Ruth Marcus
Appearances
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
I think Justices Thomas and Alito are completely reliable. Justice Gorsuch, it depends on the particular case before him. For example, he has been much more supportive of trans rights, and those are the most reliable three. And then you have, I would think, in order, Justice Kavanaugh, the Chief Justice and Justice Barrett.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
And then there's this very interesting kind of four female justice group that is creating itself, not in all cases, but in some cases where you have the three liberal justices who are all women joining with Justice Barrett and then looking for a fifth.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
I think they are. What happened? Well, one thing that happened is maybe Chief Justice Roberts is no Chief Justice Earl Warren. But the court has also changed.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Well, weaker, but Chief Justice Earl Warren was famously able to help the Brown Court to become a unanimous court and issue a unanimous ruling. In Brown v. Board of Education. Chief Justice Roberts may not have that kind of persuasive power with his colleagues, but he also has different colleagues. And especially when his majority went from five to six, that didn't enhance his power.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
It weakened his power because it meant that he was a little bit disposable for the other justices. And by the way, some of them are really angry at him for, you know, alleged perfidy on his part to do things like vote to uphold the Affordable Care Act case. So they're not inclined necessarily to go along with him if he says, which they wouldn't say this directly, this one's really important to me.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
No, I think that happens. And I think, you know, if we look at the evolution, maybe too strong a word for it, but because Justice Barrett has not been on the court for that long, but her profile has changed over the years from a justice who is reliably, reliably in the conservative camp to a justice who is conservative and
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
but a less reliable conservative vote than the justices on the end of the spectrum. Well, I think some people would say that Justice Elena Kagan did a really good job of convincing her and finding alliances with her. And a lot of times, you know, when you're writing a story with somebody, if you disagree about a word, maybe you could find a third word.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Maybe you could go along with their word on some other thing. And so sometimes, Strategic justices make alliances and sometimes pull their punches on things that they would say in order to get another justice to come along with them. And I think, you know, behind the scenes, that is something that it appears is happening with Justice Barrett.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
I think it might be easier to cover the Vatican than to cover the Supreme Court. It's like Plato's cave, and you're just reading, you know, maybe you'll find somebody who has talked to somebody who has talked to somebody, so you'll hear something.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
There's not a ton of people who either know what they're talking about, nine really know what they're talking about, or who are willing to talk to you about it.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
There's nothing even close to precedent.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Several law firms have been subject to different versions of this same order, but it basically says— because I don't like the things that you've been doing, here are things that you can no longer do. You can no longer go into government buildings. You can no longer meet with government officials. That is lawyers bread and butter. Hi, can I get a meeting to talk about these tariffs?
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Hi, can I get a meeting to talk about this pending indictment? Hi, can I get a meeting to explain why you should approve my client's umpty ump billion dollar merger? Your clients are at risk of losing their government contracts. You can no longer have security clearances in cases where you need those in order to be able to represent your clients.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Oh, by the way, we won't hire lawyers for government jobs after that. And it's – many lawyers go to private firms and then want to go become prosecutors or something after that. So it's basically saying – Nice little law firm business you have there, $2.6 billion a year in the case of Paul Weiss. It'd be really a shame if all your clients left you and it crumbled before your eyes.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
The fear was that clients would start running to the doors. And when you said, OK, fine, you'll lose some clients, but really seriously, can't you take a hit? You started to hear words like death spiral. And it is true that immediately after these orders are issued against law firms, other law firms were doing two things.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
They were suggesting to the law firm's clients that, gee, it might be better off to have a firm that isn't on the government blacklist. And they were suggesting to some of the really highest paid and most highest billing partners at these law firms that, gee, it might be better for you if you weren't tied to this firm that's on the government blacklist.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
So why don't you take your book of business and come to us?
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Their rationale was that how can you live with yourself if you agree to settle something, settle a matter in which you have done absolutely nothing wrong? Take, for example, one of the charges in the indictment. It's not obviously a technical indictment.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
of Wilmer Cutler and Pickering, which is one of the firms that got the executive order, was that it had the temerity not just to hire Bob Mueller in the first place, but to take him back after he served as special counsel investigating Russia and the first Trump administration. In election interference, yeah. And I think the law firms were unwilling to—
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
acknowledge blameworthiness when they weren't blameworthy. They were unwilling to pay the extortion price that Trump had set. And I think for some firms, they couldn't figure out the way into the to the administration to try to negotiate the same deal that firms like Paul Weiss and Skadden had.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
I'm kind of 75-25 on this. Somebody asked me several weeks ago to go on a podcast to talk about a Trump third term, and I blew them off. I was like, that's ridiculous. It's not even a close question. And I think that was probably wrong on my part, because since then, the president has famously told us that he's not kidding. And the one thing that I have learned recently
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
is that when he says he wants to do something, you should not just dismiss it as idiot trolling by somebody who has never read the Constitution and doesn't respect it at all. He is going to try to push this in some way. And so I am way less dismissive of his craziness than I used to be.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Well, TBD. Trump's legal strategy has been backfiring, I think, demonstrably in the lower courts. On what kind of cases? Everything from challenging DEI orders to challenging the orders against law firms to challenging the administration's attempt to undo birthright citizenship to challenging putting USAID and every other federal agency that distributes grants into the wood chipper.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
I think he has found none of them are actually Roy Cohn, but in their totality, there are a lot of mini-Roys. He has excluded the people who will stand up to him. Think about people like... Bill Barr, even Jefferson Sessions, like the head of the Office of Legal Counsel.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Exactly. On top of that, in their place, has brought in the most pliable people that he can imagine. And I'm talking about that from Pam Bondi down.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Discuss. They used to give us take-home exams. I think the framers of the Constitution fully understood the... that arrangement. And whether it's a flaw or not, they understood that the judiciary was, in fact, the least dangerous branch.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
But it did have the power, as Justice Marshall told us in Marbury v. Madison, of being able to declare what the law is, and at least until recently, of having a public that was going to be behind it in terms of respecting the court when it issued orders. So I don't think it's a constitutional design flaw. I think as with so many things, Trump just puts the Constitution to a stress test.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
And, you know, some of us have failed our stress tests in the past.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
All right. That was fun. It's scary, especially on the take-home exam.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
But I'm talking about orders from Reagan-appointed judges, from Bush-appointed judges, both Bushes, from, yes, Democratic-appointed judges. But we do have to say, acknowledge that we have this thing called the Supreme Court, which is in fact supreme.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
And we had gotten until this last few days, very few tea leaves from the Supreme Court on how it is going to think about this blizzard of Trump litigation. So there have been several orders from the Supreme Court in the last few days that were surprising to me. I thought the Supreme Court was going to send a message to the Trump administration, back off, guys.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
If you come running to us and call everything an emergency, nothing is going to be an emergency. So let these things go through the normal course and we'll get to it down the road. That's not what's happened. I don't think anybody expected that the legal strategy was going to be this intense, this fast, this broad based. In addition, the kind of fundamental rules.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
The worst sin you can commit in federal court is to be rude to the judge. This administration, they use language about judges. They accused Judge Boasberg in the district court of micromanaging.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Yes, and who President Trump called for his impeachment. Not going to happen, but a rather extraordinary thing to do. How do we know it's extraordinary? Because the Chief Justice of the United States felt moved to weigh in and say, excuse me, this is not a good idea to be calling for impeachment of judges. And the...
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
The administration, time after time, has come into court with really preposterous legal theories offered up by lawyers who do not know the facts of the cases before them. When did these flights take off? Can't say. How many people were on these flights? Can't really tell you that. Judges do not take well to that. And when you get the judge in a bad mood, he or she may tend to rule against you.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
The court said, Judge Boasberg, you issued this order saying stop these flights. The problematic thing that the court said was, okay, you Venezuelans who have sued in Judge Boasberg's court, you're in the wrong court. You need to be in court where you're being held, which is in Texas.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
You need to be using a different theory of law, which is bringing a case under what's called habeas corpus as a practical matter, uh, Things would be much better off for these Venezuelan plaintiffs if they remained in Judge Boasberg's court.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
I think this is the legal doctrine of oopsie. You may remember that the president of El Salvador famously tweeted after the Venezuelans arrived. He tweeted oopsie. And that's a little bit what the administration is saying in the case of this Salvadoran man, which is oopsie. We made a mistake, but he's in El Salvador, so can't really... fix that. First of all, of course they can fix that.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
But I think the thing that is important about this case is not just that it seems like this absolutely scary moment that is happening to this poor guy who was living a perfectly normal suburban life in Maryland. If we take this theory of the case to be true, that there's no recourse to be had once he's in El Salvador, that could happen to any of us.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
They could pick you or me up on the street, even though we're American citizens, and do much the same to us.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
There is going to be a set of cases that come to the court. And the Trump administration, from my point of view, is pretty much guaranteed to win some of them. I'm thinking about cases that challenge the ability of the president to fire the commissioners of independent agencies. That's going to be just a clear win for President Trump. But
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
There's going to be other cases in which I think it's very clear the administration is going to outright lose. The clearest one to me involves its effort to unilaterally, through executive order of all things, rewrite the constitutional guarantee of birthright citizenship. Trump knows he can't get this through Congress, has issued an executive order.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Every court at every level that has looked at it has said this is blatantly unconstitutional. There was a Reagan-appointed judge who basically said to the Justice Department lawyer who appeared before him. I can't believe you have the nerve to come to me and make this argument, though he didn't say nerve.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
And then there's a bunch of cases that range the gamut of the things that we've talked about that are much more jump balls. And I think the picture of where the Supreme Court is going to come down on this is only going to emerge as we fill in the dots and then start to connect them of what the court is and isn't going to tolerate.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
And then on the bottom line question of whether we are going to see the president of the United States outright defying a clear order from the Supreme Court of the United States, it's clear that the administration, as much as it wants to thump its chest and look like it's being tough towards judges, would prefer to avoid that.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
that particular showdown, because I don't think the public is going to take well to that particular showdown. And if the public doesn't take well to it, then Congress might not take well to it. But push may come to shove on that. And we've certainly seen arguments from the likes of the president and J.D. Vance and others suggesting that if they really have to, they will defy.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
I think that their best kind of case to do that on would be a case that touches on national security or a case that touches on immigration and the president's ability to defend our borders against foreign invaders. And I do have those foreign invaders in air quotes because that's the area in which two things are in the administration's favor. One is legal because the courts have said –
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
the president is at the apex of his powers when he is involved in deciding issues of national security, and they're very reluctant to go up against him on that. But the second thing is, it's the area in which he probably has the most amount, the greatest amount of public support.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
There is some authority that I'm not an expert on for the Secretary of State to kind of declare you to be someone we don't want in this country. But as a general matter, it has always been understood that people who are here legally, even if they are not citizens of the United States, enjoy protections under the First Amendment.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
It depends on which authority the government is using. It's going to be a lot harder with the cases that involve the Secretary of State's kind of unilateral authority. But as a general matter, to say that individuals who engaged in pro-Palestinian demonstrations— saying things that you and I, as American citizens, would be allowed to say are somehow no longer entitled to stay in this country.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
I think we've seen the lower courts say, whoa, do not send him back. Do not send her back. We have to take a much closer look at this. And so I think they have a reasonable chance of being permitted to stay.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
I thought that comment really encapsulated everything that is wrong about the Pam Bondi slash Trump lawyer view of the world. If someone is aggrieved and has standing to sue and an argument, they go to court and they get a hearing. That is not an indication of a constitutional crisis in our system. It's an indication of our constitution working.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
You know, if you don't like a court order, there's a solution to it. You appeal it. You don't ignore it. You don't tell the judge he's out of line or he should remove himself from your case or anything else. She's not arguing to the American people. I think she is, like so many people in the Trump administration, arguing to an audience of one.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
Well, we've seen a few cases so far where the chief justice has not aligned himself with the other conservatives. We've seen a few cases where either the chief justice or the chief justice joined by Justice Barrett or Justice Barrett by herself, Justice Barrett being one of the three Trump appointees there. But she's turned out to have a quite interesting independent streak there.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
But when you have a six-justice conservative majority, that means that you have a justice to spare. We're going to see the degree to which the conservative justices are offended, appalled, concerned—find your verb— by the extremeness of the administration's position.
The New Yorker Radio Hour
Will the Supreme Court Yield to Donald Trump?
And as we get past some of the hurdles to getting to the merits, we'll see whether they agree with the administration on things like birthright citizenship or the congressional power of the purse or things like that, where the administration is on the weakest legal footing.