… It may be when all is said and done, we’ll look back and see the Trump administration transformed America into a much less globalist country. Maybe that’s true on the foreign policy side as well, we will find ourselves to be less positioned as a kind of superpower the way we had been in the post-war era—and that’s the substantive vision that emerges.
We might look back and say a lot of these instrumental moves were in the service of that. But it’s not yet clear. We’re mostly seeing the instrumental part, and it’s less clear what the substantive part is.
So how about Trump’s relationship with the Court? The Supreme Court seems different than with the other reconstructive presidents. Certainly FDR. FDR faced a court that was basically against his agenda and early on was striking it down.
The Trump administration’s departmentalist energies have been focused on the lower federal courts, but toward the Supreme Court it’s been extremely accommodating, deferential, respectful. So just comment on that and what that means for these questions.
Yeah. I think the fact that the administration has not yet radically departed from constitutional rules the court thinks are correct and important has tamped down some of the departmentalist energy we might otherwise expect from a president like this.
Departmentalist arguments usually emerge instrumentally, to accomplish other things. If you don’t need them, why bother? You might see that with the Trump administration. If they get everything they want out of the U.S. Supreme Court, why develop an elaborate set of departmentalist arguments picking unnecessary fights?
This administration seems perfectly happy to pick unnecessary fights in other ways, but I’m not convinced we won’t get to that moment. I think there are substantive things the administration would like to do that the court would push back on.
Birthright citizenship, for example—if that executive order ever gets to the court squarely on the merits, the Trump administration is likely to lose. That would raise interesting questions about how the administration would respond.
A lot of these so-called shadow docket preliminary orders the court has adopted so far—when those cases eventually get to the court on the merits, it’s not obvious the court will rubber-stamp everything Trump has been doing. So there may be more tensions between the administration and the court.
On some unitary executive questions, it’s clear the majority of the court is basically on the same page with the administration. You’re not going to see much conflict there, maybe except with the Federal Reserve Board. But it remains to be seen.
We’re still very early in this presidency. It remains to be seen what kinds of conflicts emerge with the Supreme Court, as well, and how far Trump would go if he found himself really at odds with it.
Again, part of this is that we don’t really know what the substantive goals of this administration are. The substantive vision of the Constitution emerging here is not entirely clear. It’s also possible they may articulate a substantive vision the Court regards as a significant departure from what we had before, but not necessarily incompatible with the constitutional rules we had before.
So it may break norms, it may create a different set of ideals and aspirations and visions about the constitutional order. But they may be able to do it in ways that are still compatible.
Some of the post-liberal theories about how the economy ought to be ordered, for example—you could imagine developing that in ways that look nothing like Reagan’s America, but that don’t actually violate constitutional law as the court understands it.
On the other hand, if we go post-liberal directions and see a significant restructuring of free speech doctrine, that’s a different question about what conflicts we’ll get between the court and the administration.
So I expect, I predict—this is not a shocking prediction, and I think you basically said this—that the administration is not going to win all of these cases on the merits. The solicitor general has been very selective in the interim order cases he’s brought to the court so far.
And I agree they’re likely going to prevail in the unitary executive and related cases. Things like tariffs, things like the Alien Enemies Act, things like birthright citizenship—these are going to be harder.
One of the things I learned from your book, I guess I knew it but deepened my learning, was that whether Trump is going to be departmentalist vis-a-vis the Court depends on what the court does. Trump needs the Court. There’s a reason he’s paying fealty to the Court.
He wins and can solidify his gains when the Court blesses what he does. So I’m wondering if there’s anything we can say yet about how the court is thinking about this. What does history tell us about how the court thinks about this relationship?
I don’t know if you looked at the oral argument in CASA in one of the footnotes, but there was back-and-forth about these very issues: Would the Court, would the executive branch comply with judicial decisions? It’s clear the Court is thinking, at least to some degree, strategically about these things.
I don’t think Trump is going to defy the Court. I think Trump will lose before the Court, but I think he’ll win before the Court too. And I think it’s going to be in his administration’s interest to continue playing ball with the Court, so to speak.
So what do you think of that as a prediction? It’s not an astounding prediction. But more importantly, how might the court, based on what you know from history, be thinking about this moment?
Yeah, let me come back to the question of how strategic the Court is and how it might be thinking about this. First, one thing unusual about the Trump administration, if we think of it in reconstructive terms, is how different it is relative to the court.
Presidents may have reconstructive ambitions, but they often have to temper those ambitions because they don’t have political support to do it. A feature of the Trump administration, in contrast with these other great presidents we were talking about, is that he doesn’t have that kind of political support.
Despite the fact that Trump says he had a landslide mandate never known to man before, he had nothing like the support that FDR, Jackson, or Lincoln had—relative to electoral victories or congressional majorities. He’s working with a much thinner legislative majority, for example, than any of those presidents.
And let me just say, in contrast to FDR, Trump’s program is almost all executive orders. It’s not new legislation with deeper roots and longer life. I think that’s part of this political dynamic you’re talking about.
No, I think that’s right. It’s kind of remarkable. I have to assume the administration calculated it doesn’t have the votes in Congress to accomplish some of what it wants.
Why not get Congress to just bless what he’s doing in tariff policy? He can’t.
I assume that’s right. Otherwise, if you care about the future—even the near-term future—you would want Congress to bless some of these things. That also suggests this may not be nearly as durable as what we would expect of a reconstructive president, for example.
He’s not yet winning the larger political battle of bringing the country behind him, bringing congressional majorities behind him to solidify new policy commitments that will be stable going forward. This all may be very transitory and temporary, which is not a feature of reconstructive presidents.
But this has consequences for the relationship between the president and the courts. Part of what made presidents like FDR well-situated to go into battle the Supreme Court was that he had massive majorities behind him.
A lot of Republicans thought FDR might actually lose at the end of his first term. They attacked him in the ‘36 election, arguing he’s a dictator and saying you can’t possibly give him a second term—arguments that may sound familiar to some about how you try to attack a president like that as they’re moving into re-election.
It wasn’t successful. Republicans got trounced. FDR gained congressional seats in that election.
The court looked at that and said: We’ve lost on this issue. Moreover, not only was FDR vindicated by the voters at the polls, but his congressional majority was so large he could have easily passed constitutional amendments if he wanted to.
Trump is just not in that situation. He’s in a much more vulnerable situation, without that kind of support. So if he wants to take on the court, he’s in a weaker situation than FDR.
On the other hand, it’s also true that the Court is not filled with public confidence, either. All our institutions seem to be in a weak position these days. So if there were a conflict between Trump and the court, it’s not obvious how it would play out or who would be clearly victorious in that context.
It should give the administration some reluctance to fight, but it should also give the court reluctance to fight, which leads to the strategic question. I think the Court would prefer not to have that fight if they can avoid it. And I think they’re probably cognizant of the fact that Trump is unpredictable. He’s willing to violate norms in ways other presidents might not. So I don’t think you can safely assume, if you’re a justice, that the president would not defy a court order.
One thing we know from Supreme Court history is that the Court is very reluctant to be put in a position where a president might defy a judicial order. They would much prefer not to order presidents to do things if they’re all lacking in confidence the president will comply.
That may mean this Court will look for ways to avoid issuing those kinds of orders as well, just because because they can’t be sure what the Trump administration would do. And you don’t want to play chicken with the president if you’re the Supreme Court.
All right. I think that’s a great place to end. Thanks so much, Keith.
I highly recommend your book, The Political Foundations of Judicial Supremacy. And thanks for chatting.
Thanks. Appreciate it.
