Will the US Supreme Court stand up to Trump?

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0:37Here's America's Supreme Court. A, a body of disinterested jurists doing their job as best they can. B, a bunch of lackeys doing the work of President Trump. Or C, somewhere in between. The court is about to announce a huge range of decisions that will affect the ability of Donald Trump's White House to do what it wants to do in his second term. At the moment, it is fair to say that most of the decisions there have been have been very much in favor of him.

1:07Anthony Zurcher:The Supreme Court handed the Trump administration two victories today in cases involving Doge, including giving it access to social security systems containing personal data on millions of Americans. And the Supreme Court's allowing the Trump administration to slash hundreds of millions of dollars in research funding in its push to cut federal diversity, equity and inclusion efforts. A six to three Supreme Court rules the Trump administration's ban on transgender troops from the U.S. military can take effect. Now, let's start with this USAID ruling. As you heard from my colleague, Melinda Rivera, it's a pretty big win for the Trump administration.

1:42Anthony Zurcher:What do you make of it? Griff, it is a fantastic win for the Trump administration. So late yesterday, we got another decision. They went ahead and agreed with President Trump having the authority to terminate two appointees on behalf of President Joe Biden. And the reaction I was picking up online when this decision came across is that there was a surprise that they allowed this to happen. It was an overwhelming... So you get the picture. And here's the question. Is this Supreme Court ever going to stand up to Donald Trump or is it set on expanding his power? Welcome to AmeriCast.

2:19americast americast from bbc news you hear that sound oh i think when i hear that sound it reminds me of money nicolas maduro he effed around and he found out this is a big cover-up and this administration is engaged in it this guy has trump derangement syndrome i have four words for you

2:39Anthony Zurcher:Turn the volume up!

3:09deliberations, wouldn't we? And that, I suppose, is the point of the Supreme Court. It is hugely important and never more so when there is a president who is keen on doing things and stretching the limits of his own power. So a lot of people interested in this and a lot of AmeriCasters have written to us and asked us to take an interest in it. Just an example, Anthony, if I could kick it off with Ed Stranger, who's written from London and asked this, I'm writing to request more discussion and analysis around the potential impact of the Supreme Court in impacting the Trump administration's agenda in coming years, this body surely has to start having a say in all manner of the administration's policies and some in-depth analysis of this currently silent branch of government would be interesting to hear.

3:58Reasonable points, Anthony.

4:01Anthony Zurcher:Absolutely. We have heard the Supreme Court have some say. They have started to have a say in that montage you played there. The Supreme Court has weighed in on a lot of these big issues involving Trump and executive power, but only tentatively so. A lot of those headlines you heard were the Supreme Court deciding not to step in and stop Trump's policies from going into effect. They didn't definitively say whether those were legal or not, whether Trump could do them or not. And so there are these cases that are still out there now that we're waiting on in the coming months that are going to say exactly how much power Trump has on things like immigration, on things like presidential appointments, and perhaps most importantly, on Donald Trump's massive expansion of presidential power in the subject of trade and imposing tariffs on foreign nations.

4:51Anthony Zurcher:So those are still yet to be definitively decided. And when we say definitively decided, as you point out, Justin, the Supreme Court, when they issue a decision, there's no appeal. It's final. They are the ones who pass judgment on whether laws are constitutional, whether laws are being properly applied. And these nine justices, if five of them agree, that is the final word on the matter. Yeah, nine justices, Anthony, but of course, a big conservative majority at the moment, which has not always been the case, but is the case at the moment, including Supreme Court justices that Donald Trump himself has appointed.

5:28And that leads people to wonder about the not just the fairness of the Supreme Court, but also in a sense, its legitimacy. And particularly Democrats who are hacked off about various decisions that have been made, and I suppose the big one, the end of Roe versus Wade, have this sense that the Supreme Court is now the enemy. It's fair to say, isn't it, that the Supreme Court and discussions about the Supreme Court, never mind what they do about the Trump administration's various efforts to do various things. The Supreme Court is in a sense in play in American politics in a way that hasn't been for a bit.

6:09Anthony Zurcher:I think maybe going back a few decades, most people didn't give a whole lot of thought to the Supreme Court. They probably couldn't pick a justice out walking down the street or standing in line next to them in the grocery store if Supreme Court justices do go grocery shopping or they have someone do it for them. But they were relatively anonymous. Obviously, people who pay attention to the big cases do know that the Supreme Court has power, but it was always the least understood branch of the federal government. That has changed. As you rightly point out, this Supreme Court with its six to three conservative majority, three of those conservative justices appointed by Donald Trump himself in his first term, They have in the past five or six years really dramatically reshaped the lay of the land as far as the law goes in this country.

7:00Anthony Zurcher:They have overturned precedents that had been established sometimes for half a century or more. precedents, as you mentioned, on abortion, on racial preferences in higher education and how you could take that into account, on the power of federal agencies to issue regulations without court oversight, on all of these different environmental regulations, on gun control and handgun ownership rights. I mean, all of these things have been pretty stark in the way they have changed course in the past few years. And really, I think it's the most conservative Supreme Court that America has had in at least 75 years.

7:43Anthony Zurcher:And they are flexing their muscle time and time again. And the other thing, and we'll talk about this with our guest, former Supreme Court clerk in just a second, is that in doing that, they are following a tradition, which is that the Supreme Court does change America. You think back to Brown versus the Board of Education, that decision back in the 1950s that, in a sense, pushed open the doors for the whole civil rights movement. And that was the court making a decision, wasn't it? A decision that changed America in one specific instance, the business of education being mixed and not separate as it had been, particularly in the South until then.

8:27But a wider situation as well, a wider sense of American change coming from the court. And I suppose you could say, couldn't you, that that's just what we're seeing now. Right.

8:40Anthony Zurcher:There have been moments where the Supreme Court has stepped in and issued landmark decisions that really do set the framework for how Americans live. They affect our everyday lives. Brown versus Board of Education is a good one. Separate is inherently unequal, essentially ending racial segregation in American schools. If you go back on the flip side, something like Plessy v. Ferguson, which the Supreme Court decided in the 1850s that slaves were property and they didn't have any kind of rights and redress in the courts, that was an incredibly impactful Supreme Court decision on the flip side. I mean, it led to essentially directly to the to the Civil War.

9:23Anthony Zurcher:And there have been decisions on things like abortion, on freedom of the press. New York Times v. Sullivan protecting major newspapers from lawsuits when they when they're reporting. I mean, that was a landmark case or cases on access to birth control. There are cases involving individual liberties and right to protest. They're ones that protect individuals who have been arrested. You remember the Miranda case, which said that individuals had to be informed of their rights after they've been arrested. You can go through and see moments where the Supreme Court really has issued decisions that directly impact people's lives.

10:04Anthony Zurcher:There are other ones that maybe you don't feel quite as much that still have significant impact. One's about how government operates, how government regulates the rights of corporations and businesses and how they interact. But it is impossible to overstate how important the Supreme Court has been throughout America's history. And talking about those decisions about how government operates, that brings us bang up to date in this decision that the court has yet to make about tariffs. And it's interesting, isn't it? Because I think people thought, didn't they, that it was going to come quite quickly and it hasn't.

10:42And I wonder if we can or should read anything into that.

10:46Anthony Zurcher:Yeah, I think it is really interesting that we haven't seen the court weigh in yet. They took that case on an expedited basis. They sped it up. They had early oral arguments. They stepped in before one appellate court had a chance to rule and before another appellate court had a chance to review its earlier decision. So it accelerated the whole process to get to this under pressure from a lot of these businesses that were telling the court that their businesses were being impacted adversely by these tariffs. And they needed to get some sort of certainty that these were legal as quickly as possible.

11:19Anthony Zurcher:And the court appeared to agree. So they they agreed to hear this case. They had the oral arguments, and now it's been kind of a waiting game where we've had a couple of instances where the court has announced that they're going to be releasing new opinions, and we all kind of gather around to see if this is the trade case, and then it's not. So it's always a matter of reading tea leaves because this court does not tip its hand very, very often. But it is interesting that they seem to be taking their merry time in releasing this decision. And someone who wants it to go his way is the president himself.

11:53And it's interesting. He's very open about that. Let's listen to him. This is actually back in November, talking to reporters about the importance of this tariff decision. What is your plan if they end up making a decision that's not in your favor? Well, I'd rather discuss that later. I hope we're going to win that case. I think it's one of the most important cases in the history of our country. so much evolves around tariffs. It would be somewhat catastrophic for our country, I have to be honest with you. I don't wanna get too much involved, but what we've done -

12:29Anthony Zurcher:So Trump there talking about how important this case is, and it centers around Donald Trump's trade authority, and whether the law he's citing, an Emergency Powers Economic Powers Act from the 1970s that doesn't even mention tariffs. It mentions regulating trade, whether that has given the president the power to put on tariffs on any country, on any amount, at any time, whenever he wants. And I was listening to those oral arguments that the court held last year on them. And a lot of the justices, even some of the conservative ones, seemed skeptical that the president had this kind of power. The Constitution says that Congress is the one that can levy tariffs.

13:09Anthony Zurcher:And they questioned whether Congress clearly delegated to the president all of its trade authority, essentially. So I think Donald Trump is rightfully a little nervous about this case. And it could very well cut against him. But we just don't know yet, because we haven't gotten the decision. Okay, this is a good moment to bring in our guest, Professor Kate Shaw is joining us. She's a former Supreme Court clerk herself. She's also professor of Law Now at the University of Pennsylvania Law School and co-host of the podcast Strict Scrutiny, Kate, hello. Hello. Thank you for having me. Well, thank you for coming on.

13:45Anthony, you were reminding us recently that there are occasions in the Supreme Court's quite recent history where justices have gone rogue, as it were. So they've been put in by a president who was confident that they would do X, Y, or Zed, his bidding, as it were. And actually, they haven't. I can't remember what the examples were you gave to remind us of who the people are you came up with, who've actually not done the bidding that it was thought they were going to do.

14:16Anthony Zurcher:Right. If you go back to the 80s and 90s, Anthony Kennedy and Justice Souter both were appointed by conservatives and then ended up being more liberal. But even if you look at John Roberts, who was appointed by George W. Bush, he ended up ruling in favor of upholding Obamacare, which was a bit of a surprise. And I think John Roberts, everyone would say, was conservative. But there have been instances where some of these justices have broken against the views of the presidents who appointed them. So it's not totally without any kind of precedent, although it seems like, and I don't know if you Do you agree, Kate?

14:56Anthony Zurcher:It seems like more recently the conservatives on the court have been more reliably conservative. We don't see that kind of apostasy, I suppose you'd call it, from these justices that you had in the past. I basically do agree with that. I think that there are lots of historical examples of justices disappointing sometimes in very significant ways the expectations of the presidents who appointed them. But I think Anthony's right that the more recent appointees to the court have been so thoroughly vetted and their views so entirely known by the presidents who appoint them that there are fewer and fewer of these kind of defections or kind of upending of expectations.

15:34Although, you know, I think that it's a little early to say for sure whether someone like Justice Amy Coney Barrett might come to disappoint in certain respects. Right.

15:46Anthony Zurcher:And she was somewhat skeptical in another big case of presidential power, which was the Lisa Cook case, the firing of or Trump's attempts to fire Lisa Cook, the Federal Reserve governor for what he said was financial malfeasance. That was another interesting case and one that that is floating out there that we haven't heard a decision on yet, but but could define the scope of Trump's power. How do you think that one's going to break? So this is another, in addition to the tariffs case, enormously important case about presidential power. Here, the power to fire a high-ranking government official, a Fed governor in the case of Lisa Cook.

16:23So we have Supreme Court precedent stretching back nearly a century that says that Congress can create agencies in the federal government and give the heads of those agencies some protection against the president's just firing at will those officials. And yet the president basically immediately upon assuming power for the second time fired dozens of officials who have these statutory protections against being summarily fired by the president. And the justices seemed nervous about giving Trump the power to summarily fire the upend global kind of economy in certain ways. But obviously that has worldwide potential ripple effects.

16:59And so the justices, I think, are nervous about owning that kind of chaos and are going to try to find a way to rule against Trump there. Yeah. Owning the chaos, but also massively extending presidential power. And, of course, not just for this president. And that's why we ought to listen to him, actually. So the chairman of the Fed, Jerome Powell, was criticised, wasn't he, for actually going along to hear the oral arguments in the case. But his response was really interesting and absolutely underlines why this is so important. Let's just listen to him for a second.

17:30Anthony Zurcher:I will tell you why I attended. I would say that that case is perhaps the most important legal case in the Fed's 113 year history. and as I thought about it, I thought it might be hard to explain why I didn't attend. In addition, Paul Volcker went to a Supreme Court case famously in, I guess, 1985 or so. So it's precedented and I thought it was an appropriate thing and I did it. I mean, the fundamental point here, sort of stripped of all the legal arguments and indeed of the individual case as well, is this court, Kate, intending to give this president and then future presidents a lot more power than they've had in the last, I don't know, 30, 40, 50 years.

18:19In fact, since the Second World War. Is that where we are? It sure feels like it. And, you know, since the Second World War, I'm not even sure that I think I might suggest that one relevant kind of point in time to look at is post-Watergate. So after the resignation of President Nixon in 1974, I mean, Nixon abused his power in all kinds of ways. I don't think that's a controversial statement. And in response, after he resigned facing essentially certain impeachment and removal, we passed a lot of laws that tried to reform certain aspects of the presidency and to create independence and checks on presidential power.

18:54And I don't think since Nixon we've had sort of a president who has sought to assert this kind of muscular vision of executive authority that we are seeing President Trump assert. And I think in lots of respects, his vision of executive authority goes way beyond anything we saw under President Nixon. OK, let's turn to birthright citizenship. Another massive decision the court has got to make. So at the moment, if you're born in the United States, you're an American citizen, a full American citizen. I know that very well because my daughter, who I quite often mention on this podcast, is an American citizen.

19:25She's also a great fan of Bad Bunny. So she's probably not in Donald Trump's good books. Possibly for that reason, he wants to get rid of birthright citizenship. No, I'm joking. He's got other reasons as well. And there is a weird thing going on here, isn't there? Which is that right at the start, Kate, everyone was saying he's not going to manage to do that. It's in the Constitution. It's an amendment. It's the 14th Amendment. He's not going to be able to do that. The justices won't go there. And now, actually, as the decision time gets closer, is it fair to say people are less sure that they are going to rule against him necessarily?

20:04I still feel reasonably confident. I would say quite confident that they're going to rule against him. This claim that he has the unilateral authority to essentially rewrite the Constitution is such an outlandish claim that it's hard to imagine it getting more than zero votes on this Supreme Court. And yet I think you're right that, yeah, I suppose you can find tiny little pieces of evidence and if you stitch them all together, you can make an argument. I think it's a very, very weak argument. But you have seen a number of kind of scholarly efforts to do that, to try to kind of suggest that this is subject to some active debate in sort of scholarship and among historians, which I think is just not true.

20:42I don't see how they get to finding that the president could unilaterally do this because there are – in addition to the constitution's clear language that all persons born or naturalized are citizens of the United States, there are statutes passed by Congress that also confer citizenship on people born here regardless of the status of their parents. And a president cannot unilaterally override statutes. And so even if Congress could make this change, it is crystal clear to me that the president couldn't. And so I come back to feeling reasonably confident that at most two justices would vote in favor of Trump here.

21:17But I don't think that anything is out of the question with this court.

21:21Anthony Zurcher:And there's a Supreme Court case dating back over 100 years that's precedent, pretty direct precedent on this as well. So they'd have to reverse that in order to rule in favor of getting rid of birthright citizenship, right? Absolutely. So you have several other Supreme Court cases that just kind of seem to take as a given this notion of birthright citizenship. But you also have not just a Supreme Court case but many statutes passed by Congress. I cannot emphasize enough that it has never been very seriously or even seriously at all questioned, not just because of one Supreme Court opinion but because of all of the constitutional actors in our system that this is kind of clear as day.