| Get Jonathan Bernstein's newsletter every morning in your inbox. Click here to subscribe. Will the Supreme Court save the Republican Party from Donald Trump?
Congress is finally starting to pick up the pace of its investigations into the events of Jan. 6, and more broadly into the efforts by then-president Trump to subvert the 2020 election. A Senate committee has reported in detail on Trump's efforts to improperly influence the Justice Department, and the House select committee has issued subpoenas that Trump is urging people to ignore.
Given the enormity of Trump's schemes after the election, the very real possibility of indictments, and the former president's litigious habits, there's a good chance that one or more lawsuits will make their way up the judicial ladder. The courts may face cases about executive power, congressional oversight and more.
I'll leave the law to the lawyers. But let's pretend, for now, that Supreme Court justices are driven only by partisanship and self-interest. (To be sure: That's a vastly oversimplified view of how judges act.) Where would that take the six Republican-nominated justices?
To begin with, none of those justices, including the three chosen by Trump, are really from the Trump wing of the party. Some of them appear to be highly partisan, but there's a difference between favoring the Republican position and doing whatever Trump wants. Indeed, we saw plenty of that in the first round of post-election court cases, in which Republican-nominated jurists generally refused to bend the law the way Trump's campaign wanted.
Another factor to consider is that Chief Justice John Roberts has at times seemed to make decisions with the reputation of the court in mind, which has led him to push back against overt displays of pure partisanship by the Republicans on the bench. That could well come into play in any Trump cases. Were Trump still president, that instinct might have to be balanced by partisan loyalty. With Trump out of office, the immediate harm to the party might seem less pressing than the chance to demonstrate the court's independence.
Restrictions on the presidency, moreover, could be understood by those same Republican-nominated justices as helpful to the party right now, given that they might fall most heavily on the current — Democratic — occupant of the White House. Empowering congressional oversight in the run-up to midterm elections in which Republicans will probably be favored to win at least one chamber of Congress could be similarly beneficial. In other words, the justices might get the best of both worlds: a partisan decision that looks, on the surface, like a highly independent one. That might be very tempting indeed.
As for loyalty to Trump, the big, obvious difference between Supreme Court justices and, say, Republicans in Congress is that the former have no electoral considerations to worry about. Sure, on a personal basis they may not like getting roasted on talk radio. But at the same time, some of them have already been personally attacked by Trump, and unlike (say) former Vice President Mike Pence, they have quite a bit of freedom to get revenge on Trump without any risk to their careers. They may even conclude that they're doing the party a favor if they can help prevent another Trump presidential nomination in 2024, given his less-than-impressive history as a candidate so far.
Granted, the Republican-nominated justices may read the politics very differently. It's also possible they'll feel free to support Trump in one set of cases, and then flip around and re-establish limits on the presidency of Joe Biden anyway. But again, that may be a stretch even for very partisan judges.
Of course, this is only pretend. Supreme Court justices don't really make decisions based on such things as partisanship and self-interest, and certainly not personal pettiness. Right?
1. Matt Grossmann talks with Matt Glassman about legislating in the current Congress.
2. Dan Drezner on the CIA after Afghanistan.
3. Derek Thompson on shortages.
4. My Bloomberg Opinion colleague Clara Ferreira Marques on the pandemic and the Philippines.
5. Jesse Wegman on a modern-day poll tax in Florida.
6. And Catherine Rampell on Democrats and business.
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