Ruth Marcus resigned from the Washington Post after its C.E.O. killed an editorial she wrote that was critical of the paper’s owner, Jeff Bezos. She ended up publishing the column in The New Yorker, and soon after she published another piece for the magazine asking “Has Trump’s Legal Strategy Backfired?” “Trump’s legal strategy has been backfiring, I think, demonstrably in the lower courts,” she tells David Remnick, on issues such as undoing birthright citizenship and deporting people without due process. Federal judges have rebuked the Administration’s lawyers, and ordered deportees returned to the United States. But “we have this thing called the Supreme Court, which is, in fact, supreme,” Marcus says. “I thought the Supreme Court was going to send a message to the Trump Administration: ‘Back off, guys.’ . . . That’s not what’s happened.” In recent days, that Court has issued a number of rulings that, while narrow, suggest a more deferential approach toward Presidential power. Marcus and Remnick spoke last week about where the Supreme Court—with its six-Justice conservative majority—may yield to Trump’s extraordinary exertions of power, and where it may attempt to check his authority. “When you have a six-Justice conservative majority,” she notes, there is“a justice to spare.”
What legal challenges is Trump facing?
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.
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 mythology, or maybe it was the fact at one point, is that the justices would argue things out in private. Is that fiction at this point?
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
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.
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.
How do you know? How do you do it with the Supreme Court, which at least presents to the world as Vatican-like in its level of secrecy?
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.
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.
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