Here is a sobering thought: He was generally opposed, starting in 2017, through mobilizing the law to constrain the presidency. That opposition may not have stopped Trump from regaining power, but the experience did shape his own future tactics. You say he is lawless over and over, when you dispute his policies and values? He will respond by attempting to rely on the law to punish you. And even as many insist that the law is the indispensable source of limits on power, Trump experiments with testing those limits, in hopes that the overall results will expand his power instead.
Are there actual limits that the law imposes? A lot of liberals have spoken in dark tones about a “constitutional crisis” coming or that’s already here, especially if and when Trump defies court orders.
I think Trump’s bluster so far about “defying” judges is far less significant than his pushing the law to see how far it will authorize his acts, including finding old laws that are toxic legacies of bygone eras (like the Alien Enemies Act) and going a little further than the Supreme Court itself has been willing to go (like in the areas of presidential control over the executive branch) to invite another step. In turn, Trump recognizes that the law is a double-edged sword: it generally authorizes, rather than undercuts, power. One of the many ways in which Trump has not broken radically with precedents is that the history of the country since World War II has involved the universal collusion of all branches of government, and indeed the public itself, with presidentialism.
Let’s talk a bit more about that. When I was growing up in the 1990s and 2000s, liberals would often reference the Warren Court as being one of the key instigators of progressive social change in the United States. The law, in other words, was presented as on the side of justice — at least in the medium and long terms. Has this notion undergone a shift in recent years? Are Trump’s actions reshaping how lawyers and legal scholars understand their role?
Institutions like mine, Yale Law School, are loath to break with the fantasy that, properly interpreted, the law is liberal, even after fifty years of conservatives finding their preferred outcomes in it more regularly. Of course, the Supreme Court was anomalously and briefly involved in social change, but its role was always overhyped. I’d say the belief in its providential role has been far more damaging than its contributions have been progressive, keeping a rosy glow around the judiciary while law moved ever more or less inexorably right.