Replacing the Rule of Law
"When you’re a star, they let you do it. You can do anything."
- Donald J. Trump
Renewed scrutiny of Trump’s ties to Jeffrey Epstein reminds us of just how Trump’s strategy with women—assaulting them without permission, on the assumption that legal accountability was unlikely—mirrors his strategy for governing. Grab ‘em by the institutions.
And Trump has been mostly proven right, because the Supreme Court seems to be willing to let him do anything, to exempt him from the laws that prior Presidents had to follow.
A couple of months ago, the major concern was what would happen when Trump defied the courts. A more complicated picture is now emerging. One that mixes quiet but unmistakable defiance of court decisions by the Trump administration with encouragement from the six Republican-appointed Justices who sit atop the judicial branch. This is an arguably worse scenario, since it provides a veneer of legalism even as it replaces the rule of law with rule by law, where Trump is allowed to determine the nature of that law.
The emerging pattern is that the Trump administration is checked by the lower courts, slow-walks compliance, and sometimes asks SCOTUS for help, which they usually provide via poorly reasoned opinions or no opinions at all. The Supreme Court often does not feel the need to explain what are effectively constitutional amendments that rebalance the separation of powers, feeding perceptions of the court as a partisan actor.
Consider the following:
The Trump administration has defied or frustrated more than one third of the 165 cases where the courts have ruled against Trump.
Since April, the Supreme Court has granted relief to Trump in all 15 of the emergency applications filed by the President. In only three decisions has the majority written a decision to explain its reasoning.
Why does this matter?
The combination of Trump defiance and SCOTUS enabling has allowed him to move ahead with some extraordinarily damaging actions, which will be impossible to quickly or fully unwind.
(An excerpt from the Substack of Don Moynihan, a professor of public policy at the University of Michigan.)