Trump Keeps Winning at the Supreme Court. There Are Two Convincing Theories Why.

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There is a long-standing theory among Supreme Court watchers that holds that the reason the six conservatives on the John Roberts court keep giving President Donald Trump big wins is because they are attempting not to provoke a fight with him, and thus not invite a so-called constitutional crisis wherein the executive branch and the high court are in an intractable standoff. On this week’s Amicus^[2] podcast, Dahlia Lithwick spoke to Ian Millhiser, senior correspondent at Vox, who writes about the Supreme Court^[3], the Constitution^[4], and the decline of liberal democracy^[5] in the United States, and attempted to understand whether this is a logical explanation of the conservatives’ thinking. A portion of their conversation, which has been edited and condensed for clarity, is below.

Dahlia Lithwick: I wanted to ask about what has come to be named the appeasement theory, the idea being that the Roberts court rolls on pretty much everything for Donald Trump, but it’s because they’re saving their powder—giving Donald Trump a string of uninterrupted wins, all in the hopes that they’re not going to draw down whatever capital they have with him. The idea being that when the real constitutional crisis is upon us, they will leap out and save democracy. I hear this a lot from people that are very, very smart. I am curious if, in your view, what the Kavanaugh–Barrett–chief justice trifecta is really saying, is OK, we’re going to wait until things get really bad and then we’re going to stop the juggernaut. I’m very curious how that’s going to work or if they genuinely don’t think there’s a juggernaut here to be stopped now.

Ian Millhiser: I try not to read the minds of the justices in part because I don’t know if it really matters that much whether the Neville Chamberlain theory of the Supreme Court is correct or whether the theory that they’re just 100 percent on board with MAGA is correct. Either way, they’re handing down the same decisions and what matters most is the results. I think what potentially supports the Neville Chamberlain theory is that they haven’t been handing down too many decisions saying: “Yes, the Constitution says that Trump can do this tyrannical thing that he wants to do.” What they’re doing instead is saying if you file in Court X, [we’ll] say, No, no, no—you had to file in Court Y. If you get an injunction, they’ll say, No, you didn’t meet the rules for what you need to do to get an injunction. If one plaintiff brings a suit, they’ll say, No, someone else had to be the plaintiff. They’re finding all these procedural ways to hand Trump victories and maybe that’s because they don’t want to damage the substantive law. And maybe they will turn around eventually when someone finally finds the perfect plaintiff and files in the perfect court [so] that Amy Coney Barrett has to admit, Yes, you are allowed to bring this magical person to this magical court and actually get a magical injunction from it.

Maybe they will then rule in August of Trump’s last year in office that he did something illegal, but who cares? The crisis is now. And if they are letting Trump win because they think they can appease him and find procedural reasons to kick the can down the road for as long as possible, or if they are instead doing it because they think that Stephen Miller is the most awesome person who has ever lived and they wake up every morning asking themselves, What would Stephen Miller do?, we’re still getting the exact same results.

Is what you’re saying, they just don’t care about the carnage as long as they do it on technical grounds? Or are you saying, they just do not see it as carnage? 

I mean, it’s certainly true that a lot of these justices, the Republican justices, have a very strong ideological commitment to a very, very powerful presidency. That’s what this unitary executive theory that they’re all in love with is all about. So maybe they’re doing it just because they are on board with it. I think there is another more cynical explanation for what they are doing, which is that they might think that Trump’s politics may not be sustainable. And four years from now, we might have, say, a President Josh Shapiro or someone in office who is trying to use all of these powers that the court has given Trump. And if they definitively rule that Trump has the power to do something, then when President Gretchen Whitmer, President Cory Booker, or President AOC comes in and wants to use these powers, then they could turn around and hand down the decision saying, No, the president is not allowed to do this once a Democrat is doing it. So certainly this tactic that they’re using—of kicking the cans down the road and not handing down any definitive decisions—it leaves open the possibility to manipulate the timing of their decisions as they often do to make sure that they benefit their party and do not benefit the Democratic Party.

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