Will the Supreme Court Stand Up to Trump?



Relevance comes at a price.

The election of Donald J. Trump promises to restore to the Supreme Court the working conservative majority that Chief Justice John G. Roberts Jr. lost a year ago when Justice Antonin Scalia’s death left the court deadlocked 4-4 on important issues.

But if the pre-election possibility of spending the next years or decades in the minority was scary for the chief justice, he now faces something even more daunting: responsibility.

President Trump’s hyperactive first days in office, along with the evidence that the two Republican-controlled houses of Congress will do the president’s bidding with few questions asked, leaves the judiciary as the only branch of government standing between the new administration and constitutional chaos. Consider what would have happened last weekend had half a dozen federal judges not stepped in to prevent the immediate ouster from the country of legal permanent residents and carefully vetted refugees and visa holders.

Whether those particular cases will make their way to the Supreme Court is uncertain. But the extraordinary scenes of recent days strongly suggest that the Roberts court will find itself in a national security spotlight. That’s an uncomfortable but hardly unknown place for the court to be: It was during the years after Sept. 11 that the court of Chief Justice William H. Rehnquist surprisingly pushed back against the Bush administration’s effort to create a legal black hole at Guantánamo Bay, where the administration had mistakenly calculated that detainees could be hidden away outside the reach of federal judges.

To the extent that the presidential campaign focused on the Supreme Court with any specificity, the attention was on abortion, religion, gay rights, guns and other familiar issues on the social agenda. But going forward, the Roberts court may find the most pressing issues on its docket to concern core questions of civil liberties and the separation of powers.

When the history of this period is written, the court will be judged by its answers to those questions. When the president, aided by his inner circle and his congressional enablers, pushes through some norm-shattering order, wipes away duly promulgated regulations with the flourish of a pen or drives a truck through the wall between church and state, where will the Roberts court be? (And where will Mr. Trump’s Supreme Court nominee, the appeals court judge Neil M. Gorsuch, be?)

It’s hard to imagine two figures on the current public stage less alike than the button-down chief justice and the flamboyant president.

What struck me eight years ago, when Chief Justice Roberts administered the oath of office to Barack Obama, was how each man embodied a different face of the generation that came of age after the fires of the 1960s had died away, both drawn by talent and ambition to the same place, Harvard Law School, from which they emerged to embark on such different paths to power.

Watching Chief Justice Roberts administer the oath to Donald Trump, what struck me was the unlikelihood that these two men would even be sharing the same stage — and not only because during the campaign, Mr. Trump called the chief justice “an absolute disaster” for his votes to preserve the Affordable Care Act.

If Donald Trump is the in-your-face chief executive, John Roberts has perfected the art of being the nearly invisible chief justice. He can be tough on the bench during arguments and in the justices’ private conference as well, but in public he exudes a self-deprecating diffidence.

Here’s an example: In the early 1980s, when John Roberts was a Supreme Court law clerk, Chief Justice Warren E. Burger would travel every year to the American Bar Association’s midwinter convention to give a “state of the judiciary” speech, unrolled as a grand occasion in the manner of the State of the Union. His successor, William H. Rehnquist, dialed the speech back, issuing it through the press office rather than delivering it in person.

At the end of 2009, his fifth year on the job, Chief Justice Roberts boiled it down to one page. He said that “when the political branches are faced with so many difficult issues, and when so many of our fellow citizens have been touched by hardship, the public might welcome a year-end report limited to what is essential.” All that people needed to know was that “the courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties.”

Imagine President Trump stepping back from the stage in such a manner.

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