Can Judicial Independence Outlast Four More Years of Trump?

(Bloomberg Opinion) -- In nearly four years in office, President Donald Trump has challenged the independence of the judicial branch more than any other president. He's accused judges of being “Obama judges” or “Mexican judges.” When he's been investigated for corruption or obstruction of justice, he's routinely portrayed himself as above the law. He's directed his administration to issue a spate of unlawful executive orders. With the November election looming, it's a good time to ask: Can the legitimacy of the federal judiciary survive another four years of this president?

There are reasons to hope that it could. Although Trump has named numerous district court and appellate judges and two Supreme Court justices, the courts have nevertheless mostly held the line against his efforts to subvert the rule of law.

Indeed, in the recent Supreme Court term, the justices did better than that. Majorities blocked Trump from rescinding DACA and held that the New York district attorney could subpoena his business records. The verdict on the courts' ability to maintain independence over the last four years is mainly positive.

Yet there are also reasons to worry. If Trump is given another four years and a Republican Senate, he will get to name a lot more lower court judges. And barring a medical miracle, he would very likely get to replace Justice Ruth Bader Ginsburg, who is 87 and suffering from a recurrence of cancer. He might even get a chance to nominate a successor to Justice Stephen Breyer, now 81.

Even one such appointment would give Trump the opportunity to replace a liberal with a conservative, and overcome Chief Justice John Roberts's power as the court's Trump-checking swing voter. That could potentially mean the end of the judiciary's willingness and capacity to stand up to the president. Up until now, the Trump administration has lost a huge number of cases, mostly in the lower courts, on issues from immigration to environmental regulation to sanctuary cities. 

It's true that version 3.0 of Trump's Muslim travel ban did squeak past the Supreme Court when Chief Justice John Roberts provided the deciding fifth vote to uphold it in the 2018 Trump v. Hawaii case. That decision was deeply unjust. It continues to be a stain on Roberts's record, even as he has shifted hard to reining in Trump's over-reach. In her dissent, Justice Sonia Sotomayor compared it to the notorious Korematsu decision, upholding the World War II-era internment of Japanese Americans. She wasn't wrong.

Yet it is at least possible to say that before the Supreme Court ignominiously approved the ban, it went through significant revisions as a result of lower court opinions that rendered it less offensive to basic constitutional principles that it was at the beginning.

And since then, Roberts has changed his approach — probably because he realizes that if he doesn't stand up to Trump, the results may be permanently disastrous to judicial independence. In addition to Roberts's DACA decision this year, he also blocked Trump from putting a citizenship question on the census, something that would have had major consequences for American democracy for at least a decade.

And Roberts hasn't always had to act without the backing of the other conservatives. In the New York subpoena case, Trump v. Vance, the two Trump appointees, justices Brett Kavanaugh and Neil Gorsuch, concurred with Roberts. Only justices Clarence Thomas and Samuel Alito dissented, leaving the tally for the case at 7-2. This was a landmark decision holding that the president is not a king and is not above the rule of law.

However, Trump's re-election would almost certainly upset the tenuous balance of power at the court. It's true that Trump's two appointees, Gorsuch and Kavanaugh, haven't voted in lockstep with the positions advocated by the Trump administration. So it's within the realm of possibility that, even if the Republicans got another seat on the court, these Federalist Society conservatives would stand for the rule of law and resist Trumpian efforts to break it. Gorsuch's textualism can sometimes lead him to liberal results, as in the LGBTQ anti-discrimination and Creek Nation cases. But a conservative majority further solidified by Trump's re-election would likely be prepared to give the president some major victories.

There is reason to be afraid of what would happen to the judiciary in a second Trump term. Trump's judges would get generational control over the lower courts. And he might stop relying on the Federalist Society, now that he sees its preferred nominees are willing to buck him. The Federalist Society breeds conservatives who are often hardline, but aren't necessarily Trump Republicans, and who typically believe deeply in the rule of law.

The upshot is that democracy matters for the composition of the judiciary. If Trump is re-elected and the Senate remains Republican, voters will have only ourselves to blame when the courts tilt further away from the rule of law. The courts have done better than expected during Trump's first term. It would be a bad idea to rely on them to save the Republic should the people hand it over to Trump for four more years.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2020 Bloomberg L.P.