How progressive critics paved the way for Trump’s attack on judicial supremacy

One of the key axioms of politics in our, and any other, era is that nothing lasts forever. Today’s seemingly new political arguments, almost certainly, will find their way into an opponent’s arsenal.

Evidence of that axiom is abundant. Where once Republicans were rapidly anti-Russia and anti-Putin, today they favor accommodation. Where once Democrats were suspicious of free trade, today they embrace it as part of their criticism of the president’s protectionism.

The most consequential of those inversions involves attitudes toward courts and judges. Where once progressive critics called the rule of law a myth and worked to expose the politics of law, today the president mobilizes that argument to accuse judges of being driven by partisan motivations.  

In the first Trump administration, as the president stacked the Supreme Court and the federal judiciary with MAGA-allied judges, progressives eagerly denounced those judges and what they labelled “judicial supremacy.” They argued that the authority to interpret the Constitution was not lodged solely in the judicial branch. It was, they contended, also the work of the other branches, and the American people themselves, to say what the law is. Now, they are appalled when members of the Trump Administration take up those arguments and offer constitutional arguments of their own.

Before saying more about the source of attacks on the courts and positions now being appropriated by the Trump administration, let me cite a few examples of its escalating critiques of judicial supremacy.

On May 20, Secretary of State Marco Rubio delivered his own rendition of the powers and jurisdiction of the federal courts. Testifying before the Senate Foreign Relations Committee about the handling of the Kilmar Abrego Garcia deportation case, and the administration’s reluctance to “facilitate” his return, Rubio insisted that he does not have to obey court orders when they touch on the foreign policy of the United States.

“There is,” Rubio said, “a division in our government between the federal branch and the judicial branch. No judge, and the judicial branch, cannot tell me or the president how to conduct foreign policy.” The Secretary of State insisted that “No judge can tell how I have to outreach to a foreign partner or what I need to say to them. And if I do reach to that foreign partner and talk to them, I am under no obligation to share that with the judiciary branch.”

Rubio is not the only one in the administration to act as if they get to define what the Constitution means or what authority courts have. Two months ago, Attorney General Pam Bondi claimed Federal District Judge James Boasberg, who, as NBC News noted “is presiding over the case involving the administration’s use of the rarely invoked Alien Enemies Act to deport what officials claim are gang members to El Salvador” was “trying to control our entire foreign policy,” and that under the Constitution, he “cannot do it.”

And then there is the recent insistence of White House staffer Stephen Miller and Homeland Security Secretary Kristi Noem that the president has the right to suspend the privilege of the writ of habeas corpus. 

Some might call these comments unconstitutional or anti-constitutional, but I suspect they would say that they have as much right to interpret the Constitution as the judicial branch. That is the position of conservative allies of the administration. 

Adrian Vermeule, for example, Professor of Law at Harvard, argues that the law “is to a large degree what the President and the agencies say it is.” And “The President, as a key figure in the republic, has a responsibility to interpret the Constitution in a way that promotes the common good and effective governance.” 

This brings us back to the fact that arguments made with the goal of advancing one political program may be flipped and turned to another purpose. It was not so long ago that progressives chaffing under the rulings of the Roberts Court called for the same kind of diffusion of the authority to interpret the Constitution that we are now seeing from the Trump Administration. 

In September 2020, New York Times columnist Jamelle Bouie quoted with approval the following: “’The judiciary is not the sole guardian of our constitutional inheritance and interpretive authority under the Constitution has varied over time.’” In his own voice, he said: “(I)f protecting the right of the people to govern for themselves means curbing judicial power and the Supreme Court’s claim to judicial supremacy, then Democrats should act without hesitation.”

Twenty years earlier, two progressive constitutional law scholars reacted to an increasingly conservative Supreme Court’s erosion of the Warren Court’s pro-criminal defendant Miranda v. Arizona decision  by calling for what they called “shared constitutional experimentation.”  As they put it, “Because constitutional meaning is so wrapped up in broader questions of governance, constitutional interpretation should be a shared endeavor among (at the least) all the branches of the national, state, and local governments. Each branch brings to the process both a constitutional role and a set of institutional advantages….”  

A few years earlier, another law professor argued that “competition and debate among the branches concerning important constitutional issues may well promote the kind of public dialogue that would lead to adoption of constructive constitutional approaches while enhancing respect for the fundamental values inherent in constitutionalism.”

One final example is drawn from the work of two prominent, progressive constitutional law scholars, Yale’s Robert Post and Reva Siegel. They observe that it would “be a fundamental mistake to define constitutional law in ways that force nonjudicial actors regularly to choose between obeying constitutional law and fulfilling what they regard as their constitutional obligations.”

Trump administration officials would likely agree. They might claim to be engaged in the very form of constitutional interpretation and dialogue that Bouie and others on the left have held out as a healthy and welcome. Or, perhaps more accurately, they may be owning the libs by cynically using their arguments to secure the administration’s own political purposes.

Whatever their motive, using the tools of progressive constitutional scholars, Trump and his colleagues are creating what Princeton’s Kim Lane Scheppele labels a “counter-constitution, an alternative constitutional reality proposed in place of a current constitution.” 

That is why, if the Constitution survives this moment, we should be cautious about calling for the dismantling of the courts’ ultimate authority to advance the political cause of the moment. Supreme Court Justice John Marshall got it right when, more than two centuries ago, he wrote, “It is emphatically the duty of the Judicial Department to say what the law is.”  

All of this is a reminder that in a constitutional republic, officials, citizens, and commentators need to take a long view and think not just of what will advance their immediate interest. Prudence requires considering what things would look like if, and when, their opponents come to power. 

Patience and foresight are underappreciated, but indispensable virtues of constitutional government.