For the last three years, Americans have relied on the judiciary to serve as a guardrail against a president who flouts norms and laws in an effort to enact a radically right-wing and self-serving agenda. In matters relating to immigration, refugees, trade and foreign policy, judges appointed by both Democratic and Republican presidents have often thwarted the president’s desire to act unilaterally. Now we are counting on them to help expose presidential abuses of power.
As the House of Representatives conducts an impeachment inquiry into the president’s actions, it will rely on the judiciary to enforce subpoenas requesting information and testimony. Analysts have suggested that courts will be more likely to fast-track these requests now that impeachment is on the table.
I wish I were more confident that would be the case.
Although state and federal courts have blunted the Trump administration’s more aggressive actions, in many instances the brakes on presidential ambitions have been only temporary. Among the cases that have made it to the Supreme Court, President Trump’s 5-4 conservative majority has generally backed him up. For example, the third attempt to impose a ban on Muslims entering the country provided a fig leaf sufficient for the conservative justices to approve it, although evidence indicates that the promised waiver for certain applicants is merely “window dressing” for the ban, and rarely granted, as liberal Justices Stephen Breyer and Sonia Sotomayor earlier suggested would be the case.
The conservative justices of the Supreme Court blandly state that they are applying the law, indifferent to political beliefs or consequences, on their way to supporting the president’s extraordinary actions. One exception to the Supreme Court’s willingness to uphold executive power was in the case of the Trump administration’s attempt to add a citizenship question to the U.S. census. And that only failed because the discovery of documents proving that it was a Republican scheme to ensure an undercount that would be “advantageous to Republicans and non-Hispanic whites” was too egregious to ignore. Now, as President Trump faces impeachment, will the justices determine that executive privilege allows the president and his advisers to openly defy congressional oversight?
Senate Majority Leader Mitch McConnell, a Kentucky Republican, boasts the most about his refashioning of the federal judiciary, including the Supreme Court. Mr. Trump has stocked the federal courts with over 150 judges, many of them young, including several rated “unqualified” by the American Bar Association. More than two dozen Trump judicial nominees have refused in hearings before the Senate to accept as settled law Brown vs. Board of Education, the most fundamental of Supreme Court rulings, and many of these new judges show a chilling willingness to uphold executive power whatever the legal precedent.
Attorney General William Barr’s belief in the unitary executive and the apparent willingness of the Supreme Court to support presidential actions under the most questionable circumstances echo the maxim cited by proponents of divine right monarchy in the early modern era: The king’s will has the force of law. If he knows the courts will always be on his side, the president is effectively above the law.
In the past few weeks, our polity has entered a new and rapidly-changing phase. It may be that Congress’ willingness, at long last, to start an impeachment inquiry will mean the re-establishment of the guardrails to our democracy; at the moment, public opinion seems to support this investigation. Perhaps the judiciary will follow the precedent set during the Watergate hearings that the president cannot claim executive privilege to shield lawless behavior. I sincerely hope so. Along with Congress, the courts serve as a counterbalance to the immense power the modern president has. Historians — and the American public — will be watching to see how our judiciary responds at this pivotal moment.
Christine Adams (firstname.lastname@example.org) is a professor of history at St. Mary’s College of Maryland.