The Supreme Court is about to hear cases about whether Congress and Manhattan’s district attorney can subpoena Donald Trump’s tax returns and other financial records. Trump has lost his challenges to the subpoenas repeatedly in the lower courts, and for good reason: his arguments against them are exceedingly weak.
But Trump, a profoundly transactional man who is desperate to keep his tax returns from seeing the light of day before the election, plainly expects the high court’s protection as a reward for packing the federal bench, including the Supreme Court itself, with young right-wing extremists.
If Justice John Roberts and the court’s other right-wing jurists twist the law to do Trump this favor, they will deal a heavy blow to the court’s already compromised legitimacy, and potentially to their own power as well.
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If Trump loses in November, court packing might be his most enduring legacy (apart from mass death).
Trump failed to pass any historic legislation during his first two years in office, while his party controlled both houses of Congress. Indeed, his only significant congressional achievement was signing a tax bill that so ostentatiously favored the very wealthy that it helped Democrats retake the House.
But Trump, together with Senate Majority Leader Mitch McConnell, has succeeded in remaking the federal judiciary, from the Supreme Court on down, by installing a huge number of extraordinarily ideological right-wingers, selected with the integral involvement of the Federalist Society. This has included filling slots McConnell held open during the Obama administration (not the least of them being the Supreme Court seat that opened up with the death of Antonin Scalia).
McConnell reportedly views the court-packing scheme as his chief legacy, and for good reason. While conservatives publicly deride so-called “activist judges,” the Republican Party has relied since the Reagan years on “its” judges to void popular governmental policies, and, most importantly, to oppose democracy itself by selectively impairing voting rights.
Of course, the Supreme Court overtly determined the outcome of one presidential election, in Bush v. Gore; but nearly as consequentially, the Roberts court voided the primary enforcement provisions of the Voting Rights Act in 2015, and in 2019, gave the green light to gerrymandering schemes the GOP has employed to entrench its control of numerous state legislatures, and until last year, the House of Representatives.
Last month, at the behest of the Wisconsin GOP, the Supreme Court forced many voters to choose between being disenfranchised and risking death by voting in person when it voided an order extending the time for the acceptance of absentee ballots, many of which were sent out late. It was all part of a gambit to save the seat of a right-wing judge on Wisconsin’s highest court. Angry Democratic voters showed up at polling places in droves and defeated the GOP incumbent, though some were needlessly infected in the process.
The Supreme Court, and other federal courts dominated by GOP nominees, have also been bulwarks against popular governmental policies disfavored by Republicans and their allies, including by voiding gun safety laws and environmental regulations.
During the last several years, as Trump has failed to enact his policies through legislation, the Supreme Court has stepped into the breach by affording the president wide latitude to unilaterally effectuate his radical agenda items unilaterally.
Most notoriously, the court upheld Trump’s “Muslim ban,” expressly refusing to take into account Trump’s many admissions of his discriminatory purpose, starting with his announcement during the campaign that he would impose a “total and complete shutdown of Muslims entering the United States.”
The court has also repeatedly nullified emergency injunctions issued by lower courts against overreaching presidential actions even before ruling on the merits of challenges to Trump’s policies. For example, the court green-lighted Trump’s defiance of Congress’ refusal to fund his border wall by raiding funds appropriated for other purposes, and permitted Trump to implement rules allowing the government to label immigrants “public charges,” and deny them green cards, simply for accessing aid such as health care and other assistance during periods of extremis.
McConnell and his GOP allies plainly have their sights set beyond Trump’s time in office, and expect that the huge cadre of extraordinarily ideological young judges they are installing to lifetime seats on the federal bench will continue to serve their interests, even if the GOP loses its grip on the government in the near future.
Given that long view, it is unsurprising that McConnell insisted on bringing a Senate chock-full of vulnerable elderly legislators into session in the midst of a raging pandemic to confirm a 37-year-old former McConnell intern, Justin Walker —who recently wrote that the mayor of Louisville had criminalized Easter by applying a stay-at-home order to a “drive in” church service — to the powerful D.C. Circuit Court of Appeals.
But Donald Trump is not one to care much about the future, let alone a future that might not include him. With the political walls closing in on him, Trump’s likely expectation is that “Trump justices,” and other right-leaning jurists, will do his bidding and protect him, the law be damned, is finally coming into open conflict with his party’s goal of maintaining a lasting judicial wall against Democratic policies.
Trump is the only president since Lyndon Johnson whose tax returns have not been disclosed to the public, let alone Congress. He is plainly determined to ensure that it stays that way for as long as possible, and certainly until after the next election.
But the cost to the court of doing Trump’s bidding could be extremely high.
In this regard, one of the few high-profile cases in which the Supreme Court ruled against Trump is notable. Last year, the court effectively prevented the administration’s attempt to add a citizenship question to the census because evidence established the government’s claimed purpose—to further the enforcement of the Voting Rights Act—was fraudulent (or in Roberts’ more diplomatic words, “contrived”). The chief justice was unwilling to openly and notoriously further what amounted to misleading conduct by Trump’s cronies, likely recognizing the risk to the court’s legitimacy could be high.
The cost of enlisting the court in Trump’s legally meritless effort to hide his personal financial records from Congress and law enforcement investigators could be much higher.
As Trump’s most recent Supreme Court appointee, Brett Kavanaugh, observed, the “greatest moments in American judicial history” have been when courts “stood up to the other branches, were not cowed, and enforced the law”—including when the Supreme Court ordered Nixon to turn over the inculpatory tapes that drove him from office. If the Supreme Court is cowed when it faces the current test, it will be the tribunal’s most ignominious moment in decades, and will not soon be forgotten.
This will be particularly true if, as seems increasingly likely, Joe Biden enters the White House next January. It is unlikely that a President Biden would readily accept a Supreme Court setting out to void his policies after the court had bent over backward to protect those of his predecessor. Furthermore, if as seems increasingly possible, Biden takes office with a Democratic majority in the Senate, the Court-packing scheme that Trump and McConnell have counted on as their legacy could be placed in immediate danger.
The size of the Supreme Court, and indeed of the entire federal judiciary, is determined by statute, not by the Constitution. Hence, it is within the power of Congress to increase the size of any court, including the Supreme Court, and likewise within the power of the president and the Senate to confirm any nominee.
The only thing that would stand in the way of a Democratic Congress and president undoing the GOP’s remaking of the courts, including by adding to the members of the Supreme Court, would be political will. FDR was unable to force Congress to take that step, and Biden has ruled it out himself to date. But in the wake of a Supreme Court decision to protect a desperate President Trump from embarrassment, and potential criminal liability, on the eve of an election, such will might be amply available.
Therefore, even if Roberts and every other member of the Supreme Court’s current five-justice conservative majority lack compunctions about sacrificing legal principles to protect Donald Trump, one or more of them may well recognize that doing so could come at a heavy cost to their own power.
