WASHINGTON — President-elect Donald Trump’s ambitious agenda could face pushback from an institution he has done much to shape: the Supreme Court.
With a 6-3 conservative majority including three Trump appointees, the court has spent the last few years buffeted by criticism from the left. But if the justices stick true to their stated jurisprudential principles, the new administration could end up on the losing side at least some of the time, legal experts say.
“I think if President Trump’s executive agencies tried to stretch the law beyond the breaking point in the same kind of way that the Biden administration has done then, yes, the courts will be a check on that power,” said John Malcolm, a lawyer at the Trump-allied Heritage Foundation.
Brianne Gorod, a lawyer with the left-leaning Constitutional Accountability Center, said while in certain rulings the court has failed to hold Trump accountable, it still has a key role to play.
“Trump has made clear that going forward he is going to be even less concerned with abiding by the Constitution and federal law than he was the last time he was in the White House, so the courts, including the Supreme Court, are on notice that their role as a vital check in our constitutional system will be tested,” she added.
History is a guide, with Trump losing several high-profile cases in his first term, including over his attempt to wind down the program that protects young immigrants known as “Dreamers” from deportations and a plan to add a citizenship question to the census.
The Trump administration also suffered a big loss when in 2020 the court ruled 6-3 to extend workplace discrimination protections to LGBTQ employees, a decision that angered conservatives.
He won his fair share of cases too, including over his travel ban on people entering the U.S. from mostly Muslim-majority countries.
Trump’s losses often derived from the court faulting federal agencies for not following the correct procedures when issuing new policies.
“I do think the Supreme Court will make the administration do the real work that is required to make regulatory change,” said Jonathan Adler, a professor at Case Western Reserve University School of Law.
The court has changed somewhat since then, with Trump’s third appointee, Amy Coney Barrett, joining right at the end of his first term, creating the current 6-3 majority. President Joe Biden, meanwhile, appointed Justice Ketanji Brown Jackson to replace fellow liberal Justice Stephen Breyer.
Trump could also have the opportunity to further shape the court in his new term, with the possibility of one or more of the senior conservative justices stepping down.
During the Biden years, the court has set new precedents while ruling against the administration that in theory apply to Trump too.
The court embraced a theory called the “major questions doctrine” in striking down Biden policies that relied upon broad use of executive power that wasn’t explicitly authorized by Congress, including his broad plan to forgive student loan debt.
The court earlier this year also overturned a 40-year-precedent that gave deference to federal agencies, soon to be controlled again by Trump, in interpreting vaguely worded laws.
Trump could get more leeway on certain issues where the president traditionally gets more deference from courts than the law constrains him.
Immigration, foreign policy and international trade are all areas where Trump has flexibility to act, Adler said.
Another contentious issue the Supreme Court could back Trump on would be on any attempt to enforce the Comstock Act, an obscure 19th-century law that prohibits abortion-related materials from being transported by mail between states. It could potentially be applied to abortion pill mifepristone.
But on other issues, like environmental regulation, efforts to deregulate more than laws allow for could be difficult to defend, he added.
One issue where Trump would almost certainly enter choppy legal waters is his plan to end birthright citizenship, a right enshrined in the Constitution.
Proposals to withhold funding to liberal jurisdictions that refuse to cooperate with the administration on, for example, rounding up undocumented immigrants or rolling back protections for transgender students in schools, would also lead to litigation that could end up before the justices.
Although the Biden administration suffered many high-profile losses during the last four years, on abortion, gun rights, regulatory issues and more, it also chalked up some major victories in cases it intervened in.
Last year, the court rejected a conservative plea to further weaken the landmark Voting Rights Act and also turned away a fringe legal theory that would have given state legislatures unfettered power over election rules. The court this year nixed a lawsuit aimed at overturning federal approval of mifepristone.
But some on the left have no confidence that the court will hold Trump to the same standards as Biden, citing in part the ruling earlier this year granting Trump some immunity over his attempt to overturn the 2020 election results. The court actions in that case derailed the chance of a trial taking place before the election.
“The Supreme Court supermajority has given us no reason to expect that it will be anything other than be a rubber stamp for his worse impulses,” said Alex Aronson, who runs Court Accountability, a left-leaning legal group. “They’ve previewed their support for an imperial presidency and have demonstrated their willingness to strip rights and freedoms from the American people.”
