The Supreme Court vs. Donald Trump

Prefer to read? Check out the Audio Transcript

Although the transcription is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription software errors.

Emma Varvaloucas: Why should everyday Americans pay attention to the lower federal courts? 

Stephen Vladeck: Well, I think we just have to look at what’s happened over the first 100 days of the Trump administration to answer that question, the lower federal courts have been at the tip of the sword when it comes to pushing back against the most flagrant abuses when it comes to holding the Trump administration accountable.

And those rulings, for better or for worse, are impacting all of us all across the country.

Zachary Karabell: What Could Go Right? I’m Zachary Karabell, the founder of The Progress Network, joined as always by Emma Varvaloucas, the Executive Director of The Progress Network. And today we are going to look at what is going on with the Supreme Court. So Emma, who are we going to speak to today? Who is our contestant?

Emma Varvaloucas: Our contestant for the constitutional crisis of the moment is Stephen Vladeck. He is a professor of law at the Georgetown University Law Center and a nationally recognized expert on the federal courts, the Supreme Court, as well as national security law and military justice. He is CNN Supreme Court analyst, so you might have seen him on CNN if you watch that.

And he is also the author of One First, which is a substack that tries to decode for your average person all of the decisions of the Supreme Court, so you can check that out. And he also has a book called The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.

Ready to talk to Stephen? 

Zachary Karabell: Absolutely. Let’s do it. 

Stephen Vladeck, it is a pleasure to have you on What Could Go Right? 

You focus as we have introduced you as focusing upon all things Supreme Court. We’re clearly in a time, in the first period of the second act of the Trump show where the court and the Supreme Court is, I think as prominently present in American political consciousness as it’s ever been.

If you had a crystal ball, Trump administration has actually said unequivocally a few times that it will honor all Supreme Court decisions. Trump has said that. The Justice Department has actually put that in writing. Do you think that will hold? 

Stephen Vladeck: I think it will hold in the sense that they will say that they are honoring Supreme Court decisions.

I think we’ve already seen the government play a little fast and loose with what that actually means on the ground with lower courts now, I think the chances are. There will not be this sort of cataclysmic moment where the Supreme Court says, do X, and Trump says no. I think we’re heading more for this sort of soft conflict where the Supreme Court says, do X and the administration does X and a half, or X plus one or X minus one.

We’ve seen that already. I think in the context of the Alien Enemy Act cases. I don’t think it’s gonna end there. I think this is gonna be a narrative that keeps repeating until one side backs down, and I think the question’s gonna be, which side would back down first? 

Zachary Karabell: The pushback on from a lot of Republicans is that if what you said is true, that in and of itself is not necessarily cause for concern.

Give that kind of jockeying over how do you interpret, how much do you honor long predates the Trump administration, and you could make a legitimate argument that during the Biden administration, multiple courts, including the Supreme Court, I believe at one point, pushed back on what statutory authority the Biden administration was using to cancel a whole swath of student debt repayments or just cancel the student loans outright and that there was a lot of, you know, kind of going back to find another loophole and attempt to work around a decision that seemed to say you can’t do that by finding a different way of doing it anyway. You had that certainly during the second Bush administration around some of the interpretations of metadata spying, secrecy.

So again, is there an argument that while Trump seems to evoke very high pitched reactions, that contest that you just described is hardly new to the Trump administration? 

Stephen Vladeck: I mean, I think only if you generalize it at a level of abstraction that makes it very sort of hard to compare apples to apples. I don’t think that what we’re seeing from the Trump administration right now really is comparable to what we saw in the Bush administration or the Biden administration.

You know, the student loans is a good example. When the Supreme Court ruled against the Biden administration on student loans, the administration said, great, okay. And it went back to the drawing board and it pursued a different program under a different statute. Take the Alien Enemy Act cases in contrast. Here, you had the Supreme Court say, you’ve gotta give these guys notice and a meaningful opportunity to be heard before you remove them.

And so what did the Trump administration do? It gave Spanish speakers English language notices and gave them 12 hours to figure out how to somehow file a habeas petition based off of a notice they don’t understand before they’d be removed. I just don’t think if those things are the same thing. But the other point though, and I think this is probably just as important, the kinds of arguments the Justice Department is actually making in court really are different in both kind and degree from what we saw even during the Bush administration.

I mean, we’re seeing justice department lawyers making representations that every single public source I think suggests are false. We’re seeing justice department lawyers refusing to provide information that’s in the public record on the ground, that it’s somehow protected by the state secrets privilege.

And so I understand that there’s an instinct to try to make these superficial comparisons. I just think that when you peel away the layers, even though I don’t think this administration is openly defying federal courts, I do think it is playing a more dangerous game when it comes to walking right up to the cliff’s edge than any of its predecessors have played, and across a far larger and broader number of cases than we saw during any previous presidency. 

Emma Varvaloucas: Stephen, you mentioned in your response to Zachary’s first question that you think this is gonna become kind of like a cat and mouse game between the administration and the Supreme Court. It certainly seems the Supreme Court has been trying to avoid an outright clash up until now.

I mean, they haven’t really gone out of their way to set up that big crisis moment, right? In your view, do you think that the Supreme Court has been too passive up until now, or do you think that they’re right to kind of give the Trump administration the benefit of the doubt in the first few months of his administration?

Stephen Vladeck: Yeah, Emma, it’s a great question. I guess my answer is sort of somewhere in between. I mean, I think the court has done probably almost as much as we could reasonably have expected it to do. I don’t think anyone should be surprised, especially that this court is, in the words of Jack Goldsmith, temporizing a little bit, right?

Is trying to sort of not immediately go headlong into a full on confrontation with the executive branch. I think the question, Emma, is to what end? And so that’s why I think it’s so important to not just focus on what the court has done so far, but to keep an eye on what the court does going forward. We saw this already in the Alien Enemy Act context again, where after the Supreme Court back on April 7th had issued this sort of mixed verdict, right? Hey, the Trump administration, you are right that these cases have to be brought as habeas petitions where these folks are being held. But these folks were entitled to process before you remove them. And then we had that late Friday night, early Saturday morning order on April 19th where it looked like the government was not abiding by that mandate, and where the court said, Hey, stop removing people from the Northern District of Texas.

So my sense, Emma, is that for the most part, I think the court is doing a pretty good job of walking this tightrope, but it can’t walk it forever. And I think this is why we get to a point where what’s tricky about the moment we’re in compared to prior presidencies is that as of now, it really is just the court.

The court has no backstop. The court is not getting support from Congress, for example, in ways it would have historically. And that’s why I worry about the extent to which this is sustainable and if the Trump administration’s not gonna back down. If it’s gonna keep ratcheting up its responses to these adverse lower court and supreme Court decisions, what’s the tipping point?

And when we get to the tipping point, which way do we tip? 

Zachary Karabell: So let’s talk a little bit about some of the precedents. I understand you, you feel some of these risk being superficial. I likely disagree with the superficiality, meaning the historical superficiality in that there’s been a lot of contests between the executive branch and the judiciary.

There’s been a lot of contests between the Congress and the executive branch. If you read Roosevelt’s rhetoric, FDR, about the Supreme Court from the fall of 1936 into the middle of 1937, which I’m sure you’ve had, it’s pretty harsh. I mean, anti-democratic, thwarting the will of the people, unelected elitists. It was kind of a full court press that the court was engaged in a conservative rebellion slash rejection of the will of the people as represented by the New Deal. Lots of these programs, of course, you have the apocryphal Andrew Jackson, the Supreme Court’s made its decision, now let it, let it enforce it about the Trail of Tears in the Cherokee Nation.

It’s not entirely clear he said that, but it’s a great quote that we all use that’s kind of indicative of what you just said before about the Supreme Court not having any enforcement powers, right, it doesn’t have its own way of actually without the executive branch helping it enforce decisions, including those that implicate the executive branch.

There’s been a lot of talk the past few months about the way in which the Trump administration having labeled the Honduran Tren gang and the Venezuelan MS-13 gang terrorist organizations. Then using that designation as a way of going after either green card holders or immigrants in the United States who they claim are members of that gang, to remove them without the same due process that you would have to remove people normally.

But the antecedent to that, right, is a lot of Patriot Act era laws that first create a terrorism list, which we didn’t actually have in quite the, there were some antecedent stat in the 1990s, which then allows the suspension of due process, which was certainly used under the first, under the George W. Bush administration, to do a whole series of sweeping things with people suspected of having some complicity with Al-Qaeda or later on ISIS, including renditions for enhanced interrogation and foreign prisons, let alone the issues of Guantanamo. So, I mean, aren’t we also in a kind of a continuum where we’re much more aware of, I mean, there was pushback in 2006, 7, 8, to those actions as well.

It isn’t part of the problem the laws that we passed at that time, giving almost unimpeachable, I used the pun purposely, powers to the executive branch? 

Stephen Vladeck: I mean, there’s no doubt that Congress, as we’ve seen over and over again over the last 30, 40 years, has given way too much power to presidents, and that’s been true both directly by delegating all of these authorities to presidents, and it’s been true indirectly by not then rigidly exercising oversight powers to ensure that those authorities aren’t abused. 

I still think we can and should be careful to distinguish between what I would absolutely agree were abuses by the Bush administration, for example, and even to some degree by the Obama administration and what we’re seeing today.

So you never saw the Bush administration try to invoke the Alien Enemies Act of 1798, even though there was a much stronger argument that was actually a war that we were engaged in an armed conflict with Al-Qaeda and its affiliated groups in and around Afghanistan and the FATA and other areas in late 2001, early 2002.

But the Foreign Terrorist Organization designation process, as you noted, dates really to the 1990s. I think there are lots of problems with that process. We actually haven’t seen significant efforts by any prior administration to rely on that process as a basis for removing people from the country through our immigration laws.

And so I guess I don’t dispute that’s part of how we got here. I still think that we’re seeing authorities that were passed in times where there might have been slightly stronger arguments for their use being used in ways and in context that they’ve never been before. And so in that respect, I think what we’re seeing today is in some degree the culmination of all of that, but also still, I think, right, different in degree in kind from what we saw back then.

Emma Varvaloucas: Sorry Stephen, I actually wanna circle back around. I realize I have a follow up to the question that I asked. I believe what you ended your response with was, we’ll see if we get to this tipping point and then which way we tip. Right? And I wanted to ask like, is there any other way to tip other than the Supreme Court, we all kind of find out that the judicial check on the other branch is kind of more symbolic than anything else, meaning like does the Supreme Court actually have options if we get to the place where the Trump administration is just defiantly and explicitly ignoring court orders? 

Stephen Vladeck: I think it’s more than symbolic. If we go back through history, I mean, as Zach mentioned, the apocryphal Andrew Jackson quote, but why did Richard Nixon turn over the Watergate tapes? Right? 

The Supreme Court ordered him to, he didn’t want to. He knew what was on them. He knew it would basically be his demise, and he turned them over anyway. Why? Because he was persuaded by his advisors. The political consequences of defying the Supreme Court’s unanimous decision in that case would be just as if not more disastrous.

And so he voluntarily, right, turns those tapes over. I guess I, I am not yet persuaded, and maybe this is just because I’m a law professor and I need this to be true, but I’m not persuaded that a world in which the Trump administration just starts openly defying the Supreme Court is a world in which every single Republican member of Congress goes along.

I don’t doubt for a moment that many will, and that’s a pretty sobering reflection of where we are unto itself. But I mean, you guys know this better than I do. Wouldn’t take that many Republicans in both chambers of Congress to threaten to caucus with the Democrats to at least agree to vote right with the Democrats on key matters, for that to be a lever that would effectively induce the Trump administration to comply. And so I guess I’m just not as cynical, Emma, right, that that like this is where we’re heading. 

And just guys, if you look around, I mean there have been, as we’re sitting here recording this already, somewhere north of like 90 different orders blocking Trump policies in some way, shape or form. We don’t hear about a lot of those because in a lot of those cases. The administration’s compliant and it’s quietly compliant and it’s not loudly appealing, and it’s not loudly making noises about how it can’t be ordered to do the things that it’s doing. 

And that’s not for nothing to me, that’s actually a sign that a lot of what we are reacting to is rhetoric coming out of the White House and a handful of trouble in cases of misbehavior, whether by lawyers or by agencies, but nothing that rises to the level of the kind of pattern that would suggest that the administration’s actually wholly disinterested in complying with adverse judicial rulings. 

Emma Varvaloucas: I love that answer. It’s also the first time I’ve been accused on the show of being a cynic, because normally people are like, oh, you’re a Pollyanna and holding hands, singing kumbaya.

So that was a great diversion from the norm. Thank you. 

Stephen Vladeck: I’m, I’m usually accused of being overly optimistic. One of one of us is gonna. Exactly right. 

Zachary Karabell: So let’s turn to tariffs and the legal underpinnings thereof. There are now, later than I would’ve predicted, a slew of cases that have been filed in various courts, including the US Trade Court, challenging the legal authority of the president to use emergency powers under a few statutes from the 1970s, I guess another from the fifties and other from the nineties, to basically act sweeping across the board tariffs at will.

What do you make of these legally? I mean there, there was I think, challenges in the first Trump administration after 2018 to some of the tariff authority, but then they followed a series of procedures laid down, right, pretty meticulously on the advice of counsel at the time. But the idea that the president can just say, okay, I’m gonna tariff the world at rates that I determine on a fifth grade mortar board is a whole other realm. It seems to be intuitively that a lot of these would appear to have a higher chance of success, but maybe I’m just, maybe that’s wishful thinking. 

Stephen Vladeck: I don’t think it’s wishful thinking at all. So you’re absolutely right, Zachary, about the first Trump administration cases, there was one big case challenge on the Canadian steel tariffs and the Federal Circuit, the federal appeals court that was the highest court to resolve that basically said, listen, the 1962 statute that authorizes these tariffs is specific enough and you know, maybe it’s not good policy, but that’s not for us to say. Two big things have changed since that case and since that context. The first is the Supreme Court has stood up this idea called the Major Questions Doctrine, and the Major Questions Doctrine is the somewhat controversial idea that Congress must speak specifically before it authorizes any executive branch program that implicates what the Supreme Court calls a matter of quote, vast economic or political significance, unquote. There’s a lot of subjectivity in that definition, but I think everyone would agree that these tariffs are of vast economic and political significance, and that was post the first Trump administration. That really was in a 2022 decision called West Virginia versus EPA.

So the first thing to say is that there’s a much stronger argument now that the Congress has to speak clearly when authorizing terrorists like this. 

Zachary Karabell: And that was the overturn of what people call the Chevron decision, right? 

Stephen Vladeck: You never even get to Chevron with the major questions doctrine, because the statute has to be clear in order for the delegation to be valid if the statute’s ambiguous which historically is where Chevron would come in. You don’t even get to Chevron under the major questions doctrine. So that’s thing one. 

Thing two, guys, and Zachary you alluded to this already, is that these tariffs are based on a different statute. So as opposed to the 1962 statute, which really was about tariffs, Trump is now relying upon a statute called the International Economic Emergency Powers Act, or IEPA, which doesn’t mention tariffs at all.

I think that there are much stronger statutory objections to these tariffs than what we saw during the first Trump administration. The real question is whether courts are going to agree, and the reason why that’s a question is because there are a lot of progressive critics of the Supreme Court who criticized and continue to criticize the major questions doctrine as being a sort of subjective thing conservatives made up to strike down democratic policies. In some respects, this is a test case for whether the major questions doctrine really is politically neutral and sort of can be used against Republicans, just like Democrats, I’ll say, because Emma, back to where we were. I presume good faith, I’m an optimist, right? I’m a Mets fan. 

I’m at least cautiously optimistic, right? That if the tariffs, if we make it to a merits decision by the Supreme Court, the tariffs are gonna have real trouble with the Supreme Court’s turn toward this major questions idea. 

Zachary Karabell: So the Loper Bright decision that overturns the Chevron precedent, that has implications too. No? I mean, in the, in this whole. 

Stephen Vladeck: Yeah. I mean, so, so there’s a much broader pattern here guys, of the Supreme Court really in the last three years reconfiguring much of what we would call administrative law. And so getting rid of Chevron in the Loper Bright case means when we get to an ambiguous statute, now courts will decide for themselves whether the statute says what the government claims as opposed to deferring to an agency’s interpretation. But you know, the, one of the remarkable things about the rise of this major questions doctrine is it really turned Chevron into a minor questions doctrine because as opposed to a fight over whether the statute is better read as authorizing the program or not, in a major questions case, if the statute isn’t clear, then the answer is always that it does not authorize the program, and that’s why the tariffs would be in trouble even without the Supreme Court’s limiting of Chevron. 

Zachary Karabell: So on the tariff question, there’s the political dimension as well, which I’ve been wondering about or thinking about, which is why didn’t someone more quickly bring a suit asking for an injunction?

And I suppose there is a political argument. This makes us all suffer a little more economically, but there’s a political argument that it would be better for this to play out with tariffs causing significant economic pain domestically, such that people then turn against the idea that these are either a legitimate exercise or perhaps more important, a smart exercise of executive power.

And then, if the Trump administration doesn’t backtrack as it already has begun, to have the court say, you can’t do this, rather than have the court say, you can’t do this out the gate. 

Stephen Vladeck: Right, before it has any effect. 

Zachary Karabell: And then they can argue, oh, you’re not letting me do this brilliant policy that’s gonna bring back manufacturing job.

Stephen Vladeck: I think it is revealing in that sense, Zachary, that the lawsuits that have been brought to date have principally been brought by conservatives. Right? 

Zachary Karabell: Or Libertarians. Yeah. 

Stephen Vladeck: Or Libertarians. That’s right. I think things be true. I think one, it’s not always easy to run into court and challenge a government policy, right?

Finding the right plaintiff, making sure that you have all of your procedural ducks in a row is actually something that I think is a lot harder than it might look to outside observers. And so many lawsuits fail because those boxes weren’t checked because those i’s weren’t dotted, that I’m not shocked that folks took a beat.

But two, yeah, I think there’s both real world political considerations here. There are relevant legal considerations here. The judges here in these cases, the Supreme Court justices who eventually hear these cases, but they’re not oblivious to the world. There’s a great quote from a Harvard professor, Paul Freund, that judges should be immune to the in to the weather of the day, but sensitive to the climate of the age.

And I think that’s right, and I think that this is a good example of that, that like even if you don’t think that unpopularity should factor into legality, certainly, it’s less likely that federal courts are gonna go out of their way to be creative in upholding tariffs that are both unpopular and economically disastrous than if it were the other way around, or if we just didn’t know.

Emma Varvaloucas: Speaking about unpopularity, we are recording this on the heels of news that the Trump administration has deported two US citizens, two young children. And of course there’s a lot of rhetoric swirling around about Trump saying he wants to deport Homegrowns. I mean, he was talking about criminals apparently.

But now again, with two kids being deported, we’re doing this game where the Trump administration says, no, they had the choice. The mother chose blah, blah, blah. They’re saying that’s not what happened. Anyway, the point is, where do you see this going in terms of what challenges the Trump administration would be facing if they, we are actually about to enter into a world where they proceed to deport US citizens or try to find some legal pathway to deport US citizens, whether criminals or not?

Stephen Vladeck: So the short answer is there is no pathway to deport US citizens. If people are not voluntarily removing themselves from the country, then what is happening is unlawful, and that’s just not really a matter of debate. There are two processes, Emma, by which the federal government can attempt to revoke citizenship and then pursue removal proceedings and then try to expel people from the country depending upon how you gained your citizenship. So if you are born a citizen, what the Constitution refers to as a natural born citizen, the only way the government can revoke your citizenship is through a process called expatriation.

If you come to your citizenship after birth, if you have been naturalized, then the only process is something called denaturalization. And these processes are basically similar with one distinction, which I’ll get to, but the short version is you can’t, the government can’t denaturalize or expatriate as a punishment, right?

That the point is that you, the person, have to have done something to voluntarily relinquish your entitlement to citizenship. So if you looked at the relevant statutes that lay out the grounds on which you can be expatriated or denaturalized. Emma, almost all of them involve voluntary behavior where you have done something that is specifically reflective in intention to reject your US citizenship.

Maybe you fought in a foreign army, declared your allegiance to, I don’t know, King Charles, I mean, whatever it is. The only exception is for those who have been naturalized, who procured their naturalization unlawfully or through fraud. And even there, I mean, what’s critical is that the burden is on the government to establish that on an individual case by case basis in a judicial proceeding.

The government can’t just point at you and say, we think you lied about your affiliation with MS-13, therefore no more citizenship. That’s not how this works. And so we’re back to, I think the same thing we’ve seen with the Alien Enemy Act cases, which is the administration thinks it has this ability to act on a unilateral, perhaps even mass basis.

And the law is just unequivocally to the contrary that yes, the government has the power to take these steps in extreme cases, but only if it goes through these five or six steps before doing so. 

Emma Varvaloucas: What about the birthright citizenship question, which I’m surprised is even a question. The Supreme Court is going be hearing that on May 15. I’m surprised that they’re even entertaining it. So maybe you could shed some light on that situation. 

Stephen Vladeck: So the Trump administration is trying what is, I think, a really sneaky, but also somewhat clever procedural move in the birthright citizenship cases. They’re not actually asking the Supreme Court to uphold the executive order that would narrow birthright citizenship.

All they’re asking the Supreme Court to do is to narrow the lower court rulings blocking that order. So that instead of having a nationwide block on the order, the block would only be for people who have sued to challenge it. That’s a very sort of nerdy attempt to dodge the issue, right? It’s basically a way of trying to say we want the policy to go into effect without you deciding if it’s legal.

I too am surprised that the Supreme Court is even hero oral argument on this. I would’ve thought they would’ve just rejected that out of hand. 

Emma Varvaloucas: Right. 

Stephen Vladeck: The key to me though is even if somehow the court sides with the Trump administration on that nerdy procedural issue. That’s not gonna be because it agrees on the merits.

I think there is a like surprisingly broad consensus across the legal establishment, conservative, liberal, libertarian, that the Trump policy is unconstitutional. I’d be floored if the Supreme Court were to disagree versus taking up this procedural conceit as a way of giving the Trump administration a narrow technical win that doesn’t actually legitimize what it’s doing.

Zachary Karabell: I mean, I had the same question Emma did and the same thought of, it’s surprising they took the case. It would be hard to imagine that they took the case simply in order to do what the Supreme Court did for several decades prior to Dobbs, right, which is continually avoided ruling on whether or not Roe v Wade was or was not presidential by just doing a series of procedural nip and tuck chipping away at the rights.

It’s hard to imagine they took this case in order to do that relative to birthright citizenship. 

Stephen Vladeck: I think that’s right. But the problem is that we have seen a lot of noise from the Trump administration, from congressional Republicans, from their supporters about the, what they call the scourge of nationwide injunctions.

The notion that these district judges in quote democratic backwaters unquote, like Seattle and Boston and Baltimore are having the temerity to rule against the Trump administration on a nationwide basis. That probably has resonated with the Supreme Court, Zachary, a little more than trying to sort of get rid of the policy or trying to get rid of birthright citizenship in general.

But I guess my concern guys, and this goes back to where we started our conversation, I don’t know how much the public will understand that a ruling limiting the scope of these injunctions is actually not an endorsement of the policy, even though I think the justices who voted that way would assume that.

And so we get to this sort of tricky messaging problem that sometimes the Supreme Court will issue a procedural ruling that might have odious substantive effects where the court actually maybe could be blamed for those effects, but not necessarily for upholding the thing causing those effects. I mean, this is a tricky thing for proceduralist law professors to deal with, like the court would not be saying yes, birthright citizenship no longer means what it’s meant for 150 years. But it would be let in at least temporarily this policy that takes it away from some folks go into effect. And that’s splitting that difference, I think is something that’s gonna get lost perhaps correctly on a lot of people.

Zachary Karabell: Although there’s also in your neck of the woods, the Judge Kacsmaryk, who his national injunctions or attempts at various anti-abortion others. 

Stephen Vladeck: I, I mean, Zachary, this is, I mean, this is why the hypocrisy of all of this ought to shame people who I guess are just totally incapable of shame. But I mean, these are the folks who are decrying nationwide.

Injunctions today are the same people who were pursuing, I mean, the number of cases that were brought during the Biden administration in Amarillo, Texas, right, solely so that they could be assigned to this one particular Trump appointed district judge. I know no one is shocked that there is hypocrisy going on in this establishment, but it does suggest that the arguments against nationwide injunctions are not exactly principled.

Zachary Karabell: We hate them when they go against us. We love them when they’re in our favor. 

Stephen Vladeck: Which might suggest, I mean, even Justice Neal Gorsuch, who has been the most publicly outspoken critic of the practice on the Supreme Court, even he has voted in favor of nationwide injunctions more than a dozen times. It doesn’t prove that he’s wrong in his criticisms, it just proves that like this is a more complicated procedural question than folks who are just coming to it for the first time might be led to think. 

Emma Varvaloucas: What happens next exactly in the situation in which the Supreme Court finds this in favor of the Trump administration on procedural grounds? 

Stephen Vladeck: Yeah. I mean, so Emma, what happens is you’ll just have a whole bunch of more lawsuits. It’s exactly what we saw with the Alien Enemy Act cases, so just, we’ve already seen this movie. We are still in this movie. In the Alien Enemy Act cases, the ACLU had tried to bring this nationwide lawsuit in the DC Federal District Court that would try to sort of have all the questions resolved in one lawsuit, one, one ring to rule them all at the beginning of the litigation, Emma, to avoid the very real prospect that you’d have different rules on a district court by district court basis.

And the Supreme Court said, no, you gotta go through habeas. So now what we’re seeing is district by district litigation, where the Alien Enemy Act has been blocked as a source of removal power in the southern district of New York, right, Manhattan, in the District of Colorado, in the Western District of Texas. In the Southern District of Texas. Right? In the district of the Northern District of Texas. Right? And so what would happen, Emma, is not a mass sort of stripping of citizenship. What would happen would be much more complicated, much more retail as opposed to wholesale litigation where maybe we end up in the exact same place, but where there’s confusion and chaos for some period of time in the interim, confusion and chaos that I would not put it past this administration to try to exploit.

Zachary Karabell: So for someone who’s kind of casually followed the Supreme Court for years, an amateur Supreme Court watcher. I’m certainly struck continually by how difficult it is actually to pack the court with people who will then reliably do what you have presumably appointed them to do. Already you’re seeing a court that looks kind of different than the Federalist Society at all thought the court would look like, or at least was promising the court would look like, I think you have a lot of maybe appeals courts where some of that dynamic, the Fifth Circuit in Texas, but this court seems to have like a 7-2 block of, I don’t know, people who are trying to follow some sort of principled interpretation of the constitutional law. Two justices in Thomas and Alito, who seem to be animated by, again, as a casual observer, some level of rage, grievance, and whatever I don’t like I won’t just rule against and then find some rationale for, that’s probably unfair to them, but I feel like I can be unfair. Nobody cares what I think. And yet you did have this immunity decision in the summer of 24, which I found somewhat mind boggling, even given the composition of that court.

So I guess like that’s just a softball question of what do you make of this court? 

Stephen Vladeck: It’s complicated. I hate to sort of start with the trite response, I guess what I make of this court. Is that all of the justices have strong ideological preferences, and when a case is only about those ideological preferences, it does tend to sort them quite neatly into two camps or at 6-3.

But guys, as we’re seeing over and over again, most cases are not just about ideological preferences, right? Sometimes there are broader institutional politics afoot in these cases. Sometimes there are other crosscutting principles at play. I mean, justice Barrett, for example, I think keeps showing that when it comes to textualism as a means of interpreting statutes, she’s gonna follow her methodological commitment wherever it takes her, which is often to the liberal side of the case, right? 

I guess what I come down to is when it comes to the massively important rule of law cases. Where are the five votes to push back against this administration? Right, because that to me is the most important question of all of them, and at least so far it seems like the five most likely votes are the three Democratic appointees, whether for benign reasons or ideological ones, Justice Barrett, again, ’cause I think she is the one who is most committed to following her commitments wherever they take her, and Chief Justice Roberts. 

And Zachary, part of what I think happened in the immunity cases, I think last term we saw a pretty sharp right turn from John Roberts based, I would say, at least in part, on maybe just a lot of naivete. I mean my, I don’t think he expected Trump to win again and approached the immunity case and some of the other decisions in which he was really the key vote from the perspective of, we’re gonna have maybe Democratic hegemony in the White House for a little while. And that was, I think, just a huge miscalculation on his part.

But now Roberts has been among all of the Republican appointees, the most consistent vote against Trump so far. And I think he and Barrett are gonna be holding that line as we go forward. So I guess I’m wary of always pigeonholing the justices categorically. I think it’s very context dependent. But I think that when it comes to standing up for the court as an institution and pushing back against the executive branch, I’m at least cautiously optimistic that right now there are at least five votes.

Maybe we should be horrified that there aren’t at least nine votes for that, but you know, when push comes to shove, five is a heck of a lot better than four. 

Emma Varvaloucas: It’s an interesting take about Roberts. I wanted to ask you, we hit a lot on a lot of like the big cases that are in the news right now, but curious if there are any cases that are upcoming or recent ones that are consequential that you feel like we’re not paying enough attention to that are on your mind.

Maybe Zachary is paying attention as an amateur Supreme Court watcher, but the rest of us probably weren’t. 

Stephen Vladeck: I assume that folks have like a finite capacity of sort of following the Supreme Court and one of the things that has I’m, I think surely happened as a result of this, like completely unprecedented flurry of emergency litigation involving the Trump administration, is that all of the quote, big unquote cases that the court is hearing this year normally have gotten totally pushed aside.

So you know, the, what media coverage there is of the Supreme Court is focused almost exclusively on Trump. And so we haven’t seen nearly as much discussion of a couple of major cases about religion, for example, right? Parents in Montgomery County, Maryland who wanna be able to object to particular books being part of the curriculum in their public schools.

Zachary Karabell: Well, actually, I think technically they wanted to be able to have their children not read the assigned books. 

Stephen Vladeck: Right. 

Zachary Karabell: I’m not trying to be pedantic here, although honestly, your profession is a study in pedantry, so that’s what legal scholars do. So I guess I can be pedantic. It’s not really a book ban case.

They’re not trying to say the books can’t be available, they’re just trying to have their children opt out. There are other book ban cases. 

Stephen Vladeck: I guess the question is, once you are a public school with limited resources with an opt-out policy, isn’t the easier solution just to not even have the book be available?

So they might be implicitly, I, I take the point. There’s also a case the court heard right at the end of April about whether Oklahoma was required to provide funding for religious charter schools that has massive implications for the line between secular and religious education in the country. So, Emma, I think it’s just, it’s the tricky part is that there are a whole bunch of these cases that in any other year would’ve gotten the normal amount of big Supreme Court case attention that at least for the moment, are being totally drowned out by Trump. And I’ll just say like, I get that, like from the scale of the future of our country, I think the Trump cases are probably a little more important than the religion cases, but that doesn’t make those cases less important in how they affect our day-to-day lives.

It’s all just about the relative capacity we have to follow an institution that doesn’t usually make this many headlines. 

Zachary Karabell: Stephen, it’s been a great conversation. Just wondering, do you have any final thoughts? 

Stephen Vladeck: I think just that folks like me, I think have been trying for a while to suggest that much of the most important stuff that the Supreme Court does is the nerdy, technical, pedantic stuff that is hard to translate to non-lawyer audiences.

I think we’re seeing in the Trump cases just how true that is, and my hope is that this doesn’t leave people to sort of give up on the idea that there’s actual nuance and rules here. This is not just all politics, but rather it really is about sort of how an institution that depends upon at least some extent of broad diffuse public support to expect anyone to follow its judgments, pushes back against a president who you know is not gonna push back against by anybody else.

And that’s the, that to me is the remarkable struggle the Supreme Court’s in right now. I probably would wish that we had a slightly different court to meet this moment, but I think there are plenty of folks closer to the president’s preferences who feel the same way. Maybe that’s actually a healthy equipoise where the alternative would be worse.

I mean, you guys ask the right question, What Could Go Right? Right? It’s possible that in this moment having a very conservative Supreme Court that nevertheless has a majority of justices committed to some modicum of institutionalism is actually better than either of the alternatives. 

Zachary Karabell: Right, because they will be seen as, I guess, adhering to the law. 

Emma Varvaloucas: Nonpartisan, quote unquote.

Stephen Vladeck: I think it would be a lot worse, right, if you had a democratic majority right now on the court. And I think it would be a lot worse if you had a majority of justices who were fully committed to finding legal rationalizations for everything Trump is doing. 

Zachary Karabell: Right. Well, that’s a good note to end it. A somewhat upbeat one in a non upbeat time.

I wanna thank you for your time. I think everyone should pay attention to Stephen’s work. He has his own weekly column which we talked about at the beginning, called One First, which is on Substack, and obviously his commentary on CNN and media, but I’m sure you’re gonna be in high demand and needful, bringing needful context to, as you said, complicated, but crucial decisions that appear to be the norm of our day. So I wanna thank you for your insights, your sobriety. Maybe we’ll come back and check out how the year has gone on the other side of these decisions. 

Stephen Vladeck: I’ll just say that the more I’m in demand, the worse things are.

Emma Varvaloucas: Thank you. We do appreciate your optimism though. 

Stephen Vladeck: Thanks guys. Thanks for having me. 

Zachary Karabell: I love these kind of conversations. I find the Supreme Court legal precedent endlessly fascinating, and of course now it’s not just endlessly fascinating. It is incredibly portentous and really crucial to essentially how this is all gonna play out.

It might be better democratically if Congress were more active and less supine. That’s been true for years. So that’s a whole other issue. That’s the nature of Congress and the world that we’re living in today. So the idea of kind of a contest between the executive branch and the judicial branch, you know, it does unfortunately create a sense of, the rest of us are just spectators to two institutions, staffed by a lot of people that no one elected, right?

We elect the president, but everybody else is appointed and including the judiciary. So there’s, I do think it creates kind of a democratic, we’re all just here with our popcorn, you know, watching this play out without necessarily feeling like we have that much recourse. That being said, like this is, this is the time to pay attention to the judiciary, if there ever was one.

Emma Varvaloucas: It’s funny you say that because I am watching Game of Thrones for the first time. Yes. I’m watching Game of Thrones now for the first time. 

Zachary Karabell: Round of applause everybody. Woo. Game of Thrones. Winter is coming, Emma, winter is coming. 

Emma Varvaloucas: Winter is coming. And I had a highly cynical take today watching it where I was like, we’re just in this like veneer of democracy, but this is really just Game of Thrones, like continuing on, but like with less violence, like minimally less violence, but just still feels like we’re in the hands of a bunch of really powerful people and they’re, yeah, I’m definitely eating the popcorn at least when it comes to Game of Thrones. So. 

Zachary Karabell: That may be why it was so successful. And, and, and it started, you know, long before the, the present moments started before the, the second Trump administration.

So that’s an interesting point that it, I wonder if one of the appeals of it is, it plays to that deep seated sense that many people have that. Whatever the veneer is, this is the world. We’re actually in the Game of Thrones world, I mean. 

Emma Varvaloucas: I mean, I super digressed from this, from the actual conversation about the court now, but I, I did learn also recently that George R. R. Martin, I didn’t realize he was a career writer, and that like Game of Thrones was like the last very successful thing in a very long kind of, I don’t wanna say mediocre career, but it wasn’t exactly like dazzling, right? 

Zachary Karabell: Yes. 

Emma Varvaloucas: So there is something to be said about, yeah. Maybe he just hit the moment right.

A very cynical, dark winter is coming moment in American politics. We can’t end on that note, no. I, I will say that I appreciate a lot his point about like, you know, counter alternate universe, in which we had, let’s say six very liberal justices and it turned into a very contentious. You know, uh, like it’s a, a liberal Supreme Court.

It’s packed this, that, and they’re saying like, maybe he is right that if the justices do meet the moment that we’re in, that, that is the, the Panglossian best case of all possible worlds, which we always try to avoid here. But maybe this is actually weirdly enough, the one. 

Zachary Karabell: It’s the Nixon, only Nixon could go to China argument, meaning. In order for these actions to be perceived as legitimate by a percentage of the population who would otherwise perceive them as partisan, you need your kind of your own side to be doing it. The pushback, I mean, I too am more optimistic about the likelihood that this court will in multiple ways kind of hold the line.

Clearly, the immunity decision from the summer of 24 should give one pause in that, like it’s, it’s hard to know what they were thinking. I mean, given that it was a decision, every Supreme Court decision transcends any particular administration. So you can’t just say, well this was done to aid Trump, A, because it wasn’t clear he was gonna get reelected. And B, because it was a precedent that would be set for any president subsequently. 

But it of a confounding decision, I mean, it sort of assumes that every agency and every cabinet and every official within the executive branch would go to the Office of Legal Counsel in their particular department, and that office of legal counsel would be nonpartisan and would interpret the law, and then the president would, and every executive appointee would then follow whatever the office of legal counsel said the executive could, could not do.

As opposed to what you’re clearly seeing, which is you know, appoint a lawyer who will say yes. 

Emma Varvaloucas: Right, right, right. 

Zachary Karabell: To your interpretation of the law, and then let the courts adjudicate, which is kind of what’s happening now. 

Emma Varvaloucas: I mean, it’s interesting what Steve was saying, where again, yeah, like you said, we can’t know what the judges were thinking, but that maybe Roberts was preparing for like, like many people, he is, the Kamala Harris is gonna win.

Or at that time, I don’t remember if she had announced, like if Biden had stepped down yet or not. I don’t remember the exact timing, but he thought for sure that Trump wasn’t gonna be in there again. Maybe that’s the case. 

Zachary Karabell: Maybe. 

So thank you all for listening. Stephen Vladeck really is a great resource if you’re looking for one, to kind of be a sherpa for what’s going on in the Supreme Court and in these various cases, good person to read if you need a deeper dive or some analysis of what’s gone on.

And again, this is gonna be a year where the court is gonna have, particularly the Supreme Court, but also the district and federal appeals courts are gonna have outsized public profile and outsized influence on the arc of the Trump administration’s policies. So we’re all gonna need to be somewhat amateur court watchers in the time ahead to make sense of what’s going on.

And I guess we will all find out exactly what happens when it happens, and we will be here to try to put it in some sort of perspective, hopefully a constructive perspective. And hopefully that perspective of being constructive ends up being justified, ha ha ha, by what goes on in the justice system. 

So thank you, Emma, for co-hosting. Thank you to the Podglomerate. Please let us know your thoughts. And sign up for our newsletter, What Could Go Right? which is free and weekly. So we’ll be back with you next week. 

Emma Varvaloucas: Thanks everyone for tuning in as always.