Supreme Court SLOW-WALKS MASSIVE Trump Agenda Rulings

Added: 2026-05-18

[00:00:00]Welcome to the Court of History. I'm Sidney Blumenthal. The court is now in session.

[00:00:05]Um I'm here with my co-host Sean Wilentz. We're continuing our discussion with Steven Vladeck. We're delighted to have him uh with us uh right now. He is professor of law at the Georgetown University Law Center, author of The Shadow Docket, how the Supreme Court uses stealth rulings to amass power and undermine the Republic. He is CNN Supreme Court analyst and editor and author of One First, a weekly Substack newsletter about the Supreme Court.

[00:00:37]Welcome to the Court of History, Steve.

[00:00:41]Uh we are facing a dramatic last act in this session of the Supreme Court with a lot of June decisions coming up.

[00:00:55]What can you give us as a preview?

[00:01:00]Um wow. Um I think that the top line is that it's going to look, at first blush, like a bit of a mixed bag. Um which is to say, right, the court is going to rule, I think, against President Trump in the birthright citizenship case. Um it's going to rule against him, I'm pretty confident, in the Lisa Cook case. Um it's going to rule for him in Slaughter, the case about the pres- whether the president can fire um members of federal independent agency boards and commissions, even if statutes say you can only fire them for cause. Um and, you know, those I think are going to be among the big federal government cases.

[00:01:39]I think there are a couple of other big ones um about transgender discrimination. Um there's a campaign finance case that's going to be pretty important. There's a case about whether states are allowed to accept um late-arriving mail-in ballots. And I think what we're going to see is we're going to see the the same thing we were talking about before the break where in almost all of these cases, not all of them, but almost all of them, court's going to split ideologically with, you know, I think the Republican appointees in the majority in slaughter and in the transgender discrimination cases and perhaps in the later arriving mail-in ballots case and the campaign finance case. And maybe the only cases where we see some strange bedfellows are the Lisa Cook case, where I think the government's behavior is so outrageous.

[00:02:23]Um and the the Fourth Amendment geofence warrants case, which is sort of an old-school like criminal procedure case that is not typically one that gets the justices sort of sorted into their camps. But I guess a lot of folks are going to look at that outcome and say, "Oh, the court is, you know, this principled independent institution." And I want to say that that is baloney.

[00:02:44]Um and that, you know, the the fact that the Trump administration has brought a couple of cases to the court that are so insane that even this court is going to rule against it says a lot more about the administration to me than it says about the Supreme Court.

[00:02:58]Yeah. Yeah. I mean, birthright citizenship, would you imagine that could you actually be nine zip and look like a great, you know, repudiation of Trump?

[00:03:05]>> Well, you got the two. You you still have Alito.

[00:03:08]>> Well, you might have the two. All right, but but you know, but but still seven to two.

[00:03:10]>> so so Thomas and I I think it depends, Sean, a bit on how it's written cuz I could see a world in which Thomas and Alito want to wax philosophic about the 14th Amendment, but want to do it in a way where they don't look um like they're on the wrong side of history. And so, I could imagine a separate like concurring in the judgment opinion that says the executive order is a violation of the relevant statutes, right? The statutes Congress enacted in 1940 and 1952 that were meant to codify the Supreme Court's 1898 Wong Kim Ark decision. They could say that without breaking a sweat on whether Wong Kim Ark was rightly decided. So, I I if that happens, Sean, I could see it nine nothing. Otherwise, I think seven to two is probably the best bet. Mhm. Yeah.

[00:03:57]Let's look at the mail-in ballot case. I mean, that is purely a political case um that has been brought by the Trump administration. They Trump himself has been fixed on mail-in ballots, although uh he voted himself by mail-in ballot.

[00:04:15]Well, rules for thee, but not for me, Sydney. Yeah, right. Of course. Right.

[00:04:20]Um he's had this idea of and created the falsehood that elections have been stolen through mail-in ballots, that somehow mail-in ballots um disfavor the Republicans. A lot of the Republican senators who are considering the so-called Save Act about voter IDs and so on are don't want it to pass because they understand that um these obstacles will harm their voters as well. On the other hand, the Supreme Court may not be they may be political, but not that sophisticated politically and more ideologically driven to support Trump on this one.

[00:05:06]So, I mean, I guess I think there's a little bit of daylight, right, between the Save Act and the mail-in ballots case, which is called I think it's Watson versus RNC.

[00:05:15]Um And I think the daylight is the Save Act would impose new identification requirements, which I think would be the real obstacle for let's just say lesser intensity voters, right, who who would not perhaps want to expend that much effort to have to vote.

[00:05:33]And that's I think why some Republicans view the Save Act as a ticking time bomb that in 2026 and 2028, you know, it's not crazy to think that the more motivated voters will be Democrats more than Republicans.

[00:05:46]The Watson case, I will just say I think this case is remarkably stupid. Um, and I think that the Supreme Court largely beclowned itself during the oral argument because the case is ostensibly about interpreting a statute. And the whole oral argument was dominated by policy concerns and hypotheticals that the justices apparently were getting from white right-wing media about all kinds of fraud that hasn't ever been documented. Um, the basic argument is this, that when Congress in I don't know, 1843, I don't remember, sometime in the 1840s, um, right, defined election day as the first Tuesday after the first Monday of November, that in that statute Congress necessarily barred states from allowing voters to cast their votes on or before election day, but only to be received thereafter. Um, never mind that we've had military absentee ballots counted this way forever. Never mind that we've had, you know, I think it's 20 some odd states that have at least some context where they allow later arriving mail-in ballots to be counted. And what I think is the most revealing evidence of how stupid this case is is the obvious implications of the argument are that not just later arriving mail-in ballots are unlawful, but early voting is unlawful. Right, if the if the argument is that Congress makes election day and you can only vote on election day, that seems like a problem for early voting, too. And yet the plaintiffs in this case and the lawyers in the Supreme Court like bent over back, oh no, we're not No, no, no, we're not challenging that. Like, there's no logical way to read the statute as only barring later arriving I mean, I don't think it's logical to read this doing either of these things, but, you know, the way they're trying to split the difference, I think, gives up the ghost and should have made this easy. The problem is the oral argument made it sound like there were at least four justices who were sympathetic to this fakakta, you know, statutory interpretation. And once you've got four, I worry about five or six. Yeah, I like your Latin there. Um I actually like that that term be clowning. I'm going to use that verb often but to your credit. I've never heard it before. It's an excellent one.

[00:07:53]I I just want we we just skipped over the Lisa Cook case so quickly. Just very quickly tell you know remind our our listeners what that case is about and why it's likely actually to go against Trump.

[00:08:03]Yeah, I mean so it would help I think if I can take a beat to tie it to the Slaughter case too. So, you know, Lisa Cook is a Democratic appointed member of the Federal Reserve Board of Governors.

[00:08:14]She's a governor on the Federal Reserve.

[00:08:16]And last summer when we had the first sort of flurry of firing cases, one of the reasons why folks like me thought the court would uphold statutes like the four cause removal protection in Slaughter was because there was no principled way to distinguish the Federal Reserve. And so the assumption was the court would never go all the way to embracing the full unitary executive theory cuz it wouldn't want to undermine the independence of the Fed cuz that would have immediate potentially dire economic ramifications.

[00:08:47]Well, not to worry, says the Supreme Court, right? In one of their cryptic orders in one of these emergency applications last summer, the court said, "No, you can go ahead and fire I think in that case it was members of the Merit Systems Protection Board and National Labor Relations Board because the Fed is totally different." And the court wrote two sentences about why the Fed is different that aren't actually accurate, but details.

[00:09:10]Right. Um but what that I think Shawn what that conveyed to everybody was that the independence of the Fed was going to be protected one way or the other. And so that led the administration to basically gin up reasons why they had cause to fire Lisa Cook. So, instead of saying we can fire her without cause, they basically invented this baloney mortgage fraud claim um as a basis for firing her. And you know, I think it was Reuters that did some excellent reporting that quickly basically unraveled um how substantial the charge was. It wasn't. But the administration didn't give Lisa Cook any chance to respond.

[00:09:45]They didn't give her a hearing. And so this led to litigation.

[00:09:50]Federal district court said you can't fire her without a hearing. The DC circuit, the federal appeals court refused to issue a stay, so left her on the board. And the Supreme Court did something weird. It didn't grant the administration's request for a stay. It didn't deny it. It deferred it. Right?

[00:10:05]Pending this oral argument.

[00:10:07]And the oral argument did not go well for the Trump administration. So I I think that the assumption is that the court is going to say something about, you know, process to which Lisa Cook was entitled before she could be fired, which will be a win for Lisa Cook, but compared to slaughter, right? I mean, all that means is that, you know, the Fed is protected.

[00:10:28]And to me, I mean, the academic in me just wants to point out the unitary executive theory makes no sense if there are exceptions. Right. Right.

[00:10:37]Yes. Sort of unitary. It's kind of most of the time unitary, right? Right. The unitary asterisk executive. [laughter] Right. Yeah. You've written a lot about how the court has um essentially created this unitary executive theory. You wrote a law journal article about it.

[00:11:00]Um and you pointed out the whole presidential immunity case.

[00:11:07]But now we're coming down to presidential power in independent agencies and the attempt to crush that whole idea that was has existed for more than 100 years, easily. Um and the court appears like it's going to do that um uh, uphold the unitary executive, to augment um, Trump's power.

[00:11:35]And I would add one other question to pose to you as part of that, which is be careful what you ask for when you're going to lose the presidency the next time.

[00:11:51]Yeah, I mean I I I guess we sort of already know where this is going because what this court basically did a rehearsal of this last summer. And I think Justice Kagan's dissenting opinion in the Wilcox case has this exactly right. I mean, now more than ever, right, when we are seeing on a daily basis exactly why the unitary executive is a terrible idea, um, and why like it is actually deeply dangerous to the effective functioning of our government, let alone the rule of law, to have a president who is subject to no internal constraints within the executive branch. Um, you know, I think it's ironic, Sydney, not just that we're going to upend a hundred years of understanding, but that we're doing it now. Like it's it's basically like waiting for a hurricane, right, to sort of to to repair your roof. Um, and I think that the problem with that is, as you say, you know, so now the next president comes along and what is a president what is a Democratic president going to do on day one? They're going to fire everybody. Um, that's, you know, going to be cathartic and maybe satisfying in the short term. Um, in the long term it just creates more instability in the executive branch and it makes it harder to trust executive branch agencies and executive branch scientists and executive branch doctors.

[00:13:08]And I think, you know, this is where we've really lost the threat a bit on why we have the separation of powers.

[00:13:14]These are not supposed to be hermetically sealed branches. This is supposed to be as as John Marshall said in McCulloch, right, an effective government. Um, and I think we're seeing the the real cost of that in real time, which is why it's so I think tragically ironic that this is going to be the term where the Supreme Court embraces as robust a a view of that theory as we've seen before.

[00:13:35]Yeah, well, they're creating the basis for a lot of power for the next president.

[00:13:42]Uh Trump is, you know, um he will use this however he uses it. Uh what um mainly I think um for his obsessions with interior decorating and monuments.

[00:13:56]But um at this point he he's he's going to lose control of the Congress uh to one degree or another, one body or both, and he's going to be, although he is already enfeebled by his own policy decisions, even more constrained.

[00:14:15]And the next president will be unbound by what the Supreme Court does.

[00:14:19]Mhm.

[00:14:20]I think the problem is is that what the the the problem for the next president is that the court has enabled an awful lot of control over the bureaucracy, but it hasn't actually, you know, sort of abandoned the field when it comes to substantive regulation. Um and in fact, to the contrary, right? Just two terms ago, the Supreme Court radically increased judicial power at the expense of the executive branch in the context of the substantive regulatory field. And so the next president, sitting I think you're right, is going to have all kinds of an ability to clean house and do what they want bureaucratically starting on day one.

[00:14:54]I worry that this court, right, has, you know, no restraint left in it and would be perfectly happy to thwart the substantive policy agenda of any subsequent administration that it doesn't approve of. So then what So what you're saying, Steve, is um this decisions that is coming up on the so-called administrative state and the unitary executive um in which they will establish their ideological point.

[00:15:22]They would be happy to overrule under a democratic president, and that that would be the consistency.

[00:15:30]Or I I don't even know if they have to overrule them, Sydney. I think like the the problem is, you know, it won't matter who your who the assistant secretary or the assistant administrator is if everything they do can be blocked by the courts in a post-Chevron deference world, right? And so I I again, I think it's about this distinction between vertical control of the bureaucracy and an actual ability to govern. And those are not necessarily the same thing. And so, you know, I worry I mean, after the tariffs decision um back to Sarah Isgur for a second. She wrote a piece in the Atlantic about how the real project of the Roberts Court is to rein in presidential power. Um which I found to be Yes. Uh not especially persuasive. But, right? But, um the one place where I think the court is perfectly happy to rein in presidential power is in the substantive delegation context. And the tariffs case I think is an example of that. And so, the problem is that a next president, especially a democratic president who actually wants to govern, I think is really going to need Congress cuz I think they're going to need some statutes um to get through the kind of judicial gauntlet that's otherwise going to be standing in the way.

[00:16:36]Yeah. Well, that's going to raise inevitably an issue that you've addressed, and that is question of judicial reform.

[00:16:46]And where are we with that? The court has done it to itself. Yeah. Yes. So, I think I mean, I think what's striking to me I'm sorry, Sean. I didn't mean to cut you off. No, but I was going to ask where we stand on judicial reform and where, you know, what you look might look forward to if all these dire things happen.

[00:17:00]So, I mean, it's it's loud I think the drumbeat is louder now than it's been, frankly, at any point that I can remember, including in the aftermath of Dobbs, when of course that was a big part of the conversation. Um There are plenty of folks who you'll see online these days who will say, you know, I wasn't really strongly for judicial reform before, but I am now.

[00:17:18]Um, and so I think the real fight is not going to be whether there will be court reform, but what form it will take. And that to me is a real debate where I think I'm actually a bit on the wrong side compared to where the momentum seems to be, right? I am of the view Yeah.

[00:17:35]Yeah.

[00:17:37]Well, so the two most common things you hear folks talk about these days is expanding the court, right? Changing its personnel by adding, say, four seats for a Democratic president, presumably in a Democratic Senate to fill, um, imposing term limits, although I have reason to think that won't be effective, but right. Um, the the focus is on like knee-capping the court and undermining the court and jurisdiction stripping, right? Stopping the court from deciding cases.

[00:18:04]And like I understand all of those preferences in the short term. I think in the long term they will all serve only to weaken the court further because they'll reinforce the perception that the court is just a tool of current political power. Um, I do think we need court reform, but the reform we need I think is deeper and more structural, which is to me the real problem with the Supreme Court we have today is that it's become completely unaccountable. That Congress, as you both know, used to pull all of these levers. It used to control when the court sat, where the court sat. It made the justices ride circuit all the way up to 1911 to humble them and to keep them from becoming this insular institution.

[00:18:47]The court sat in the capital until 1935.

[00:18:51]Um, the, you know, Congress used to mess with the budget, right? And so, I, you know, to me the real story here is [clears throat] that two things happened at once.

[00:19:00]First, Congress stopped pulling all those levers and the biggest moment there was in 1988 when Congress gave the court complete control over its docket.

[00:19:10]And then the second thing is, although that happened, that project was over by the '80s, it took a while to manifest cuz the court still had a middle.

[00:19:18]Right, it had, you know, Potter Stewart or Lewis Powell or Anthony Kennedy or Sandra Day O'Connor. And it's really only when the middle left, which was 2018, that all of a sudden you've got a court with no external accountability and with no internal accountability looks around and says, "Hey, we can go for a joyride." To me, that's the court reform. How do we make the court look over its shoulder again? And I don't think that expansion and term limits and jurisdiction stripping is the way to do that because I still want a court that can push back against the president, right? We still need courts for the Abrego Garcias of the world where, you know, we don't trust the democratic majorities to protect our rights. And so that's that's the difference that I think is going to really be at the heart of the court reform conversations we have over the next 2 and 1/2 years.

[00:20:09]Yeah, the answer is Yeah, what I think I'll say the answer to the politicization of the court, which has been going on over 40 years, is not to suddenly try to repel, you know, push back with the more politicization. The point is is something different. Yeah. Yeah, so what you're saying, Steve, is that the way to restore the authority and credibility of Article 3 is to restore the power of Article 1.

[00:20:38]>> Article Article 1, yes.

[00:20:40]>> [snorts] >> I I mean I think so I think, you know, obviously having justices who are more institutionally minded would help. I mean the the middle made a difference in the 1960s and '70s and '80s. But yeah, I mean I think we I have more faith that a reform-minded Congress could accomplish that than I have that a future president will have any incentive to pick a moderate institutionalist person, right, for the Supreme Court. And I I we need both, but I think, you know, one of them we certainly need at least one of them and I think the the congressional reform piece is more likely because there's going to be an appetite for court reform. The question is just what shape will those reforms take?

[00:21:18]But what if you were to take two or three, you know, examples though of what Congress could do? What would be at the top of your list? What would you tell the future Congress to to be pursuing?

[00:21:27]So um the two the first two are easy, the third is harder. So the the first one is Congress should reclaim some control over the court's caseload. Um and that's you know, that would I think raise zero constitutional quibbles. Um there are some obvious categories where I think Congress could require the court to take some more cases and lower courts would rejoice. Um you know, the court I think you guys know this data, the court is deciding only about 55 cases per term now. Um that's been true since the October 2019 term because of COVID. Before October 2019, you have to go back to 1864 to find the court deciding so few cases. In the 1980s, the court still Just footnote, there virtually was no Supreme Court in 1864. There was a war going on.

[00:22:10]>> [laughter] >> But but you have to go back to the I mean, you know, 1988 the court's deciding 150 cases a year. Um and I think, you know, if the court were doing more what we might call lawyerly cases, right? Fewer of these ideological red meat cases, it might look more like a court. Um so one, Sean, is docket reform. Um two, to help with all of the sort of the ethics and financial behavior stuff, um an Article III Inspector General, right? An ombudsperson, um who would you know, we instead of that we're not relying on ProPublica to audit the justices' records and to make sure the justices are complying with the relevant financial and ethics rules. Having an Article III You know, that person, to my mind, could not constitutionally punish the justices, but shame is a powerful drug. Um and you know, even just having a public, you know, bi-annual or semi-annual reports, um I think would go a long way.

[00:23:00]>> To the to the to the Congress.

[00:23:02]>> Well, and to the public and and to us.

[00:23:04]>> but yes, sure. Um and then so so those are the two easy ones. The third one is a bit trickier, but you know, Gabe Roth at Fix the Court has some really sophisticated proposals on this front.

[00:23:16]Congress could use its budgetary power.

[00:23:18]I mean, the you know, the the power of the everyone always yells at me and says Congress will never pass any statutes about the Supreme Court. And I say, well, they have to pass one every year.

[00:23:27]They have to fund it. Right.

[00:23:28]>> Um and you know, the court's budget request for this year, I think is something like $220 million. Only about 3 and 1/2 million of that are the justices' salaries and benefits, the things that Article 3 of the Constitution protects. Um the rest of that's up to Congress. And so, you know, it wasn't that long ago that Congress used the budget power at least to get the justices to come before them and explain stuff. Um there's this remarkable episode in March 2001 where Jose Serrano grills Justice Anthony Kennedy about Bush versus Gore. Um right, you know, here's a remarkable statistics. Next week, um I think Justice Kagan and one of the Republican appointees, maybe Justice Gorsuch, are going to go testify in support of the court's budget in the Senate. Um it's going to be the first time that a single Supreme Court Justice appeared at a Senate hearing since 20 a non-confirmation hearing since 2011. Um it's been 15 years and it used to happen all the time. So, Sean, it's a little more amorphous, but you know, having Congress get back in the habit of using its power over the purse as a cudgel, I think is something that would also be a salutary development.

[00:24:35]Yeah, well, you're going to have a situation if the Democrats gain control in the House and the Senate where you've got um chairmen of the Judiciary Committees who are very knowledgeable about the law.

[00:24:48]In the one case, Jamie Raskin, former Constitutional Law Professor himself, and Sheldon Whitehouse, former Attorney General of Rhode Island and prosecutor in the Senate. So, that would be a very very different circumstance than you have today.

[00:25:05]But I I mean I think both, you know, both Congressman Raskin, who's a former colleague of mine at American and Senator Whitehouse, um will very much have court reform on the brain. I think again it's going to be this fight over whether the goal of court reform is to weaken the court um or to make it or or to make it, you know, a better behaving actor in our separation of powers framework. And I don't think that those two things are necessarily consistent.

[00:25:31]Yeah.

[00:25:33]Yeah.

[00:25:34]Well, Steve, I want to thank you very much for that um a tour d'horizon of uh where we are today. Um we've covered the waterfront and um we will uh return uh again at a later date. Look forward to having you. You're definitely a friend of the court. And um this session of the Court of History is adjourned on behalf of myself and my co-host uh Shawn Milanes. Please subscribe to Legal AF.

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