Are the Courts Checking Trump — or Enabling Him?

Summary

Summary of "Are the Courts Checking Trump — or Enabling Him?"

The Opinions by The New York Times Opinion, released on July 15, 2025, delves into the complex relationship between the federal judiciary and President Donald Trump's administration. Hosted by David Leonhardt, the episode features an in-depth conversation with Michael McConnell, a former federal judge and current Stanford University law professor. Together, they explore whether the courts are serving as a robust check on Trump's actions or inadvertently facilitating his consolidation of power.

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1. Lower Courts' Responses to the Trump Administration

David Leonhardt initiates the discussion by highlighting the unprecedented rate at which both Democratic and Republican-appointed judges have ruled against President Trump. Citing an analysis, Leonhardt notes that "Democratic appointed judges have ruled against Trump 80% of the time and Republican appointed judges have ruled against him 72% of the time" ([00:17]). This high frequency of unfavorable rulings, especially concerning Trump's executive orders targeting law firms, signifies a historical anomaly in the judiciary's response to a sitting president.

Notable Quote:

"Even Trump supporters will be happy to tell you that he's trying things that are new, that have never been done before, that push the envelope."
— Michael McConnell ([02:21])

McConnell acknowledges that while administrations generally face increasing legal challenges over time, Trump's unconventional strategies have amplified his legal setbacks. He emphasizes that many of these losses are not pivotal policy defeats but rather retributive actions against lawyers and firms opposing him.

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2. Impact of Judicial Rulings on Administration Policies

Leonhardt probes whether these court losses have tangibly altered the Trump administration's policy trajectory. McConnell affirms their significance, particularly in the realm of immigration. He references a crucial decision mandating the administration to afford due process to undocumented immigrants, underscoring a rare instance where the courts imposed fairness into the system ([02:57]).

Notable Quote:

"The idea that they were required to give due process seems to have come as a shock to the administration."
— Michael McConnell ([03:54])

This decision exemplifies the judiciary's role in curbing the administration's more aggressive policies, ensuring that executive actions adhere to constitutional mandates.

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3. Shifting Dynamics of Checks and Balances

A significant portion of the conversation centers on the evolving landscape of checks and balances in the U.S. government. McConnell observes that "Congress ceases to be much of a check, at least if the same president that controls the White House controls Congress" ([05:01]). This diminishing role of Congress places greater responsibility on the judiciary to maintain oversight, a shift that diverges from the framers' original expectations.

Notable Quote:

"This is not a Trump thing. This was true under President Biden. It was true under President Obama, under President Bush, that Congress has ceased to be an effective check and the courts are more of a check than I think the framers ever would have imagined them to be."
— Michael McConnell ([05:01])

Leonhardt concurs, highlighting the constitutional implications of Congress's reduced efficacy and the resulting increased reliance on the courts to uphold democratic principles.

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4. The Supreme Court's Role and Perceptions of Partisanship

The discussion shifts to the Supreme Court's handling of cases involving the Trump administration. Leonhardt raises concerns about the perceived asymmetry, where lower courts frequently side against Trump, but higher courts, especially the Supreme Court, often reverse these decisions ([08:51]).

Notable Quote:

"The courts are being held to that kind of a partisan standard. And it is my hope, and I actually think it's turning out to be true, that the courts are not falling into that, that individual judges, you can say one way or the other, but the system as a whole seems to be sifting through the legal claims, and they're finding a path which is neither Team Trump nor Team Anti Trump."
— Michael McConnell ([06:16])

McConnell defends the Supreme Court's actions, attributing decisions to the court's adherence to legal standards rather than partisan biases. He explains that the Supreme Court selectively hears cases, often those with the highest likelihood of success for the administration, which can create a misleading impression of favoritism.

Notable Quote:

"I think the decision should not have been stayed. The reason I think that is that I think the likelihood of success on the merits is very high."
— Michael McConnell ([09:12])

This nuanced perspective underscores the complexity of judicial decision-making and the importance of evaluating court actions based on legal merit rather than political affiliations.

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5. Potential Thresholds for Alarm and Systemic Stability

Leonhardt prompts McConnell to identify scenarios that might elevate his concerns about the judiciary's role in democracy. McConnell outlines two critical conditions: a president's open defiance of a Supreme Court ruling and a systemic decline in judicial accuracy ([14:01]).

Notable Quote:

"If the president openly defied a final decision of the Supreme Court, we would be in very deep, republic endangering territory."
— Michael McConnell ([14:01])

He further contextualizes his concerns by referencing historical abuses of power, such as Franklin Roosevelt's internment of Japanese Americans and unauthorized military engagements, emphasizing that the integrity of the constitutional system relies on collective adherence rather than individual actions.

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6. Threats to Judicial Safety and Rise of Political Violence

The conversation culminates with a discussion on the personal risks faced by federal judges in the current climate. McConnell expresses profound concern over the hostile rhetoric directed at judges, including threats and harassment orchestrated by Trump and his allies ([16:38]).

Notable Quote:

"The rise of political violence in general. It is a real threat to the republic. That is not coming from the courts, and it's. It's coming from the climate of opinion in the United States."
— Michael McConnell ([17:08])

He highlights alarming incidents, such as an assassination attempt on Justice Kavanaugh and intimidation tactics targeting judges' families, underscoring the broader implications for the rule of law and the safety of judicial figures.

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7. Conclusion: Maintaining Judicial Independence and Systemic Integrity

Leonhardt and McConnell conclude by reaffirming the importance of an independent judiciary as a cornerstone of American democracy. While acknowledging the unprecedented challenges posed by President Trump's administration, McConnell remains cautiously optimistic about the courts' ability to uphold constitutional principles without succumbing to partisan pressures.

Notable Quote:

"It's been a pleasure."
— Michael McConnell ([18:19])

The episode serves as a critical examination of the judiciary's role in contemporary politics, emphasizing the delicate balance between legal oversight and executive authority.

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Key Takeaways:

• Federal courts, both Democratic and Republican-appointed, have frequently ruled against Trump's administration, marking a significant departure from historical precedents.
• While many legal setbacks are retributive rather than policy-defining, crucial rulings in areas like immigration underscore the judiciary's role in enforcing constitutional fairness.
• The diminishing role of Congress as a check on executive power elevates the judiciary's responsibility, challenging the framers' original design of checks and balances.
• The Supreme Court's selective case acceptance and reliance on legal merit rather than partisan considerations play a pivotal role in shaping the administration's policy outcomes.
• Personal safety concerns for federal judges and the rise of political violence pose severe threats to the integrity of the judicial system and, by extension, American democracy.

This comprehensive discussion provides listeners with a nuanced understanding of the judiciary's intricate dance with presidential power, highlighting both its strengths and the vulnerabilities that could jeopardize democratic norms.

Transcript

[Unknown Host]

This is the Opinions, a show that brings you a mix of voices from New York Times opinion. You've heard the news. Here's what to make of it.

[David Leonhardt]

I'm David Leonhart, the director of the New York Times Editorial Board. Every week, I'm having conversations to help shape the board's opinions. One thing that I find useful right now is talking with President Trump's conservative critics. They tend to be alarmed by the president's behavior, but they also tend to be more optimistic than many progressives about whether American democracy is surviving the Trump presidency. And that combination helps me and my colleagues think about where the biggest risks to our country really are. One area I've been wrestling with is the federal court system. I want to understand the extent to which the courts are acting as a check on President Trump as he tries to amass more power or whether the courts are actually helping him amass that power. So I decided to have a conversation with Michael McConnell. He's a former federal judge who's now a law professor at Stanford University, and he's a conservative. He was appointed to the bench by George W. Bush. But McConnell is also disturbed by aspects of Trump's behavior. And I find our conversation helpful because it highlights some reasons for optimism right now, as well as some of the biggest threats that our country. Professor McConnell, thanks for joining me.

[Michael McConnell]

It's a pleasure.

[David Leonhardt]

So I want to start with what's happening in the lower courts, although I promise we'll get to the Supreme Court. And the extent to which these lower courts have ruled against the Trump administration is pretty remarkable. One analysis found that Democratic appointed judges have ruled against Trump 80% of the time and that Republican appointed judges have ruled against him 72% of the time. And it really feels like these rulings have mattered. I mean, when you look at every law firm that has fought one of Trump's punitive executive orders, they've all won, and they prevented the orders from going into effect. So I'm curious if you think I'm right, that it is historically unusual to have an administration lose as often in court as this administration is losing.

[Michael McConnell]

Well, there's a long term trend where administrations are losing more and more. But that isn't to say that the Trump administration isn't unusual. Even Trump supporters will be happy to tell you that he's trying things that are new, that have never been done before, that push the envelope. And a president of that sort is, of course, going to log a larger, larger number of losses, even if he wins, a number of consequential wins.

[David Leonhardt]

And do you think his losses have mattered? Do you think that they have meaningfully altered the policy course of the first six months of the administration?

[Michael McConnell]

Well, I think undoubtedly they have, although some of the losses have been about decisions that are kind of like petty or revengeful on the part of the president. Going after the law firms, I do not think is promoting any particular policy of the administration. It's really a kind of retribution against individual lawyers and firms that have crossed him. Now, the immigration area, I think there has been major effect. The most important decision was the one that held that the administration was required under the due process clause to give allegedly illegal immigrants time.

[David Leonhardt]

The Trump administration's deportation plans hit another legal roadblock overnight.

[Unknown Host]

The Supreme Court blocking the Trump administration.

[David Leonhardt]

From using the Alien Enemies act to deport Venezuelans to El Salvador or elsewhere in general.

[Michael McConnell]

The idea that they were required to give due process seems to have come as a shock to the administration. It did not come as a shock to me, but it introduces a degree of fairness to the system that might not otherwise be there. And, David, can I just say one more thing about our republic, please? This is not actually the way the framers expected things to work. They expected there to be checks and balances, but they thought it was going to be Congress and the president duking it out most of the time for complicated long term reasons that are more political than they are legal. Congress ceases to be much of a check, at least if the same president that controls the White House controls Congress. And this isn't a Trump thing. This was true under President Biden. It was true under President Obama, under President Bush, that Congress has ceased to be an effective check and the courts are more of a check than I think the framers ever would have imagined them to be.

[David Leonhardt]

Yeah, and that has real downsides, because Congress is elected and the framers wanted in many ways the first among equals of the branches to be the one that was closest to the people.

[Michael McConnell]

I believe you're absolutely right. And so many of these questions, although they can be framed as legal questions, do have a certain amount of policy judgment in the backdrop that it's very uncomfortable for our system for judges to be exercising that kind of judgment.

[David Leonhardt]

I take your point that on some of these defeats, like the law firm executive orders, they aren't matters of grand policy. But I still take real comfort in what the courts have done here because I want to live in a country of laws rather than a country where people in power can do whatever they want. And those law firm orders were, to me, quite Pure examples of Trump trying to do things that really no modern presidents of either party have tried to do. They were forms of retribution. And so even if they're not major policy defeats, I would guess you share my relief that the courts have prevented a president from just punishing his enemies, using his pen.

[Michael McConnell]

Well, I was part of an amicus brief of former judges that made precisely that point in the cases about. About the law firms. And I don't mean to say that this isn't important. It is important. And I also think it reflects very well on the courts. And, you know, out there in the political world, people are really inclined to just choose teams. You're either on Team Trump, in which everything the president does is lawful and wonderful, or you're in Team Anti Trump, where everything he does is illegal and improper. And the. The courts are being held to that kind of a partisan standard. And it is my hope, and I actually think it's turning out to be true, that the courts are not falling into that, that individual judges, you can say one way or the other, but the system as a whole seems to be sifting through the legal claims, and they're finding a path which is neither Team Trump nor Team Anti Trump. But is something close to reaching legally defensible answers to these questions?

[David Leonhardt]

I think one of the worries that many people have, I'm guessing many of our listeners have, is that there's an asymmetry here, and they probably hear you and I talking about this, and they think, yes, but. Yes, but even though the lower courts are finding against Trump, the higher courts, and particularly the Supreme Court, are then often coming in and. And siding with Trump. And I want to make this concrete by talking about a case that you are very closely involved in. So you brought together a collection of liberal and conservative lawyers to write an amicus brief, which is basically a legal filing that tries to persuade judges. And in it, you all argued that Trump had vastly exceeded his authority in imposing his tariffs. And this is one of these cases in which a lower court ruled against Trump. They ruled that his. His tariffs did exceed his authority. They cited your brief, and I should say you're now the lead lawyer in that case for the plaintiffs. But then an appeals court came in and said the tariffs can go forward, at least temporarily. And so I think there are many people who say, yeah, the courts are sort of trying to. To play with the old set of rules. It's like that line, they're bringing a knife to a gunfight. And so I'm curious, first how you think about where the tariffs case now stands. And then let's broaden that out to talk about whether you have concerns that the kind of remedies the courts are finding are failing to meet the moment.

[Michael McConnell]

Yes. So what the Federal Circuit did in this case is it stayed the lower court's decision very quickly, but at the same time ordered full briefing on a highly expedited schedule. And this shows that the court as being highly responsible in that they realize the need for a resolution of this quickly, but they also realize that the president of whatever party is entitled to a certain degree of deference because he's been elected by the American people and President Trump campaigned on tariffs. This is not a surprise, but I think the decision should not have been stayed. The reason I think that is that I think that the likelihood of success on the merits is very high. And I think that the consequences of the tariffs for people like our clients, who are five small businesses, and it's documented just how devastating the effect of the tariffs is on their businesses. But the court placed more emphasis upon the ability of an elected president to be able to execute his policies until the courts have come to a final conclusion. And, you know, that is a restrained and responsible way to act. I can't criticize that, even though I think if I had been on the court, I probably would have gone the other way.

[David Leonhardt]

It's interesting because. So you disagree with this individual decision, but you would say, for the most part, you think the courts have responded pretty well to Trump. And I think there's a real concern that the courts just aren't showing the level of urgency that. That they should to prevent the really serious consequences of his policy, and that they are treating him too much like Joe Biden or George W. Bush or Barack Obama or Ronald Reagan, like any other president, when he isn't one.

[Michael McConnell]

Well, first, I think the notion that the courts are not acting rapidly enough is really a very strange thing for people to think. There have been hundreds of orders going against the Trump administration in the various courts. What is historically unusual here is just how fast the courts are moving. Now, it is true that the US Supreme Court has decided. I think it's maybe 20 times in a direction that you might say is pro Trump, but. But that is not a random sample of cases. The Justice Department is not taking every case up to the U.S. supreme Court. They are taking the best cases for them up to the Supreme Court. And the Supreme Court itself is not very inclined to take on an emergency basis. It's not inclined to take cases where the lower Courts just did what they thought was right. And so this gives this impression that the U.S. supreme Court is out there, like protecting the Trump administration, when that's just the way the numbers necessarily work out, given the structure of the litigation situation that faces the court.

[David Leonhardt]

So I think I hear you saying that you're mostly positive about how the Supreme Court has dealt with this incredible flurry of policies, far reaching policies. You think they tend to be getting the balance right. You're not saying in every case, but that they're deciding the questions before them first, which is typically what we want our courts to do. And you think that they're in a tricky spot and they're mostly doing what we should want them to do. Is that a fair characterization of your take on the court?

[Michael McConnell]

Yes, it is. And I think that they are doing what Democrats would have liked them to do under Biden. And I think that that's really the point, is that we shouldn't bring a partisan lens to evaluating these decisions. We ought to look at the law and see whether they're getting it right.

[David Leonhardt]

So I'm going to ask you to speculate a little. What would it take for you to become much more alarmed? Because there are many people who are quite alarmed about the state of American democracy under President Trump. In some ways, you're among them. Right? You are really worried about the tariffs and the effects that they will have and his lack of legal authority for implementing them. But you also seem to believe the system is holding. And so for people who are more worried than you, I'd be curious what to you are the things that might flip you into the other camp. What is it that would lead you to think we were crossing a line that we haven't yet crossed?

[Michael McConnell]

That's a great question. And let me give an answer both from what the president might do and also what the courts might do. If the president openly defied a final decision of the Supreme Court, we would be in very deep, republic endangering territory. So it hasn't happened yet. If it did happen, that's something that would be deeply concerning on the court side. If the whole system started getting a bunch of cases wrong, I'd start getting more alarms. So far, I've seen decisions I don't like, but I think on the whole, they're sifting through these conflicting claims and they're deciding them both ways. And it seems to me that's, that's pretty reassuring. And when I look at our constitutional system as a whole, you know, plenty of presidents over the years have done Absolutely outrageous things. I mean, for President Franklin Roosevelt to lock up Japanese Americans during World War II was, you know, an appalling thing to do. I think we have gotten involved in wars without congressional authorization. And the way I read the Constitution, this is not permitted. It doesn't go to court. And there's not much, you know, the courts, I think, could do about that, but that doesn't mean it. That it isn't right. So there are a lot of individual things that presidents can do that I think are deeply disturbing. But when we're talking about the Constitution and our republic, it's not about individual presidents or individual acts. It's about the system as a whole. And the system as a whole, I think, you know, is under enormous strain. But it seems to be working, I think, much better than a lot of my colleagues seem to think.

[David Leonhardt]

Let's end by. I want to talk about one more thing that worries me, and, and it's a little bit more personal in nature, given that you have been a federal judge. Many federal judges sit. Federal judges today feel less safe than they did before. They worry about their personal safety. They worry about their families. And they do because of the incredibly harsh language that Trump uses to talk about judges.

[D]

We have bad judges. We have very bad judges, and these are judges that shouldn't be allowed. I think they. I think at a certain point, you have to start looking at what do you do when you have a rogue.

[David Leonhardt]

Judge, this notion that if they disagree with him, they're somehow enemies because of the even harsher language that people who are very close to Trump, his aides, people who visit the White House, they've published information about judges families, they've sent pizzas to judges houses in some sort of vague, threatening way. Are you worried about the ways that President Trump and his allies are talking about judges in recent months?

[Michael McConnell]

I am very worried about the way people are talking about courts and judges in recent years. And President Trump ought to be ashamed of himself for engaging this and the Attorney General Bondi as well. But what was said about the courts under Biden was not any better. And don't forget that that is when, you know there was an assassination attempt on Justice Kavanaugh. People were camped out in front of Supreme Court justices houses. By the way, it isn't even just judges. Judges are maybe the most concerning to me, but the rise of political violence in general. It is a real threat to the republic. That is not coming from the courts, and it's. It's coming from the climate of opinion in the United States. Where it's suddenly okay. If you don't like health care, you can shoot the CEO of a healthcare company. If you don't like a congressman, you for political reasons, you can take a shot at him or her. That way lies disaster.

[David Leonhardt]

Professor McConnell, I really appreciate you joining us today.

[Michael McConnell]

It's been a pleasure.

[Unknown Host]

If you like this show, follow it on Spotify, Apple, or wherever you get your podcasts. The Opinions is produced by Derek Arthur, Vishaka Darba, Christina Samulewski and Gillian Weinberger. It's edited by Kari Pitkin and Alison Bruzek. Engineering, mixing and original music by Isaac Jones, sonia Herrero, Pat McCusker, Carol Sabaro and Afim Shapiro. Additional music by Aman Sahota. The Fact Check team is Kate Sinclair, Mary Marge Locker, and Michelle Harris. Audience strategy by Shannon Busta and Christina Samulewski. The director of Time's Opinion Audio is Annie Rose Strasser.