In the 49 days since President Trump’s inauguration, there have been more than 100 cases brought before U.S. federal courts challenging the administration’s policies and executive orders. These cases span a wide range of contentious issues, including immigration, gender identity, Jan. 6 investigations, and the Department of Government Efficiency.
What do these substantive cases—and their unprecedented number and the speed with which they’re being filed—mean for the future of American democracy? To explore that question, the Karsh Institute sat down with former D.C. Circuit Judge Thomas B. Griffith—appointed by George W. Bush and a member of the Karsh Institute’s Advisory Board—and UVA Law Associate Professor Payvand Ahdout, who clerked for former Justice Ruth Bader Ginsberg.
Q: How have the courts traditionally shaped American democracy?
Griffith: The courts play an important role by reinforcing the separation of powers, which is among the most important features of the Constitution. The Constitution teaches us that the process by which you seek to achieve the good is just as important as the good you seek to achieve. Process is paramount, and I see the courts as playing a vital role in making certain that we stick to that.
The Constitution teaches us that the process by which you seek to achieve the good is just as important as the good you seek to achieve. Process is paramount.
Ahdout: The other role is rights protection. Over time, individuals have been able to go to court to seek to make society more equal. This is something that former Justices Thurgood Marshall and Ruth Bader Ginsburg believed in: litigation brought by groups of people to make the Constitution more inclusive.
Q: How is the Roberts Court upholding the Constitution in this current moment?
Ahdout: The Supreme Court is one thing, but the district courts are more innovative. In the past two decades, they've pressed back by using authority to question government lawyers and force transparency on the executive branch; issued emergency remedies halting government action; and used special judicial rules that permit them to demand more information of the president.
How I'm reading the tea leaves in the Supreme Court is that at least five members are open to traditional review of executive decision-making and executive action. But I don't think that they've yet reached consensus on what that's going to look like.
Griffith: I give the John Roberts Court high marks. We're in an age where we have a court that understands the limited role of the judiciary in our constitutional democracy.
Are there individual cases I would quarrel with? Yes. But the Roberts Court cares deeply about the separation of powers.
Q: What do you think about the speed and number of these cases?
Ahdout: It's a direct response to the speed and number of executive actions coming out of the administration. The first six weeks of the Trump administration feel like we’ve had six years of executive actions.
The first six weeks of the Trump administration feel like we’ve had six years of executive actions.
Griffith: Just last week, I was on a panel with former Justice Stephen Breyer who made the point that the courts are made for deliberation. They carefully consider matters. They hear arguments from all sides, and then they mull it over. That mode of reasoning doesn't lend itself well to emergency decisions.
Ahdout: The Supreme Court seems to want lower courts to tread lightly. But they also want courts to be involved in reviewing executive action. I think that Judge Griffith is right to see that as Roberts Court–esque—to keep the doors open, at least in certain contexts, but to be wary about using judicial power.
Q: What are the underlying principles behind these court cases?
Griffith: The Trump administration has a maximalist view of the power of the executive. This has been argued for decades among intellectuals, but it's never been tested quite like this.
Ahdout: The principle most at stake is stability in the law and rule of law. This Supreme Court has shown that it's more willing than some earlier compositions of the court to revisit and strike down precedents, especially when they're related to individual rights.
We have a Congress that doesn’t seem to be interested in protecting its interests, so what the court has to say about this will be consequential.
Griffith: I'm most interested in what the Supreme Court says about the power of the presidency, about the power of Congress, and the power of the courts. We have a Congress that doesn’t seem to be interested in protecting its interests, so I think what the court has to say about this will be consequential.
Q: Are there comparable moments to this one in U.S. history?
Griffith: It's typical in the first months of a new administration to see a great deal of action on the part of the executive. I think it's way too early to say the sky is falling. We need to let the courts do their work, then I think we'll be in a better position to assess this moment.
Ahdout: At the time that President Richard Nixon resigned in 1974, there were similar worries about a concentrated presidency. I think the speed of court cases today makes it categorically different. And from the era of Nixon to now, Congress and subordinate officials have been less and less willing to stand up to a president from their own party.
Q: What happens if President Trump does not abide by a court ruling?
Griffith: Then we have a constitutional crisis. That phrase is thrown around a lot, but the Constitution has an answer for most of the problems we confront. But if a president disregards an order from the Supreme Court, then that would be a constitutional crisis.
I will note that President Trump has said repeatedly that he will obey court orders. Let’s hope that’s the case.
If a president disregards an order from the Supreme Court, then that would be a constitutional crisis.
Ahdout: I agree, with one addition. Usually, a subordinate official is the one who's in the courtroom. It's not necessarily the president himself.
But if we're going to afford the presumption that government officials will act in good faith and follow the law, and if they start not to do that, it means that they don't deserve the presumption of good faith anymore. That's not quite a constitutional crisis, but it fundamentally alters the relationship between government officials and the courts.