WASHINGTON — President-elect Donald Trump’s ambitious agenda could face a backlash from an institution he contributed much to: the Supreme Court.
With a six-to-three conservative majority, including three Trump appointees, the court has been plagued by criticism from the left in recent years. But if the justices remain true to their established jurisprudential principles, the new government could end up on the losing side at least some of the time, legal experts say.
“I think if President Trump’s executive branches tried to stretch the law past the breaking point in the same way the Biden administration has, the courts will indeed check that power,” said John Malcolm, an attorney. at the Trump-allied Heritage Foundation.
Brianne Gorod, an attorney with the left-leaning Constitutional Accountability Center, said the court has failed to hold Trump accountable in some rulings, but there is still a key role to play.
“Trump has made it clear that he will be even less concerned about adhering to the Constitution and federal law in the future than the last time he was in the White House, so the courts, including the Supreme Court, are on notice that their role as a crucial controller of 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 phase out the program that protects young immigrants known as “Dreamers” from deportations and a plan to apply for citizenship add the census.
The Trump administration also suffered a major loss when the court ruled 6-3 in 2020 to extend workplace discrimination protections to LGBTQ workers, a decision that angered conservatives.
He also won his fair share of cases, including over his travel ban on people entering the US from Muslim-majority countries.
Trump’s losses often stemmed from the court accusing federal agencies of not following proper procedures when issuing new policies.
“I really think the Supreme Court will let the government do the real work necessary to implement regulatory changes,” 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 at the end of his first term, creating the current 6-3 majority. President Joe Biden, meanwhile, appointed Judge Ketanji Brown Jackson to replace fellow liberal Judge Stephen Breyer.
Trump could also get a chance to further shape the court during his new term, with the possibility that one or more of the senior conservative justices may step down.
During the Biden years, the court set new precedents by ruling against the government, which in theory also apply to Trump.
The court embraced a theory called the “big questions doctrine” in striking down Biden’s policies that relied on a broad use of executive power not explicitly authorized by Congress, including his broad plan to forgive student loan debt to swear.
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 be given more leeway on certain issues where the president traditionally receives more respect from the courts than the law requires.
Immigration, foreign policy and international trade are all areas where Trump has the flexibility to act, Adler said.
Another controversial issue that the Supreme Court could back Trump on would involve any attempt to enforce the Comstock Act, an obscure 19th-century law that bans abortion-related materials from being transported between states by mail. It could possibly be applied to the abortion pill mifepristone.
But on other issues, such as environmental regulations, attempts to deregulate more than the laws allow could be difficult to defend, he added.
One issue that would almost certainly land Trump in choppy legal waters is his plan to end birthright citizenship, a right enshrined in the Constitution.
Proposals to withhold funding from liberal jurisdictions that refuse to cooperate with the government on, for example, rounding up undocumented immigrants or rolling back protections for transgender students in schools could also lead to lawsuits that could end up in the courts.
While the Biden administration has suffered many high-profile losses over the past four years on abortion, gun rights, regulatory issues and more, it has also scored some big wins in cases where it intervened.
Last year, the court rejected a conservative plea to further weaken the landmark voting rights law and also rejected a fringe legal theory that would have given state lawmakers unfettered power over election rules. The court this year dismissed a lawsuit seeking to overturn federal approval of mifepristone.
But some on the left are not confident that the court will hold Trump to the same standards as Biden, citing in part the ruling earlier this year that granted Trump some immunity for his attempt to overturn the 2020 election results. The legal action in that case derailed the chance of a trial before the election.
“The Supreme Court’s supermajority has given us no reason to expect it to be anything other than a rubber stamp for its worst impulses,” said Alex Aronson, who heads Court Accountability, a left-leaning legal group. “They have previewed their support for an imperial presidency and demonstrated their willingness to strip the rights and freedoms of the American people.”
This article was originally published on NBCNews.com
