The upcoming era poses significant challenges for the rule of law in the United States.
Donald Trump demonstrates a distinct disregard for the rule of law while simultaneously demanding that only those individuals he selects adhere to his personal interpretation of legal standards.
This troubling dynamic becomes especially concerning when it involves the President of the United States espousing such views. The detrimental impact of these attitudes was evident during Trump’s previous administration.
Compounding this issue is the disheartening stance taken by the conservative majority of the U.S. Supreme Court, led by Chief Justice John Roberts. They have effectively communicated that Trump enjoys immunity from criminal liability for many of his actions taken while in office. This sets the stage for a precarious moment now that Trump is again poised for a return to power. Justice Amy Coney Barrett’s viewpoint diverged from the extreme positions adopted by the five male justices, and Justice Sonia Sotomayor recorded her dissent, voicing the opposition from herself and Justices Elena Kagan and Ketanji Brown Jackson. Nevertheless, the ruling by the five male justices has ushered in an unsettling period.
Roberts has consistently leaned toward decisions that favor corporate interests over voting rights. However, during the first Trump administration, he played a key role in moderating some of the more extreme policies, including milestone rulings that partially blocked an earlier rendition of the travel ban and prevented the addition of a citizenship question to the Census.
Additionally, Roberts authored the majority opinion that restricted the application of a criminal obstruction statute in cases related to the January 6 prosecutions. Barrett dissented alongside Sotomayor and Kagan in this instance. In a notable case involving the disqualification clause of the Fourteenth Amendment pertaining to “insurrection,” Roberts aligned with the majority, overstepping the positions of the Democratic appointees, including Barrett.
Should the Republicans maintain control of the House, institutional constraints on Trump’s authority could remain weak. While there are many complex personalities involved in the House and Senate that could complicate Trump’s strategies, the current Supreme Court will likely offer minimal institutional checks on his power. The potential for challenging Trump through conservative legal arguments may provide avenues for resistance. Such efforts would not signify a surrender of a progressive vision; rather, they represent a pragmatic approach to utilize effective legal frameworks. Simultaneously, there should be vigorous advocacy for the advancement of liberal and progressive values in lower courts and dissenting opinions.
The justices, particularly the Democratic appointees, must present a united front and remain resolute in the face of possible injustices. Their voices will be indispensable in the event the court makes erroneous judgments, especially in cases involving Trump’s potentially unlawful actions.
Justice Barrett has emerged as the most skeptical of Trump among the Republican appointees. Her reservations could stem from concerns regarding executive power or the aftermath of January 6, but her past rulings suggest a willingness to diverge from the majority of her Republican colleagues. As the only Republican appointee on the court without prior service in a Republican administration, Barrett’s skepticism will likely face scrutiny in the years to come.
If Barrett continues her trend of skepticism, Chief Justice Roberts may find himself in a pivotal position when critical challenges to Trump’s actions arise before the court. Given his recent record, the outlook on his decisions remains uncertain. Roberts may need to reevaluate his approach to ensure that the expanding Trump administration does not start to believe it is beyond judicial accountability. The “energetic executive” concept endorsed by Roberts last summer now demands that he prepares to resist any unlawful excesses from Trump’s forthcoming administration.
For Justice Brett Kavanaugh, although he has occasionally aligned with Roberts and Barrett, it appears unlikely that he will actively curb executive authority unless there is an egregious violation of established rules. Kavanaugh must contemplate where he might draw the boundary lines and be poised to assert these limits when Trump’s government overextends its reach.
Based on previous actions, Justices Clarence Thomas, Sam Alito, and Neil Gorsuch are not expected to mount challenges against the Trump administration except in isolated, individualized instances.
State attorneys general in Democratic-led administrations will need to escalate efforts to bring forth legal challenges, especially if Republicans control both the House and Senate. Beyond legal action, they must also assert their role within the Supreme Court. While Texas and Florida historically led Republican efforts, Democrats can leverage influential states like California and New York. One significant responsibility for these states will be to clearly articulate the stakes to both the justices and the broader American public as necessary. Importantly, significant contributions to the court can come from smaller states, as demonstrated by Alabama Solicitor General Edmund LaCour’s repeated appearances before the justices in recent terms.
To safeguard the democratic process, congressional Democrats, advocacy organizations, and any remaining Republican voices willing to speak out must mobilize both publicly and directly to the court.
Public pressure will be critical in holding the Supreme Court accountable in the coming years. As demonstrated previously, the court is not impervious to criticism. If the court strays from its constitutional duties, legal professionals, academics, and citizens must vocally demand accountability and recognition of their concerns.
This applies directly to Trump’s expected actions, and similarly to Congress, the Supreme Court must not be overlooked in the accountability framework. All individuals and groups planning responses to the incoming administration should keep this in mind.
This Sunday, here are the tabs I’m closing:
**Interview with Constitutional Law Expert, Dr. Emily Turner**
**Interviewer:** Thank you for joining us today, Dr. Turner. The opinion piece discusses the challenges posed by former President Trump’s relationship with the rule of law, especially if he were to return to power. Can you elaborate on what these challenges might look like?
**Dr. Turner:** Absolutely. The challenges largely revolve around a potential disregard for judicial authority and the rule of law. Trump’s tendency to favor a personal interpretation of legal standards raises concerns about how his administration would interact with established legal norms. If he returns to the presidency, we could see a significant erosion of institutional checks and balances, particularly from a Supreme Court that may be less inclined to hold him accountable for unlawful actions.
**Interviewer:** The article mentions that the conservative majority of the Supreme Court has indicated Trump enjoys immunity from certain criminal liabilities. How does that impact the judicial system as a whole?
**Dr. Turner:** It creates a precarious situation. If the Supreme Court effectively grants immunity to a sitting president for actions taken while in office, it undermines the principle that no one is above the law. This sets a dangerous precedent, as it suggests that any future president could act with impunity, which could erode public trust in the judicial system and embolden executive overreach.
**Interviewer:** What are your thoughts on Chief Justice Roberts’ role in all of this? The piece suggests he may need to re-evaluate his position regarding Trump’s actions if he returns.
**Dr. Turner:** Chief Justice Roberts is in a unique position. Historically, he has attempted to balance the Court’s conservative leanings with institutional credibility. However, if Trump’s administration exhibits patterns of lawlessness, Roberts will face immense pressure to assert the court’s authority and prevent erosion of legal standards. The question is whether he’ll be willing to take those steps, especially considering the current political climate.
**Interviewer:** Justice Amy Coney Barrett has been noted for her skepticism towards Trump. How critical is her position on the Court as we move forward?
**Dr. Turner:** Barrett’s skepticism is crucial because it signals that not all conservative justices may align with Trump’s potential overreach. If she maintains her independence, she could play a pivotal role in cases that challenge executive authority. Her perspective as the only Republican justice without prior ties to a Republican administration offers her a unique lens to evaluate Trump’s actions critically.
**Interviewer:** In the context of a potentially weakened Congress, what avenues might exist for resisting executive overreach from a Trump administration?
**Dr. Turner:** Challenges could emerge from within the legal system itself. There is a significant opportunity for dissenting opinions and progressive advocacy in lower courts to push back against executive actions. Engaging conservative legal arguments might also create space for resistance without abandoning progressive values. However, it’s vital for the justices, particularly the Democratic appointees, to collaborate and present a strong united front when it comes to protecting the rule of law.
**Interviewer:** what message would you give to citizens who may be concerned about the future of the rule of law in America?
**Dr. Turner:** It’s essential to remain engaged and informed. Citizens should advocate for accountability, not just within the executive branch but also concerning the judiciary. Supporting candidates and initiatives that prioritize the rule of law and institutional integrity is paramount. Ultimately, active civic participation is crucial in steering the direction of our democracy and ensuring that no one, including the president, operates beyond the confines of the law.
**Interviewer:** Thank you for your insights, Dr. Turner. It’s been a pleasure discussing these important issues with you.
**Dr. Turner:** Thank you for having me.
