Much of the major changes President Donald Trump has tried to make in his first few weeks in office have already been halted by the courts, from doing away with birthright citizenship to freezing federal funds.
Now, the question is: Will the administration comply? And when will the Supreme Court step in?
On Monday, a federal judge said the administration had failed to comply with his order lifting the federal funding freeze and ordered the government to immediately restore funding. And many are questioning if the administration will comply if the Supreme Court rules against it on a major issue as Trump continues to test the boundaries of executive power.
It’s what Dahlia Lithwick, an author and senior editor at Slate where she hosts their Amicus podcast, says would result in a constitutional crisis — a place many scholars say we are already headed.
Lithwick will be talking about exactly this in March at the John P. Frank Memorial Lecture at Arizona State University’s School of Social Transformation, and joined The Show to discuss what she’s watching for most.
Full conversation
DAHLIA LITHWICK: This is gonna sound self-indulgent, but I'm watching for speed. I think the one thing we learned in the first Trump administration is that nothing happens sort of in ordinary plotting legal due course. Everything is just rocketing around so that you feel like you're, you know, in a video game.
And I think, you know, I always tell people, there are turtles built into the architecture all over the U.S. Supreme Court building because the idea is literally like law has to be slow and plotting at its best. That's what it is. This is not that. This is like turtles on roller skates with rocket fuel.
And so what we're going to see a lot of is what we saw the first time around. Think about, you know, the Muslim ban, think about the effort to put citizenship on the census. Like those cases just rocket to the court. They don't necessarily get heard in the court below, go up on appeal to intermediate court, you know, it's just fast.
And so you're going to just see a lot of, and we, we're already seeing it, you know, in the early weeks of the administration, you know, something will happen, say, the president will say birthright citizenship is not in fact protected in the 14th Amendment. Immediately enjoined in a court below, you know, within two days, that goes up, so the posture is going to be emergency, emergency all the way down.
LAUREN GILGER: It's also an interesting moment to watch the Supreme Court itself because it is an institution that is being questioned for, for lots of reasons: for conflict of interest, for political bias in a way that it probably has not ever before.
Are you watching those two things collide, like Trump coming into office and being ready to test lots of issues like immigration at the highest court level, and this sort of question of public trust in the Supreme Court, which will be deciding on a lot of these issues?
LITHWICK: It's such an interesting question, and, you know, you're exactly right, the courts public approval ratings at this moment are lower than they've ever been since Gallup started polling, right? And that's because of some of the things, the Dobbs decision overturning Roe was hugely unpopular.
The court has, you know, done away with precedent in case after case. And then, in addition to that, we've seen, you know, these questions of, you know, trips from benefactors that are not disclosed and, you know, the justices’ wives getting involved in really kind of polemical political issues that then come before the court. So you're exactly right. We have not, certainly, I think in our lifetimes, seen a moment in which public confidence and trust in the court, across the board, by the way, I mean, it's not, you know, necessarily a conservative-liberal thing. There's just a sense that the court is an entirely political branch.
And the other part of the answer to your question, which is really complicated, is that, of course, it's because the court issued not one, not two, but three rulings at the end of last term that all inflected on this question of January 6th and the insurrection and Donald Trump and his immunity, right. In some sense, the court handed part of the presidency to the president, and they did that doing this very, very broad theory of executive power, right?
For the first time in history, they broadened the idea of presidential immunity. And so in some sense, a lot of what you're seeing Donald Trump doing in his first weeks as president, is saying, “dude, I'm immune. Let's go, you know.”
And so the court almost gifted Trump, not just, you know, the fact that there weren't trials before the election, which is, I think what Jack Smith was hoping, but gifted him this notion that the presidency is sort of above the other branches. And so in some sense, you know, the court has constructed a part of what Donald Trump is now testing over and over and over again in the court.
Which is, can the president simply freeze funding that's been appropriated by Congress? Can the president rewrite the 14th Amendment with a stroke of a pen? And so it's a really interesting symbiotic moment where the court has given huge power to the president, and the president is asking the court for even more.
And as to the question of how the public is going to respond to that, I think we're gonna have to wait and see. I think that we're gonna have to really watch this term, a lot of cases are going to play out. And we're going to have to see if the public thinks that the court and the president are kind of doing an “I scratch your back, you scratch mine” thing.
GILGER: There's lots of talk right now, Dalia, about whether or not Trump will openly defy the Supreme Court if they do not rule his way on any of these major issues he really cares about. Do you see that happening or where do you see, I guess, the courts trying to step in and maybe limit that power that they have given him?
LITHWICK: It's a great question. In some sense that is the textbook definition of what is a constitutional crisis, right? A constitutional crisis is when one branch of government says “stop” and another branch says, “make me.” And we've seen that historically and so whatever is happening now, it's not a constitutional crisis, but if the court, as you say, puts a limit on Donald Trump and says like, “no, you can't do impoundment of funds,” or “no, you can't rewrite what birthright citizenship means,” and he goes ahead and tries to do it, then you are in like quintessential constitutional crisis land.
And the interesting thing to know is that Donald Trump did a lot of this in his first administration, you know, took huge swings. You may remember, you know, he tried to freeze funds, he wanted to, you know, build the wall with Mexico and appropriate money that wasn't there, you know, he did a lot of putting citizenship on the census and time and time again, and I think we forget this.
The Roberts court said no. Even the conservative Roberts court bopped him on the nose, and in fact Donald Trump is one of the losingest presidents in American history as measured against other presidents generally, the courts tend to say, you know what, go ahead and do it. So he actually has a pretty dismal track record at the Supreme Court, at least from the last go around.
And I think the harder question is, he's got different lawyers this time, he's got a different attorney general this time. He's got a lot fewer braking systems than he had the last time. And then the question really is, if they're egging him on, if his legal advisers are saying “swing for the front fences, Mr. President, and if the court says no, we'll do it anyway,” that we haven't experienced before, and that's when even if the court says no. And he goes ahead and does it. That's when we're really in peak constitutional crisis territory.
GILGER: I mean, I guess this is a crystal ball kind of question, but what happens then?
LITHWICK: Well, I mean, then, like, literally, you get, you know, the sending out troops to Little Rock moments.
GILGER: Wow, yeah.
LITHWICK: I mean, those are the scariest moments in American history, is when you have this kind of intra-branch meltdown and the branches seeking to check each other can't do that. And, you know, the sort of grim answer is that that's when the military gets called in.
I think the less grim answer is that, you know, we've seen Congress pretty much willing to let him do what he wants to do in the last few weeks, and I think that might be a moment in which, you know, if the court says no, and the president goes ahead and does it anyway, I think you're gonna see states and the Congress start to resist. And again, And that is textbook constitutional crisis.
That's never a situation in which a healthy democracy wants to find itself, but I think there is a distinct possibility with this maximalist view he has of his own powers, that that's where we're headed.
