In Learning Resources v. Trump, the Supreme Court invalidated President Trump's global tariffs by a 6-3 vote. Almost immediately, Trump held an impromptu press conference, in which he lashed out at the Court, and in particular two of his appointees, Justices Neil Gorsuch and Amy Coney Barrett, who joined the majority. The presser was classic Trump: angry, winding, but direct. First, he conveyed a truth that Republican presidents have known for nearly a century, but have rarely said aloud: progressive justices never break ranks when it counts, but conservative justices will invariably find the principle to do so. Second, Trump uttered another unspoken truth: Presidents fear that criticizing the Supreme Court may result in the Justices ruling against them. The Justices are supposed to rule without fear or favor, but they are still human and will invariably react to what they see as an overbearing president. Third, Trump now sees clearly the problem with those who advised him on his first batch of Supreme Court nominees. Rather than focusing on nominees who favored a strong, robust executive, they supported nominees who actually wanted to transfer power from the executive to Congress and to the courts. Should Trump have another Supreme Court vacancy, these three important lessons will inform his future decision.
Since the 1970s, the Supreme Court has had a majority of Republican-appointed Justices. Indeed, in 1991, eight of the nine Justices had been appointed by Republican presidents. Only Justice Byron White, a Kennedy appointee, was on the other side. Yet, the Court still leaned to the left. In Planned Parenthood v. Casey (1991), five Republican appointees voted to reaffirm Roe v. Wade. And even when the Court found a conservative majority, swing votes like Justices Sandra Day O'Connor and Anthony Kennedy moderated the outcome to the left. But the opposite effect seldom, if ever, happened. Over the past two decades, I have struggled to think of a decision where a Democratically appointed Justice cast the decisive fifth vote for a conservative victory. Justice Stephen Breyer, to his credit, cast an important vote to save a Ten Commandments monument at the Texas Capitol, but that narrow ruling was overwhelmed by a companion case from Kentucky that broadly expanded the Court's power to scrutinize religious displays. Justice Breyer also cast a key vote in a pair of affirmative action cases from Michigan, but there, too, racial preferences were largely upheld. And in NFIB v. Sebelius (2012), Justices Breyer and Elena Kagan joined the Chief Justice in holding that states could opt out of the Affordable Care Act's Medicaid expansion. But it has been reported that they did so as part of a compromise to avoid invalidating the entire program. Since Justice Breyer's retirement, I think the odds of compromises from the left are slim.
President Trump's press conference described this dynamic and used his own appointees as examples. Trump said, "The Democrats on the court are thrilled, but they will automatically vote no." Trump added that the Democratic appointees are "an automatic no, just like in Congress." How often do Democratic politicians break ranks and vote on principle? Republicans in Indiana voted against redistricting. Will any Democratic state legislatures actually vote against a Democratic gerrymander? Trump's analogy between Democratic politicians and Democratic-appointed judges has some merit. I struggle to think of any significant case where the Court's progressive justices cast a dispositive vote against the progressive side.
