When Supreme Court Justice Anthony Kennedy announced his retirement in June 2019, President Donald Trump had rare opportunity to appoint a second Supreme Court Justice in his first term of the presidency. Because Supreme Court Justices are lifelong, appointed officials with the power of judicial review and constitutional interpretation, appointing Supreme Court justices is among one of the most entrenched avenues a sitting president has to cement his legacy. President Trump has been able to effectively utilize this power, despite some Court rulings that are seemingly moving against his policy preferences. Trump will be able to utilize the power and legitimacy of the Court to help a move towards stealth authoritarianism, a way to entrench incumbent power without outright repression, as Varol defines its use of the judicial system [1].

Before Justice Kennedy retired, President Trump had appointed another Supreme Court Justice- Judge Neil Gorsuch of the 10th Circuit Court of Appeals, despite the vacancy in the Court having occurred under President Obama. After Gorsuch’s confirmation, the Court appeared to have a conservative majority, which would appear in line to further Trump’s policies. Indeed, the Court announced several important decisions that reinforced policies set by the President, including Trump v. Hawaii, in which the Court, voted 5-4 along ideological lines to uphold President Trump’s executive order colloquially known as the “travel ban” after the order was challenged in the lower federal courts.

Despite the Court seeming to be in line with the President’s wishes, the conservative majority was still not settled: Justice Kennedy had a reputation of being a swing vote who sometimes sided with the liberal bloc of justices on notable cases, particularly having to do with LGBT rights. However, when he announced his retirement, he paved the way for the President to choose another Supreme Court justice.

President Trump nominated Judge Brett Kavanaugh, a judge on the DC Circuit Court of Appeals, former lawyer in the Starr investigation into President Bill Clinton, and former lawyer in the Bush administration. After an extremely contentious confirmation process, Justice Kavanaugh was confirmed to the Court and President Trump secured his conservative majority on the Court. However, the confirmation process demonstrated the Court politicization of the Court and that the president was hoping for it to continue to be responsive to its policies.

The new, seemingly-conservative Supreme Court did not always seem to be ruling in the manner that might have been expected. In February 2019 the Court voted in a 5-4 decision to place a stay on a Louisiana law that was purported to restrict access to abortions in a case in the lower courts called June Medical Services vs. Gee. Chief Justice John Roberts voted with the liberal block to stay the abortion law. Therefore, despite the new additions to the President’s Supreme Court, it did not rule in the way the President may have expected, considering the the President had campaigned on a promise that he would overturn Roe v. Wade through his appointment of justices.

The Court may have been motivated by something other than partisan politics: the desire for its own legitimacy. Many say that Chief Justice Roberts chose to vote with the liberal block in order to ensure that the Court did not appear to be too partisan- which would weaken its power as an institution that is (ideally and constitutionally) designed to seem more impartial than other branches of the government. In doing so, the Court seems to have shifted away from ruling in line with the President’s policies, at least in some cases.

However, as Varol points out in Stealth Authoritarianism, this may have benefits for the president’s solidifying of his policies via the Court. Varol says that incumbents may want to have the judiciary rule against them sometimes in order to enforce the Court’s appearance of independence and heighten its standing with the public [2]. As long as these rulings don’t put a real dent into the wishes of the incumbent, it is good for the Court to occasionally disagree with the executive because it will ensure that the judiciary is seen as separate from the executive. This allows the executive’s policies to hold more legitimacy when affirmed by the court in cases important to the executive. The Supreme Court’s stay on the Louisiana law did not make a decision on the future of Roe v. Wade and the case may make its way back to the Court for a final determination. Therefore, despite the fact that the Court ruled against what the president’s base may have wanted, the Court appears more impartial, does not damage any of the president’s policy goals, and will help President Trump’s future policy decisions that are validated by the Court appear legitimate.

It is possible that Chief Justice Roberts sided with the liberal bloc in order to save the Court- after all, he was not appointed by President Trump. However, even if that is the case, the effect it will have will only help the President, who, along with his party, is recognizing the importance of the courts in entrenching his policies and legacy in accordance with Varol’s interpretation.

This is especially important to the Trump administration right now due to two issues that are making their way through the federal judiciary. One is healthcare- a federal judge in Texas ruled that the Affordable Care Act, something that President Trump campaigned on repealing, is unconstitutional If this case makes it up to the Supreme Court, the President will need to appear as though an impartial court made the decision.

Additionally, there is a case concerning the constitutionality of a citizenship question on the US census making its way to the Supreme Court. The census question is critical, because its ramifications include the determination of electoral districts, the electoral college, and representation among the states. As Varol points out, a concern of a stealth authoritarianism is changing electoral methods in favor of the incumbent, and the Court’s decision on the citizenship question may very well determine that in favor of the President [3]. By having a court favorable to him, and one that is also ensuring its own legitimacy and appearance of non-partisanship,the President set grounds for  furthering his stealth authoritarianism by giving himself power and assurance of policy acceptance through legal means.

[1] Varol, Ozan. 2015. “Stealth Authoritarianism.” Iowa Law Review. 100(4): pp. 1678

[2] Ibid, pp. 1691

[3] Ibid, pp. 1701

Photo Credit: Fred Schilling, Collection of the Supreme Court of the United States