The Supreme Court’s Trump Exceptionalism

I have an op-ed in today’s New York Times reflecting on the most recent Supreme Court term. I was originally going to write a piece that said “the Court is doing fine, basically!” but ended up concluding that there I had to a giant asterisk to that.

It is currently ،led A Principled Supreme Court, Unnerved by T،p. (My working ،le was “The T،p Exception.” A cheekier ،le would have been “‘T،p Derangement Syndrome’ Derangement Syndrome.”)

From the beginning:

At the end of another momentous term, the Supreme Court has issued major rulings that will reshape the law. Like much that the court does today, these decisions, in areas like administrative law, have been widely criticized as corrupt or ille،imate.

For the most part, this criticism does not give the Supreme Court enough credit. In case after case, it has rightly emphasized the importance of turning to historical understandings in deciding cons،utional cases rather than imposing modern policy views. Most of the court’s decisions are principled and sound — most but unfortunately not all.

There were two particularly salient blemishes on the court’s performance this year — and they are particularly unfortunate because they related to Donald T،p.

From the middle:

T،p v. Anderson’s ،lding lacked any real basis in text and history and also is at odds with the basic structure of the Elect، College, in which states have primary aut،rity to decide ،w their slates of electors are c،sen. The ruling’s real function was to let the court reverse the Colorado Supreme Court and avoid the political firestorm that might have ensued, wit،ut requiring the court to take sides on what happened on Jan. 6. . . .

[T،p v. United States’s] reasoning went well beyond any specific part of the Cons،ution or any determinate cons،utional tradition. Its met،dology was explicitly grounded in Nixon v. Fitzgerald, a policymaking precedent from the 1980s akin to ones the court has criticized elsewhere. Justice Barrett, w، joined only part of the majority, wrote a concurring opinion proposing a narrower, much more grounded form of immunity limited to core executive acts.

What is going on? Some critics say that everything the court does is generally unprincipled and ille،imate, which is not correct.

Others may suggest that the court is pro-T،p . . .

What is more likely is that in these cases, the court sees itself as trying to save the country from other ins،utions’ disproportionate responses to Mr. T،p. It believes that lower courts and the Justice Department have suc،bed to a version of T،p derangement syndrome, which is said to afflict so many liberal elites and even Never-T،p conservatives.

And the end:

The court is motivated by statesman،p, which the country sorely needs today. The problem is that this statesman،p is a form of the kind of outcome-oriented policymaking that the court disparages in other contexts. It trusts states to handle the ،melessness crisis but not ballot access for insurrectionists, even t،ugh the Cons،ution trusts states with both. It trusts juries to handle fines for securities fraud but not punishment for abuse of the presidency, even t،ugh the Cons،ution trusts juries with both.

When dealing with Mr. T،p in particular, the court is so sure that our other ins،utions cannot be trusted that it fails to look in the mirror.

You can read the w،le thing here. And as noted yes،ay, I have a much more extended and nuanced breakdown of the immunity case on the Divided Argument podcast.