← The Political Scene | The New Yorker
The Political Scene | The New Yorker
Will the Supreme Court Hand Trump Another Slate of Victories?
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B
Hey, Jeannie.
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C
Hey, Tyler.
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B
So this past week marked John Roberts 20th year as chief justice of the Supreme Court. If you're John Roberts right now, how are you feeling about what you've done on the job? Like, I guess. What would you say that Roberts legacy is or is starting to look like?
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C
Well, John Roberts came on the court at a time when it was pretty clear what his role was gonna be. And it was pretty straightforward, I would say. He is a person who, you know, very classically was trained and cultivated and educated at a time and in places where the conservative legal movement was gaining traction. And he is a product of the conservative legal movement. And the conservative legal movement spent a bunch of years kind of in exile, one could say, because you had a very liberal Warren Court and then to some extent Burger Court after that, that put in place all these decisions that than the conservative legal movement said were lawless and had to be gotten rid of if the time came one day that they had enough votes to do that. And John Roberts is, of course, part of that, you know, large strategy. And that would also have meant getting rid of Roe vs. Wade and getting rid of the affirmative action decisions. But he, like a conservative, was doing it in a longer timeframe. He was doing it slowly. And you see it from the time he got on the court. You see the court moving further and further in conservative directions. And then suddenly you get the Trump administration and all of the different conservative appointees. And now it's like, this is now or never. And so then you get a really much more quick acceleration of the establishment of certain conservative ideas in the Supreme Court's jurisprudence. And, and I think that that is his legacy. It's the overruling of certain of the Warren Court and Borough Court decisions. But it's also the establishment of a conservative legal movement vision of the expansive executive power that he and his colleagues have been in favor of. It is just certain hot button issues, certain civil rights gains that have been made in the past decades. And, and that the conservative legal movement thought were erroneous. Those are, you have a different civil rights vision, one that having to do with colorblindness. So those are the kinds of things. But overall, he's had a really hard job, much harder than what he signed up for, because in 2016, Donald Trump became the president, and then this year he became president again. And that just makes the court's job a lot harder for reasons I hope that we will get into.
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That's Jeannie Sue Gerson, a contributing writer for the New Yorker and a Harvard law professor. The Supreme Court's new term begins in October, and the docket already includes major cases on Trump's emergency powers, restrictions on transgender athletes, and racial gerrymandering, among other things. This week also marks Chief Justice John Roberts 20th year on the court, a reminder of how much has shifted in the institution during his tenure and especially during Trump's second term. I wanted to talk with Jeannie about the themes that define this new chapter for the court, how it's handling Trump's expansive view of presidential power, how far it might go on issues with widespread and long lasting effects on American politics and daily life, and what all of this reveals about the Court's legitimacy and independence in Trump's chaotic and consequential second term. This is the political scene. I'm Tyler Foggatt and I'm a senior editor at the New Yorker. So I want to talk to you about some of the cases that the court has on its docket for the next term, which seem really interesting and fairly consequential in part because they, they kind of center around some of the themes that have defined Trump's second term, like the reach of presidential power and the future of voting rights and the battles over LGBTQ protection. So the first one is that, that I want to talk about is the, the tariffs case, basically. So in November, the Supreme Court will hear challenges to Trump's tar. He imposed these on April 2, Liberation Day, as you may remember. And he did this by declaring a national emergency. And then the lower courts said that he overstepped by doing this. So this seems like a pretty big deal, in part because tariffs are so key to Trump's economic agenda. And it strikes me that protectionism is, like, maybe one of the few policy positions that he's actually been consistent on for a really long time. And it's also just one of those things where one of the big questions about tariffs has been, will American manufacturers even have an incentive to try to move manufacturing back to the states if these tariffs are something that might just get totally eliminated or overruled? And so it seems like this case is something that might give us some more certainty about what's actually going to happen in terms of the country's economic future. So I guess we should just start by talking about how this case made its way to the Supreme Court. What exactly is being challenged here?
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C
Yeah, there's a congressional statute that's called the International Emergency Economic Powers act, and that is decades old. It's not a new statute, but that is the statute at issue here. It grants the president broad authority to regulate during a national emergency that he declares to be a national emergency. And the powers that this statute can be invoked to address includes things like national security, foreign policy, and the economy having to do with matters that originate outside of the United States. So these are classic areas in which the president is thought to have a lot of authority anyway, right? Foreign relations, foreign policy, national security, and, like, international economic matters. And so the thing is that you have to have the president's declaration that there is an unusual and extraordinary threat to one of these areas in the United States in order to unlock the authority that this statute gives to the president. And, of course, the president, as we know, Trump did declare an unusual and extraordinary threat in terms of the situation with world trade.
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B
Was the threat like the trade deficits that the United States has with other countries, or was it this threat of fentanyl coming over the border and that sort of thing?
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C
It was a combination of things. And I don't think there was one singular, overarching, coherent thing. But the two things you mentioned are very much the themes. It's the trade deficit and drug trafficking. Those were declared by President Trump to be emergencies. And so once he declared that, in theory, if the declaration is a valid declaration, then the statute has a congressional grant of broad emergency authority in, especially in the foreign affairs realm. And trade is a form of foreign affairs. So that would be the argument on behalf of President Trump and in the Supreme Court. What you see, it's very interesting that the way that you started also in discussing this topic is, I think it's notable because it kind of, you know, in a situation like this, there's the legal question of was the law followed? Does the law actually authorize the President to do something like this, even though there's no mention of the word tariff in the law? And secondly, if it does authorize the President to do this, is that unconstitutional for Congress to do? Because that's like delegating authority to the President. That seems more like legislative authority than executive authority. Those are the arguments, those are the questions. And I think the way you raised it was by saying what a big change it would be, like policy wise. And he's already imposed these tariffs. He's basically gone ahead and remade the world trade system by doing what he's done single handedly as the President. Now he's cloaked himself in the authority of the federal statute that I mentioned. But now if the Court says, if the Supreme Court says that what you did is unlawful, then what there is this question of sometimes with the law, if the Court says something is unlawful, then you just stop doing it or undo it. And that can be somewhat straightforward. But here, what in the world are we supposed to do? I think that that is why the briefs on behalf of the President in the Supreme Court lead, really lead with the idea that declaring the tariffs unlawful would be catastrophic. And the legal arguments come kind of second to that. And I think I counted in the brief like at least four times in the first few pages of the legal brief in the court that uses the word catastrophic. And so it's trying to impress upon the court like, you may think that legally something should happen, but on the other hand, you should be influenced in your view of the legal technicalities here by how bizarrely catastrophic it would be to say, okay, we imposed these tariffs and now they were unlawful.
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B
How much does the Court care about something like that? Like, especially if you're an originalist and you're kind of like just looking at like, okay, does the text of the Constitution give the President the power to do this in, you know, such a way? Are you really even supposed to be thinking about these consequences? Or isn't the whole argument that you're not supposed to be thinking about those and you're kind of looking specifically at what the language of the Constitution implies?
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C
That's such a great question. And here is one way that I think of it. I remember when I went to interview for a Supreme Court clerkship with Justice Souter, and my previous background before law school was in literature and French literature. I'd written a dissertation and a book about French literature. And he knew that. And so he looked at my resume and he saw that I had had that background. And I remember one of his concerns that he actually raised with me in the interview was, you know, we are here. He meant we, the Court, you know, we're here, and we work with ideas and concepts and reason and, of course, words and the meaning of words. But at the end of the day, what we're trying to do is get some things done. It's not just about parsing these words. And I know you've studied and you are adept at doing that, but I just want to know what you think about that piece of it, that this is not about just, you know, words and concepts, but about practical reason. It's about getting some. Some stuff done. I don't think that the consequences of a court decision is ever really totally far from any justice's mind, and I don't think it's supposed to be. This is not to say all decisions that they make are purely political or purely policy based, but it would just be wrong to think that what the Supreme Court is doing, you know, especially those nine Supreme Court justices, is only looking at words and history and semantics and figuring out what. What the law is meant to do. I think that it is also the court is always thinking about, well, what are the consequences? Not just the legal consequences, but the practical consequences. So I don't think that it will fall on deaf ears, but I don't expect the court to, at least in the case, to specifically say that that is why they're making this decision.
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B
So this case would undoubtedly have an effect on the tariffs themselves, but what kind of effect could it also have on Trump's emergency powers, or how he. When he is able to invoke the emergency powers? Because I feel like that's something that we've seen him do a few times now during his second term. And so do you think that that would kind of curb his use of those to justify certain policy decisions as well?
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C
That's part of why this case is so important, because you're right, it's not just about tariffs, and it's not just about this particular statute, the ieepa, the concept of an emergency. The statute actually just kind of quickly says, when the President declares any unusual or extraordinary threat, and it doesn't specify how the President should go about declaring that threat, what are the things that count as that kind of emergency? And so in the silence, when it's a very, very simple language like that, Very spare language. You could think, well, it pretty much leaves to the President to determine when something is an emergency, and there isn't kind of a check, you know, beyond the fact that Congress has given this authority, there isn't a check to say, look, you did it wrong, President, it's not actually an emergency. And it's utterly plausible that those who would draft statutes like this, and there are multiple statutes, of course, in the Federal code that provide for the President to do things when there's an emergency or when he declares an emergency, this is not just the statute. Many statutes that Trump is actually using for all it's worth do that. And so this case has the potential to tell us how much deference the President gets. It could be complete deference. That's one possible result, that once the statute says any unusual, extraordinary threat, the minute the President says that, then the President's power is pretty unlimited, and his power to determine whether something's an emergency is pretty unlimited and unchecked. Now, that's a problem mainly because it blows a huge hole into the structure of separation of powers in which we expect the President and Congress and the courts to service checks on each other. And here, what the court could possibly say is, look, we as the court, as judges, have no power to tell the President, you did it wrong, and determine that there's an emergency when there isn't. Because what's the court going to do? They're going to research whether this counts as an emergency or not. The person who is most equipped, they may say, to do that and elected by the people to do that is the President of the United States. So who are we to do that? So I have a really hard time seeing the Supreme Court actually saying that they're gonna second guess the President's declaration of an emergency here. And that means the President's declaration of an emergency in many other contexts will also potentially receive a lot of deference.
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B
Like the deployment of the National Guard.
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C
Exactly. The deployment of the National Guard, you know, all of the immigration actions, deportation, you name it. Anything that he can do on law enforcement in the country that has to do with a problem that he considers to have originated outside of the country can be brought under this kind of argument. And so I think that this is a really, really significant case and one that the Supreme Court will have difficulty with. But I also think that the chances of the Supreme Court finding against the President in this particular case, it's very low.
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B
Yeah, that seems right, given, I mean, all you've written about, the way in which the court has shown deference to the president in terms of his use of executive power. On a. You know, just thinking about a different case, and this is more on the culture war side of things. There's this case where the court is going to be taking up state laws that bar trans athletes from playing on women's sports teams. And these laws are part of the wave of restrictions that we've seen from the Trump administration targeting trans people, both children and adults. These are, you know, restrictions that Trump ran on and then made good on basically as soon as he entered office. So what exactly is the court being asked to decide on here?
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C
Yeah, so some states have passed laws, and in these cases, it's Idaho and West Virginia, and those states have said that students of the male sex cannot join women's sports teams. And in another state, another way of saying this is to say sports teams should be designated based on, quote, biological sex, unquote. Right. So either way, that the idea that you ban male students or male sex, you know, and sex is defined as biological sex, saying that they can't join sports teams or that sports teams should always be designated based on biological sex. And so these are laws that are being challenged in the courts and now in the Supreme Court as a violation of the equal protection clause of the 14th Amendment. And so, for one thing, there is the Constitution, the equal protection clause. There's also Federal Law, Title 9, which is a law that prohibits sex discrimination in schools that receive federal funding, which all these schools are. So is it a violation of the provisions of Title IX to pass a law like this for a state to say only, you know, quote, biological males must play on boys teams and not on girls teams? Or that biological sex is the only way that you can, you know, sort of sort people into what sports teams they should be on. Does it violate the equal protection clause? Does it violate Title ix? Those are the two provisions of law that are being invoked to challenge these state laws. And so now the Supreme Court has these cases in front of it, and it will, you know, it will have to say whether this kind of state law violates the Constitution and violates federal civil rights law.
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B
Would you say that this case is distinct from some of the other cases involving the transgender community that the court has ruled on recently? Like, is it useful to look at any of those previous cases involving access to hormones for individuals of a certain age? You know, like those sorts of cases? Or is this, like, a completely different legal question?
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C
It's not a completely different legal question, because the transgender case that we saw from the Supreme Court this past term, which was about pediatric treatments, obviously for children, it did not involve adults. Pediatric treatments for children for transition. That case was also about the equal protection clause of the 14th Amendment. And so that case, having just been decided a few months ago, will certainly have an impact or a gravitational pull on this case, given that the Supreme Court in Skermetti, which was the pediatric treatments case, that case said that this was not a violation of the equal protection clause to essentially ban such treatments for minors. And they got there by saying this was not a sex based classification. And that's a conclusion that, that I disagreed with. I think it was a sex based classification. But here I don't think they're going to have as easy a time saying this isn't a sex based classification. It says right here, students of the male sex cannot join women's sports teams, so they might have to say this is sex based classification. Then is there an intermediate scrutiny? Is there a rationale that satisfy intermediate scrutiny in that there's like an important government reason for doing this and that it's substantially related to that government reason, so this might be a more difficult case for the states to win. At the same time, I could see the Court doing various things like saying actually it's not a sex based classification because students of the male sex can't join women's teams. And then at least in some of the states, you know, like the biological women can't join the men's teams. If it's treating all sexes like reciprocally, there is a chance that the Chief justice will think of it the way he thought of it in, in the Scormetti case and say it's not a sex based classification.
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I see. Because you're not discriminating against one sex versus the other. It's just like a, it's a rule that applies in both directions.
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C
Yeah, that, that's the, that's the reasoning. I do not agree with that just because it applies to both sexes, that makes it a not sex based classification. But that was the reasoning that the Chief justice used. But here you've got two cases, one that says designated based on biological sex. The other one does actually just say students of the male sex can't compete in women's sports, but not the inverse. So you've got that distinction there. But overall, I think the Court is probably going to find in favor of the states and say that whether you use the lowest level of scrutiny, the rational basis scrutiny, or the intermediate level of scrutiny, either way, I think they're going to say that the interest that the state has in this is an important one, and that this was a substantially related legislation to accomplish that interest.
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More on the Supreme Court's upcoming term in just a moment. This is the political scene from the New Yorker. America is changing and so is the world.
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Tristan Redman in London, and this is the Global Story.
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Every weekday we'll bring you a story from this intersection where the world and America meet.
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D
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B
I'm curious to hear your thoughts on another case. So in October, the court will hear a challenge to Louisiana's congressional map. In 2023, the justices actually surprised a lot of observers by upholding a lower court ruling that Alabama's map violated the Voting Rights Act. And then the court required the state to add a second majority black district. And so now they're reviewing a very similar dispute dispute out of Louisiana. And you know, besides the fact that we're now looking at Louisiana instead of Alabama, is there anything different about this specific case?
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C
Well, I think that possibly it took some time. But there's some chance that the court, a few years later, is ready to think about the Voting Rights act more broadly, and especially after the SFFA versus Harvard decision, which adopted a colorblindness rationale for admissions, college admissions, that I don't think anybody expected to just remain limited to the college admissions context. So that case was kind of the turning point, saying, like, look, all the little pieces you've been seeing for years, it's now being consolidated. We're going to say this in the Harvard admissions case, but this is colorblindness. And that is the vision of civil rights that we have. And so voting rights and admissions, they're different areas, but they have always been pretty linked in what the Court's thinking at a particular time. So the idea that you can't make distinctions between people based on race, that's the idea that is being applied by those people in courts who are saying it's unconstitutional racial gerrymander. If you think about voting districts in terms of creating a majority minority district, you have to take race into account and distinguish between people of different race in order to do that. And regardless of whether your purpose is a bad one, because you can imagine drawing a congressional district to pretty much dilute the votes of black voters or somehow disenfranchise them, you can do that, but you could also create a congressional district that's majority black in order to make sure that black people's voting rights are upheld, given the long history of voting discrimination against black people in that particular region. So for a lot of people, the purpose behind it would make all the difference. But for the Supreme Court, I think the purpose behind it is pretty secondary to the fact of it happening at all. The fact that there is a racial distinction being made. And for some of the justices on the court, they think of it, like, as indistinguishable from segregation, like racial segregation. And so that's the big issue. And I think it's going to have a big revealing impact. And there's a very big possibility that at some point, maybe not in this case, that the remainder of the Voting Rights act that still remains on the books and hasn't been struck down by the Court, may be struck down.
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B
So I mean, what would that. I mean, like, fast forward a few years, like, what would all the maps look like? I mean, I guess to what extent would this kind of force a change to pre existing maps that aren't being challenged in court? And like, is there a way to kind of, like, look into the future? Like, what America would look like, you know, if the Court did rule in that direction.
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C
Yeah. So there are a few possibilities and nothing is out of context. You have to think about the context of the Supreme Court having declared recently that political gerrymandering, like totally partisan political gerrymandering, that is designed to protect one political party or protect the incumbent, all of that. It's not something that the Supreme Court is going to declare to be constitutionally wrong, that this is not a constitutional issue that the Court is going to be able to do something about. That's what they said in Rucho v. Common Cause. The idea is you can. Politically, it's not like they said, go ahead and politically, gerrymandering, it's fine. What they said was, if you do that, you're going to have to have some other remedies for challenging it, not the courts. That is what they said. But realistically, what that means is lots of people take it as, let's go ahead and do political gerrymandering, because there's nothing unlawful about it. So in a context with rampant political gerrymandering, unchecked by the federal courts in constitutional rulings, then you've got the racially, the racial gerrymander, and whether that's unconstitutional or not. And essentially, if it looks like what you're trying to do is on the basis of race, like back, you know, just think, you know, in terms of our history, the stuff that happened without a legal remedy for a long time where black people were disenfranchised specifically on the basis of race, that would still be unconstitutional because that would be taking race into account according to the Supreme Court's vision of colorblindness. But if it just so happens that the maps are drawn in a way that is basically preventing minorities from being able to get the person of their choice elected, because they're going to be the permanent minority. The permanent minority. And if you're a permanent minority, then you're just losing every time you go to the polls. Given the way that our system is set up, this is not proportional representation. And so basically what that means is that situation is not something that has a constitutional remedy or a federal remedy. If the Court ends up striking down the federal Voting Rights Act. The federal Voting Rights act, just for. Just for context, requires states with this kind of history to work hard to remedy it going forward. And states have done that by creating majority black congressional districts. But the Court has also put some guardrails on that by saying you can't go too far and make race the predominant or only factor. Right. So they've been trying to reach this middle ground where you have to remedy and do something about past discrimination, but you can't go so far that it's all about race. And so we may see that be a holding pattern, or we may in the future see the court say you just can't take race into account at all.
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B
So, Jeannie, I told you about the cases that I'm interested in, and I'm wondering which cases you're interested in. Like, are there any of the three that we just discussed that, you know, you were really keeping your eyes on, or is there another one I didn't mention that you're really, you know, kind of closely anticipating?
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C
Yeah, well, I'm. I'm closely anticipating mostly. I mean, all of. All the ones that you talked about. But also, in addition to those, I'm really interested in seeing what happens with the Colorado ban on conversion therapy for minors. Yeah, so again, this is a case about kids, and it's about states that want to ban the medical or psychological or psychiatric community's practice of conversion therapy, which are treatments that are trying to change someone's sexual orientation or gender identity. So this also affects not only gay kids, but trans kids. And the question, you know, you can. Again, it's all about the framing, and it can sound different depending on how you frame it. So Colorado, which bans this conversion therapy, of course, wants to think of it as, well, we're a state. We license professionals and we regulate professions. You can't have people practicing psychiatry, psychology and counseling and things like that without any regulation. And so we have a whole host of regulations. This is one of them. And based on professional standards, we have determined that conversion therapy is not something we want to think of as a form of therapy for minors. And so we're going to ban that. So you can just frame it as like a very ordinary exercise of state authority to regulate professional standards. On the other hand, on the free speech side, you can frame it as, this is a law that's trying to censor what people can say to each other, what counselors can say to people they're treating completely based on the viewpoint, because this isn't, you know, this is only banning the viewpoint of trying to convert someone into not being gay or transgender as opposed to converting them in the other direction. And so this seems like a viewpoint based regulation of the speech of these therapists. And so is this a violation of the free speech clause of the First Amendment because it's telling people you can't say certain things. And it's totally based on the government's preference for a viewpoint. You know, Colorado prefers that people not be converted or attempted to be converted. And on the other hand, it seems like you got to have ways of regulating the profession so that not everybody, no matter what their issue is, can just hang up a shingle and be like, I'm a therapist and you can come to me for treatment. So I think of this case as one that will pose some difficulties for the Supreme Court. So I'm watching that really closely. It is a First Amendment case.
- [35:38]
B
More with Jeannie Sue Gerson after the break. This is the political scene from the New Yorker.
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E
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- [36:43]
B
I feel like I see so many different narratives about the courts and whether or not they are kind of enabling Trump's agenda or stopping it in its tracks. And I think it might just be a question of, like, what the lower courts are doing versus what the Supreme Court is doing. But it's like, you'll see a headline where it's like, Trump loses, like, seven big cases, you know, this week, and then it's all like, kind of like lower court rulings or preliminary injunctions, you know, stopping him from, like, gutting the funding of, you know, some agency. And then often it will be followed by a Supreme Court, you know, kind of like shadow docket ruling that then, you know, that kind of refutes what the lower court did. And so I guess I'm wondering, like, do you think that for the most part, Trump has been helped by the courts or stopped by the courts? Like, to what extent has this extreme and yet mainstream agenda been kind of branded constitutional?
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C
Yeah. So one thing I will note up at the top is just the I. When I think about what is the main theme of the country in 2025 and going into this New Supreme Court term that's going to happen starting next week. They connect to what we talked about before. I think one key idea is emergency, and one key idea is just things that being in extraordinary and in crisis, those kinds of concepts, and they work in several different ways. And every branch of government is thinking of it in its own way, as is the public. So I think the public, since the first weeks of the Trump administration, many people have been talking about there being a constitutional crisis or a legal crisis or a destruction of the rule of law or, you know, tons of lawlessness. And in that way, you get the concept of extraordinary times and, you know, kind of a five alarm fire on the rule of law happening. And so we're living with that sense of lots of people saying that. Now, in terms of the president, the Trump administration is pushing the presidential power to its absolute limit, including the power granted to the president by the Constitution and the power given to the president by Congress, especially for emergency and extraordinary circumstances. So basically, if you put lots and lots of things into the emergency or extraordinary circumstances bucket, then the scope of presidential power expands and expands and expands and potentially could be quite unlimited. So that's the way in which the emergency idea is like animating this presidency. And then as for the Supreme Court, now the court is only really reactive in that they can't do things on their own. They have to wait till a case comes before them, and they have to just decide that case one case at a time. Well, the court has been extraordinarily active, not just in its merits cases, but in the emergency docket over the summer. That's supposed to be their break, when it's quiet and we don't hear anything from them. But as you said, every few days we hear something from the Supreme Court of the United States. During the slow months of the summer, as President, Trump has asked the court to stay the orders of lower court judges. So these lower court judges, many of them have found against the president and said what he was doing was unlawful. And then Trump asked the Supreme Court and the Supreme Court, instead of saying, well, this is emergency docket, we'll deal with it if we grant cert and then address it on the merits. They've been really active in issuing rulings and reversing a lot of lower court decisions. So you've got that split between the lower court and the Supreme Court in a lot of cases. And so what I would say is he hasn't won a lot in the lower courts. He's actually been extraordinarily unsuccessful in the lower courts. But what matters to him and his administration is not the lower courts. What matters is what the Supreme Court's gonna say. And frankly, he has had about, by my count, around 85% success rate so far since he took office. He's asked for emergency review, like filed an emergency petition at a much higher rate than any past president, and often by multiples. So it feels like a different order of magnitude in the action that the Supreme Court has to take on the emergency docket, in part because of how much the Trump administration is going to. And the signal is, look, the lower courts don't matter. It's really the Supreme Court at the end of the day, because we don't think, you know, the message of the Trump administration is we think these are all like Biden or Obama appointed or, you know, just woke judges or whatever. And so really, it's the Supreme Court that matters. And the Supreme Court has given him a lot of victories in these emergency docket cases. And it's not just because it's the emergency docket and on preliminary injunctions and things like that. I don't think we should get the impression that these are not important cases, they're extremely important cases. And that's partly what's disturbing about it, because I think that, you know, as Elena Kagan has repeatedly mentioned, I feel like she's kind of been the conscience of the court on this issue. The court operates by explaining its reasoning and laying out why it's doing what it's doing. But when it comes to the emergency docket, the doesn't have the practice or ability to do that on such a short time frame. And so what we're getting is a lot of exceedingly important decisions, ones that actually affect the balance of power between the three branches of government, and especially the President and Congress. And we're getting them again and again without any explanation from the court about why it's doing that. So, on the one hand, you could have a problem with the outcomes. You could say, oh, the. The Court is deciding in favor of Trump, and I don't like that. But you could also, as a lawyer and someone in my position, I just think the main problem is not getting the explanations where sometimes you don't even know whether the court decided on procedural or jurisdictional grounds or on actual substance, like the merits of the decision. And so I do think it's a real problem for the legitimacy of the court. And speaking of Chief Justice's 20th anniversary on the Court, this is something that does affect the legitimacy of his court that on his watch, this has become a common practice to issue major rulings without explanation.
- [43:03]
B
Why aren't they explaining more, in your opinion? Because I totally understand why. I think, like, as you said, there's a lot of suspicion surrounding the emergency docket, in part because, you know, one of the more popular names for it is the shadow docket, which just like, sounds sketchy, you know, like in. In name alone. But it seems like if Trump is constantly invoking these emergency powers and saying that this is, like, an extraordinary situation where, like, you know, where it's going to be a problem for me if I can't make this cut to the Department of Education right now or this budget cut to the NIH right now, like, that this is going to, you know, cause harm. And so it seems like the court is kind of forced into a situation where it has to be doing these things on the emergency docket, as opposed to waiting until a case, you know, moves all the way up and reaches them when their term is happening. But then, you know, once they're actually doing this via the emergency docket, is there a real reason why they couldn't then just, like, have a very lengthy explanation for why they are making certain decisions? Or is like, is that kind of just what we're used to with the emergency docket, that it's always going to be this kind of preliminary thing that they might explain more later in a future case? Or is there a world in which they could answer these things using the emergency docket because they need to be working quickly and yet still give us an explanation that would, you know, not leave us on this podcast wondering what the heck is going on? Mm.
- [44:20]
C
Yeah. So the practice of not saying very much on the emergency docket when the court issued a decision, in part that came about because it was very infrequent that a big decision like this would go on and then you wouldn't do much to explain, because the structure of the term is that you've got the merits cases from October to June, and they are huge cases with a lot of energy and a lot of research and a lot of work goes into them. But the emergency docket is by its nature supposed to be interim or temporary. And also, I think the custom is to not address, you know, really world changing, extremely major questions and change the status quo on them on the emergency docket. But that is exactly what is happening, what Elena Kagan has been pointing out and being really disturbed about, that major changes are happening in the court's case law. And even, like Signaling that there's. I think everyone by now accepts that Humphrey's executor, which was this 1935 case about independent agencies that allowed Congress to insulate leaders of certain independent agencies from firing without cause. It's a way of insulating people from, like, politically motivated or policy motivated or other kinds of partisan firings of agency heads. And so that case is going to be overturned. We all know this because the Supreme Court has signaled so in several instances. And in fact, Justice Gorsuch even lambasted a lower court judge for not going forward. He acted as if there was a Supreme Court decision on the books that the lower court didn't follow, when, in fact, the emergency docket, it's temporary, it's interim. I mean, it was certainly news to me that you're supposed to treat that like a decision of the Supreme Court on the merits, on Supreme Court precedents. And if you're gonna overrule a case, you gotta do it when you've had full briefing and full deliberation and full, you know, research and work. And this is not what happened. And so I think the Court's vision of its docket must be changing because you no longer have that hard distinction between the merits docket and the emergency docket in terms of the major things that the Court thinks that it can do there and expect the lower courts to all fall in line with it. I thought before this that the lower courts would be correctly doing their job to say, these aren't binding on us. The emergency cases are binding in those cases, but not. Not as law for the whole system of lower courts. But now we understand that to be different. So these are major changes. And I really. I think that the Court's vision of what it's doing, we have to take into account, at some point, we have to stop thinking, like, oh, you're doing something extraordinary here, and think, okay, this is the way the Court is going to go from here on in.
- [47:20]
B
I mean, I've been really struck, too, by, like, the way in which, you know, like, Gorsuch and Kavanaugh have been criticizing these lower court judges and almost, like, chewing them out for, like, not being mind readers.
- [47:30]
C
That's correct. Yeah. So that's not really, again, like, that's weird. Yeah. To go back to the Chief Justice's legacy. It's not. We know that the Chief justice cares about the Court's legitimacy under his watch and is concerned about that. And it's just not good for the Court's legitimacy to be issuing these rulings on extremely important, divisive, politically charged matters without explaining its reasoning. Because that's part of what we think in our country. We think of the Supreme Court as not just issuing the decision, but also saying why? And you may disagree with it, or you may agree with it, but at the end of the day, you know what the court was thinking and why it reached the decision that it did. And I think that that is so ingrained in the justices that perhaps the justices, some of them got defensive and that led to the lambasting of lower court judges. Because the lower court judges, at the end of the day, are the ones who have to follow the Court's reasoning. And it's the scope of the decision, the scope of the reasoning, and the ways in which it applies and the ways in which it may not apply. And the way it may. Those lower court judges are the ones who were really working it out. And in these cases, there wasn't any explained reasoning to follow. And the justices knew that. And then they see a judge, you know, pretty reasonably acting according to the normal principles of lower court judging, and they know they haven't given enough to the lower court judges. And then so I saw that kind of outburst from Justice Gorsuch as a kind of defensiveness because he knows that he's not following the norms.
- [49:09]
B
Yeah, it's one thing to have a president play fast and loose, but it's another to feel like the Supreme Court might be doing that, too. Or at least that's the impression that is given when, yeah, there are these emergency docket rulings that, yeah, just don't explain anything. And then they're kind of expecting the lower courts to be able to completely understand them and follow them. It's definitely going to be an interesting term, that's for sure.
- [49:30]
C
Yeah, it really is. And I think that we're going to see a lot more on Trump and his various lawless actions. But I don't know. I still have hope that the Supreme Court can, in a non emergency context, explain itself in ways that seem like legal and reasonable disagreement rather than exercise of power.
- [50:01]
B
Well, thank you so much for, for being here, Jeannie.
- [50:03]
C
Thanks for having me.
- [50:09]
B
Jeannie. Sue Gerson is a contributing writer at the New Yorker and a professor at Harvard Law School. You can find her writing@newyorker.com this has been the Political Scene from the New Yorker. I'm Tyler Foggitt. This episode was produced by John Lamay with mixing by Mike Kutchman and engineering by Pran Bandy. Our executive producer is Stephen Valentino. Chris Bannon is Connie Nass, head of Global Audio. Our theme music is by Allison Layton Brown. Thanks so much for listening, and we'll see you next Wednesday.
- [50:49]
E
I'm Katie Drummond. I'm Wired's global editorial director.
- [50:52]
F
I'm Michael Colory, Wired's director of consumer, tech and Culture.
- [50:56]
B
And I'm Lauren Good. I'm a senior correspondent at Wired. And our show, Uncanny Valley is about the people, power and influence of Silicon Valley.
- [51:04]
E
And right now, Silicon Valley and Washington have never been more intertwined. So each week, we get together to talk about a big story, often at the intersection of tech and politics.
- [51:14]
F
Right. So whether we're talking about Trump, Coin Doge, or Elon Musk, we will always explain how the Silicon Valley forces are.
- [51:22]
B
Affecting Washington and how they affect you.
- [51:25]
E
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