Kate Shaw
Appearances
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And a contributing writer for New York Times Opinion. Enjoy.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
To talk about all of that, I wanted to bring in Jillian Metzger, a professor of law at Columbia Law School, who's been thinking very deeply for a long time about the presidency, the administrative state, and the Supreme Court's relationship to both. Jillian, welcome to the show. Thanks for having me. Okay, so to begin, I thought we could start with a proposition.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Well, there are really two questions here.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And just to make it clear, so maybe as a matter of statutory interpretation, before we get to the Constitution, Trump could demote Powell back to being a regular governor. But the text of the statute isn't unclear or ambiguous as to the 14-year term, right? Firing somebody... chair or not chair, would clearly violate the statute.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Okay, but so you said there's a statutory question, and what about the Constitution?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So in some ways, I think what is most striking about this conversation is that we are having it at all, right?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Fifteen years ago, the idea that the Supreme Court might deign to invalidate the structure of the Fed based on this, at best, I think, historically and structurally and texturally questionable theory about the necessity of presidential control over the whole executive branch is kind of mind-blowing, right? So maybe they would actually...
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
be sympathetic to a challenge of some sort to limits on the president's ability to designate a chair, even if they would say, well, the governors can't be fired just because the president decides by fiat he wants to do that. But in some ways, it just underscores the enormous power that this court has asserted for itself over what our government looks like.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So let's shift gears for a moment. And we have been talking around the Supreme Court, but I want to talk now more directly about the Supreme Court. And I want to do that by asking about the court's recent decision in Loperbright, which is a case that overruled the 40-year-old Chevron decision. Chevron basically said that a
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And there's been a lot of public attention paid to the way that eliminating the rule announced in Chevron will reduce the power of agencies like the FDA or the EPA. But Loperbright is a little bit more complicated than that. Maybe let me start by asking you, when it comes to power, government power, who are the big winners and who are the losers under Loperbright?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
President-elect Donald Trump will enter office in January 2025 with more power and with fewer constraints than any other president in modern U.S. history. Agree or disagree?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So you mentioned the uncertainty about the full kind of scope and meaning of Loper Bright. Is that, do you think, a result of just sloppy drafting on the part of Chief Justice Roberts, who wrote the opinion? Is it something maybe more nefarious? The court wants to sow chaos in the agencies and in the lower courts.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Is it just that the whole thing is a product of a less than fully developed vision of the Constitution, you know, the role of agencies in our constitutional order? Like, what explains the uncertainty you think that remains in the wake of Loeberbright?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So it seems to me that there are a couple of different ways to read the practical consequences of the court asserting this enormous new power for itself. And I take the point that the contours of that new power are actually very unclear as yet. But, you know, I guess I if it's possible to make some kind of predictive judgments at this point, is the result, you know, a weaker administrative state?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Is it an administrative state that is just run by, you know, a smaller and less well-equipped number of bureaucrats that is the members of the federal judiciary? And I guess, you know, do you have thoughts about how this decision interacts with presidential power.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
You talked a little bit about Congress, and I think it's clear that if courts are a big winner here, Congress, depending on how the opinion gets understood, might be a big loser because Congress has made many decisions about what kind of agencies to create, what kinds of powers to give them, what kinds of
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
procedures to tell them to follow and also pass substantive statutes that tell them to do things, identify endangered species, ensure workplace safety, right? Obviously, the list is infinitely long. So, court big winner, Congress big loser. Do we know yet, I guess, about agencies and what about the president?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So I agree that there are certain complexities and I do want to get into some of those. But it seems at the outset as though we do agree that the president's power has been expanded in recent years and recent decisions and that the immunity decision is really a critical piece of that story. Absolutely.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So we have been talking through a number of trends involving pretty radical transformation of legal rules. So we have an ascendant president with few checks, a disempowered or reconfigured administrative state, a hugely powerful Supreme Court sitting atop all of that. And I want to drill down a bit more on this Supreme Court, but first I would like to dip a bit into history.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So you have written about the parallels between this anti-administrative, anti-regulatory Supreme Court and the anti-administrative, anti-regulatory court of the 1930s. Can you tell us a little bit about the court of the 1930s?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So by 1937, the court has largely reconciled itself to the constitutionality writ large of things called administrative agencies and some version of an administrative state. But before that, in, you know, maybe 1935, the high watermark for Supreme Court hostility to the New Deal— I guess, how does that court and its radicalism compare to today's Supreme Court and its radicalism?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And so I think that actually one way to think about a number of recent Supreme Court opinions, maybe first and foremost the immunity opinion, is that they give the president both a sword, new powers, and a shield, new protections from any sort of meaningful accountability.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So I think that prose is woven throughout a lot of recent Roberts Court decisions, that the administrative state is in some sense an existential threat to liberty. And you have argued that this Supreme Court often fails to appreciate the ways that agencies, that the administrative state actually protects liberty. So can you say a little bit about that?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Yeah, but I do think that this court holds a very, very narrow conception of liberty. So you're referring to the kinds of positive liberty government might pursue, environmental protection, consumer welfare, racial justice, gender justice. And if this court does not imagine those as encompassed within its conception of liberty— And I think it doesn't.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I guess it's not surprising that it's deeply hostile to agencies' pursuit of those kinds of projects. Because I don't think it's a random list of agencies that the court has demonstrated its hostility towards. It seems to be the agencies, in particular in the kind of consumer protection and consumer welfare space, where it seems very, very skeptical of agency authority.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So one of the most important decisions that I think operates as both sword and shield is the court's immunity ruling from earlier this year, Trump versus United States, in which the Supreme Court handed Donald Trump sweeping new immunity from criminal prosecution for virtually any official acts taken as precedent.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And the court somewhat gets the cases served up to it. But the hostility is not consistent across all of the different kinds of tasks that government performs.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So you do view all of these moves, we've been talking about them in somewhat disparate ways, as part of an ideologically unified project.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
We hear the phrase the administrative state a lot. And I think a lot of the time it's used almost as a pejorative, right? Like by people who don't like the administrative state. It sounds maybe kind of ominous, maybe like it's not part of the government. It's like some other thing. So I want to give you a chance to offer a corrective. How do you understand what the administrative state is?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Who is the kind of standard bearer for this war on the administrative state on the current court in your view?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I mean, he's not an originalist. And he doesn't have as developed a theory of the liberty that is fundamentally threatened by the administrative state as, say, Justice Gorsuch does. He just seems really hostile, to my mind at least, to some of the more kind of redistributive projects that government engages in that we were just talking about. Is that fair? I think that's fair.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So what did you think was the most significant consequence or implication of that ruling?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
As much as this court seems to endorse the project of reducing, refashioning, reconstituting the administrative state, are there nevertheless areas where you can envision this court acting as a check on some of the second Trump administration's more ambitious designs?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
That Empowerment Control Act theory is one of the many things floated in a recent op-ed in The Wall Street Journal by Elon Musk and Vivek Ramaswamy under the guise of what they are calling this Department of Government Efficiency or DOGE. Does it drive you as crazy as it drives me to hear people refer to this as an actual department?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And even if the president can't do it unilaterally anyway, Congress has to create departments. Congress creates departments. And maybe, sure, if they wanted to, if the next Congress wants to create a Department of Government Efficiency, I guess we will have to call it that. But unless and until that happens, I refuse to.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Right. Yes. Okay. So the so-called doge or the entity, you know, calling itself doge, we can decide what to refer to it as. But what about other suggestions that Musk and Ramaswamy have floated regarding, you know, large-scale reshaping of employment in the executive branch? So...
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
There have been references to things like mass layoffs and departmental reorganizations, though I will note that actually the Wall Street Journal op-ed that I mentioned seems to sort of back away from some of that, focusing instead on things like early retirement incentives, which clearly the executive branch can decide to offer.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
But do you want to just talk in general terms about whether some of the rhetoric that is the most expansive about fundamentally overhauling government employment is even plausible under existing law?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
What about this idea that Trump floated during the first administration and has suggested that he will pursue again in the second Trump administration, which is seeking to end birthright citizenship?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think that's such an important kind of callback to the first part of our conversation. So I think we have this tendency to say, Trump says he's going to end birthright citizenship. Will the Supreme Court let him? And I don't think that's an unimportant question.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And I hope and actually do kind of trust that even this Supreme Court would say, no, of course, the president can't unilaterally end birthright citizenship if he wants to pursue a constitutional amendment. Article 5 does allow the amending of the Constitution. He could push for that. That is the only way to end birthright citizenship. But a lot can happen before you get there, right?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And a lot does happen inside the executive branch. The president has lawyers in the White House. The Department of Justice has lawyers in the Office of Legal Counsel and the entire Department of Justice. And those lawyers swear an oath to uphold the Constitution just like every federal official does. And there are certain constitutional questions that are hard or close.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And I don't think birthright citizenship is one of them. And so Whatever new powers, whatever new sword and shield the Supreme Court has given the president, none of those erase the obligations of executive branch lawyers to the Constitution. I think that's a really important point. I agree. I think that's actually a good place to end it.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
As always, what are three books or articles you would recommend for our audience?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Karen is my colleague at Penn, and it is a beautiful article. Even if you don't think you enjoy reading law review articles or you would enjoy reading law review articles, maybe try this one. It might be an exception. Jillian Musker, thank you so much. Thank you for having me. This episode of The Ezra Klein Show was produced by Elias Isquith.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Fact-checking by Michelle Harris with Mary Marge Locker. Mixing by Isaac Jones with Afim Shapiro and Amin Sahota. Our supervising editor is Claire Gordon. The show's production team also includes Roland Hu, Kristen Lynn, and Jack McCordick. Original music by Pat McCusker. Audience strategy by Christina Samulowski and Shannon Busta.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
From New York Times Opinion, this is The Ezra Klein Show.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
The executive producer of New York Times Opinion Audio is Annie Rose Strasser.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Just to underscore the first thing that you mentioned about the opinion, I continue to be kind of gobsmacked by the breadth of some of the rhetoric about things like the exclusive authority of the president over the investigative and prosecutorial functions of the Justice Department and its officials. Since essentially time immemorial, to my mind at least,
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
there has been a complex and nuanced and subtle set of dynamics and relationships between the I think is something presidents of both parties have engaged in in good faith. And this opinion just seems to wipe all of that away and say all of the power resides in the president. He can direct investigation and prosecution full stop, or at least he can't be prosecuted for any of that.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
There might be some distance between the proposition that he can do whatever he wants and he can do whatever he wants and not be prosecuted for it, right? I think that those two might not be exactly the same.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Oblivious or hostile to the project of maintenance of that separation. Yeah, I honestly don't know which it is. But I do think, you know, you mentioned the focus on the president. And that, I think, is one important question about the sweep of this opinion, how focused it is on just the president personally and how much it will have ripple effects personally.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
involving underlings of the president, right? So on its face, this opinion just talks about the immunity of the president, right? It doesn't say anything about shielding the president's top deputies from potential criminal prosecution. So I guess, is that also how you read this opinion as limited to the president by its terms and on its logic?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Or can you imagine the Supreme Court deciding to expand the immunity it announces in this opinion to encompass top advisors, say?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
of government. It's like, no, he's not. There are two million people in a branch of government. He is enormously important. And I don't think either of us wants to discount presidential power. I actually really do think a powerful presidency is a part of our constitutional tradition, at least now, maybe not from its inception.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
But the idea that he is a branch of government, which is it just seems like you said, is it is it oblivious or is it hostile to the reality of what the executive branch really looks like?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
In recent years, the Supreme Court has handed down a string of decisions that have fundamentally changed the federal government. Court decisions have hamstrung the capacity of administrative agencies, and they have shored up the power of both the president and the court itself.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So, but even if down the road you can imagine this line of thinking resulting in such an expansion, as we sit here, I think it would be rash if I were advising the future president's underlings to assume that they're necessarily going to enjoy the same scope of immunity that the court announces as to the president personally.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think it's such an important point. And there were so many examples from the first Trump term of the possibility of criminal exposure actually operating as this kind of important tool that Trump advisers use to resist some of Trump's most extreme threats. directives or instincts on the grounds of potential future criminal liability, right?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Like, think about former White House counsel Don McGahn, who told investigators that he resisted Trump's entreaties to get him to direct special counsel Robert Mueller's firing on the grounds, according to McGahn himself, that if Trump removed Mueller or interfered with the investigation... that action would be used to accuse the president of obstruction of justice.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
It is very hard after the immunity decision to see how a future White House counsel makes those same arguments to a president determined to push or transgress the boundaries of the law.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So that's a really good segue to the next topic I wanted to turn to. And that is to kind of take this question of presidential control and control over personnel and firing specifically to talk about the FBI director. OK, so last week, FBI Director Christopher Wray said that he would resign at the end of the Biden administration.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
These decisions mean that Donald Trump will be entering office at a time when presidential power has arguably never been stronger or more unchecked. At the same time, Trump has promised to radically transform the federal government. Now, I don't want to make the mistake of ascribing too much coherence to Donald Trump's vision of the federal government or of governance more broadly.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Trump had made it very clear during his campaign that he wanted Wray gone. But there was some question about whether he would and maybe whether he could fire Wray outright. The FBI director is one of a few presidential appointees whose position is designed to be held for a term of years, in his case, 10 years. So these are not people who just serve at the pleasure of the president.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
They're actually meant to be in their position for a set period. Now, there's nothing in the statute that says the president has to provide a good reason before firing the FBI director. But the 10-year term, the legislative history, and consistent practice make clear that one of the goals in creating this 10-year term was to insulate the FBI director from the president.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So, OK, the question of Wray getting fired is now moot, but the question remains as to other officials, members of what we think of as independent agencies like the Federal Trade Commission or the Federal Reserve, who both by tradition and by law have more independence from the president than, say, the secretary of defense or another member of the cabinet.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So, Jillian, can you start by talking about what the older Supreme Court cases have to say about that?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Okay, so we have, through these cases and some others, a pretty well-settled understanding that, at least as to some positions, Congress can decide that there are reasons to give officials a degree of independence from the president, and one way of doing that is to place limits on the president's ability to fire those officials.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And then, around 15 years ago, the Roberts Court begins to really cut back on that reasoning. Tell me about those cases.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
But it is worth taking a hard look at the way the court has reshaped the tools at his disposal and what that could mean for how the federal government might work and what it might be able to do going forward.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So as you're describing the reasoning in those cases, what do you make of the reasoning?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So let's make the question concrete in the context of the Federal Reserve. So the Federal Reserve's members have statutory protections against presidential removal except for cause. During his first term, Trump apparently considered trying to demote or even to fire Fed Chair Jerome Powell, but he never did.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And Biden renominated Powell to another four-year term as chair, and that term isn't up until 2026. So in a recent interview on NBC, Trump suggested he wouldn't try to remove Powell, but he's changed his mind before. So if he did, and if Powell did not just engage in this kind of anticipatory compliance the way it seems that Wray is doing, would the law permit that?
Today, Explained
Trump's judge grudge
So like 20 years after Roosevelt appointed them, you couldn't tell like which Roosevelt justices would be on the right side of segregation and which ones would be on the wrong side of segregation because Roosevelt didn't care about that. What he cared about was the New Deal.
Today, Explained
Trump's judge grudge
And so all of them voted to uphold the New Deal because they were vetted for that. We must begin now to make provision for the future. Chief Justice Roberts was picked because he had really broad, really extreme views about executive power. George W. Bush picked him because what George W. Bush cared about was Guantanamo Bay.
Today, Explained
Trump's judge grudge
And that he wanted to speak with that would uphold his attempt to put suspected terrorists in Guantanamo Bay. And Roberts did vote with George W. Bush on most Guantanamo Bay related questions. Roberts famously broke with the Republican Party on Obamacare. God save the United States and this honorable court.
Today, Explained
Trump's judge grudge
And the reason why is because in 2005, George W. Bush couldn't have known that Obamacare was going to be signed into law in 2010. So we didn't, the White House didn't vet him for that.
Today, Explained
Trump's judge grudge
And so Barrett, the important thing to know about Barrett, she is very, very, very conservative. And on every single issue that Republicans cared about in 2020 when she was appointed, whether it is abortion, whether it is affirmative action, like on all the kind of stuff that Republicans cared about in 2020, she has fallen in line with the Republican Party. But there's now new issues coming up.
Today, Explained
Trump's judge grudge
You know, Trump wants to get rid of birthright citizenship for a lot of people. He is claiming the power to do something called impoundment, where he just cancels federal spending that Congress has appropriated. Those were not issues that were really being discussed in 2020. So the first term Trump White House didn't vet her for that kind of stuff.
Today, Explained
Trump's judge grudge
And surprise, turns out she has her own opinions that are different than Donald Trump's.
Today, Explained
Trump's judge grudge
I mean, I want to be clear again, there aren't that many of them. She's a very, very conservative judge. But there was one really high profile case recently involving USAID, the foreign aid agency that Donald Trump is trying to eliminate.
Today, Explained
Trump's judge grudge
The specific issue in this case was very narrow. A judge ordered the State Department to pay the vendors who had provided services to USAID before the Trump administration started canceling contracts. And it went up to the Supreme Court and in a five to four decision, the court left in place the lower court's order, which said that the government has to pay these vendors.
Today, Explained
Trump's judge grudge
Two Republicans, Roberts and Barrett, crossed over and voted with the Democrats. And so that's why that order remained in effect. That was the big one.
Today, Explained
Trump's judge grudge
The only legal scholar I'm aware of who's really gone after her is a law professor named Josh Blackman. And I mean, funny story, I literally used to fight Josh Blackman. We used to be in a kung fu class together. I've known him for a very long time.
Today, Explained
Trump's judge grudge
Yes. No, I literally used to throw punches at him. He has kicked me in the chest before. As a public intellectual, he tends to take maximalist, MAGA-friendly positions on pretty much every issue. And so he wrote a long piece that was very critical of Barrett and suggested that it was a mistake to appoint her. So on the fringes of the Republican Party, you have people going after Barrett.
Today, Explained
Trump's judge grudge
Trump has fared remarkably poorly in litigation in the last two months. He really is on an impressive losing streak. He's 0 for 3 in the courts of appeals in trying to defend the constitutionality of his birthright citizenship executive order. He has been losing in cases... challenging various aspects of Elon Musk's role in government and Doge and the activities of Doge.
Today, Explained
Trump's judge grudge
And the only reason why I think that matters is because people on the fringes of the Republican Party have a lot of influence within the Trump White House. And so there is a real chance that these sorts of criticisms, I mean, Trump can't remove Barrett, she serves for life, but that it's gonna influence who he appoints in the future.
Today, Explained
Trump's judge grudge
I mean, it's certainly, you know, I never rule sexism out. But like, I think to a certain extent, The Republican Party is spoiled by people like Justice Samuel Alito.
Today, Explained
Trump's judge grudge
There was a study that one lawyer did where he looked at all of the cases that the court has decided over the course of like a 10-year period involving a jurisdictional issue called standing, that like there's some ideological content there, but it should be fairly non-ideological. And what this lawyer found was that in every single case,
Today, Explained
Trump's judge grudge
Justice Alito ruled in favor of conservative parties and against liberal parties. So, like, there are... judges out there who are just rubber stamps for the Republican agenda. And Barrett is not that. Most of the time she's going to reach the same conclusion as Donald Trump's lawyers. Sometimes she does not.
Today, Explained
Trump's judge grudge
And I think what all of these attacks on Barrett are really about are people in Trump's base trying to, you know, rise up and say, no, we are not doing that Barrett thing again. We are not having independent thinkers. We are having loyalists. And like that is what we expect from the White House this time around.
Today, Explained
Trump's judge grudge
I am not smart. I want to make clear I have never once thrown a punch at Amy Coney Barrett. The only physical contact I think I've ever had with her is I probably shook her hand.
Today, Explained
Trump's judge grudge
In the only two cases to reach the Supreme Court so far, those were both like very early stage procedural matters, but he lost both of them. And he's notched a couple of wins in the lower courts, but mostly on kind of procedural issues. Is this person really the right person to be bringing a challenge? So he's losing a lot and he's clearly really unhappy about it.
Today, Explained
Trump's judge grudge
I mean, I think it's the one that he is the most incensed about. That seems clear, right? And so that is the invocation of this 1798 statute, the Alien Enemies Act, that's been used, right, three times, always in wartime, 1812, World War I, World War II, now.
Today, Explained
Trump's judge grudge
They try to make an argument that this Venezuelan gang, TDA, Tren de Aregua, is somehow working in concert with the Venezuelan government in ways that makes them a state actor that we're basically engaged in active hostilities with, because that's the predicate for invoking this old statute, and that that allows essentially the...
Today, Explained
Trump's judge grudge
designating individuals as alien enemies and expelling them, essentially, to this prison in El Salvador. And that has been challenged. And it is before this district judge, Judge Boasberg. And that seems to be the kind of, it's not, you know, there's been some preliminary determinations made, but it's pretty clear the administration is going to lose big in front of Judge Boasberg.
Today, Explained
Trump's judge grudge
But for sure, this is the one that I think has Trump the most spun up based on his social media.
Today, Explained
Trump's judge grudge
Yeah, I mean, he has taken to Truth Social and basically called for Boasberg to be impeached. He has called him a radical left lunatic of a judge, a troublemaker and an agitator, which I don't know this judge, but no, that is not an accurate characterization of him, right?
Today, Explained
Trump's judge grudge
He was put on the D.C., actually local court by George W. Bush and then in the district court by President Obama and then also designated to serve on the Foreign Intelligence Surveillance Court by Chief Justice John Roberts, right? Well-known liberal, right? So, you know, this is not a judge who is in any way a radical left lunatic. It's a preposterous characterization.
Today, Explained
Trump's judge grudge
But calling for his impeachment based on this, you know, preliminary set of rulings is an enormous escalation in terms of the way Trump has been talking about and acting toward the judiciary. Yeah.
Today, Explained
Trump's judge grudge
He has been criticizing federal judges and others, I think including Musk, have called for other impeachments.
Today, Explained
Trump's judge grudge
I mean, I think it's a good question. And judges are very limited in what they can do, right? They can't... take to, you know, public sort of facing communications channels. They don't have a bully pulpit the way the president does. They cannot, you know, tweet or skeet or truth or whatever in their own defense. And so they, you know, they have a lot of power in a very limited domain.
Today, Explained
Trump's judge grudge
And so they can certainly respond if they want in their, you know, discussions with counsel in front of them and in their written opinions to things that are said outside of the courtroom.
Today, Explained
Trump's judge grudge
But like, you know, when if it actually escalates to the point of now, there have been some articles of impeachment already introduced around a couple of these federal judges, whether they go anywhere is a different question. But but I mean, there's the defending themselves in the court of public opinion.
Today, Explained
Trump's judge grudge
But then there's also the possibility that if actually the House gets serious about this, they could actually have to end up defending themselves in, you know, the actual United States Congress against impeachment. Yeah.
Today, Explained
Trump's judge grudge
Pretty infrequently. So there have been 15 impeachments of federal judges. Only eight of them have resulted in conviction. So impeachment is a two-step process. So we say somebody has been impeached if a majority of the House of Representatives has voted to approve one or more articles of impeachment against them. So it just requires a simple majority in the House.
Today, Explained
Trump's judge grudge
And then again, colloquially, we say the person has been impeached. But then they actually just go to the other House of Congress, the Senate, and that's where there's an actual trial that happens. And it requires a two-thirds supermajority to actually convict someone in a Senate trial, which results in their removal from office.
Today, Explained
Trump's judge grudge
And that's happened, I think, in eight of the 15 cases involving federal judges. So impeachment, again, is the first half of the two-step process in the Constitution. And it does not seem impossible to me that we might see federal judges actually subject to real impeachment proceedings in the House, although 67 votes in the Senate is very hard for me to see ever occurring.
Today, Explained
Trump's judge grudge
I don't think so. I think we are close. I think that this kind of, you know, sort of delicate dance in front of Judge Bosberg in which the administration does suggest that it is complying with, you know, a narrow and I think probably wrong, but at least like defensible in like words and like legal sounding language.
Today, Explained
Trump's judge grudge
argument that they weren't subject to this order, they weren't defying the order, they were trying to comply with the order. And so they are at least not saying to the court, you essentially have no power over us. They are maybe inching a little closer to that. I think it matters a lot. They're continuing to make legal arguments and they're continuing to appeal.
Today, Explained
Trump's judge grudge
And I think in some ways, that's when the real red lights start flashing if they stop doing that and simply don't comply. Here, where the president is making claims about national security, The president's power is always understood to be sort of at its apex.
Today, Explained
Trump's judge grudge
And so they think they have the strongest legal footing for suggesting a court has no power over them here than in other spaces where it's obvious that courts absolutely have the power to review and maybe invalidate things the executive branch has done.
Today, Explained
Trump's judge grudge
Yeah. So as you just referenced, July 1st of last year, Roberts authors this opinion granting sweeping new authorities and immunities to presidents and ex-presidents.
Today, Explained
Trump's judge grudge
The Supreme Court last July said that essentially Trump is allowed to commit crimes while he is president. It says that he is immune from prosecution for virtually any criminal act he commits using the powers of the presidency.
Today, Explained
Trump's judge grudge
And I think it sort of hangs over virtually everything that we've seen in the last two months in terms of these extravagant assertions of executive authority and kind of disdain at the idea that courts or any outside institution could act to check a president in any way.
Today, Explained
Trump's judge grudge
It's like there's a straight line between some of the description of presidential power in that Trump versus United States case and sort of the predicament we find ourselves in. So I do think that John Roberts bears a ton of responsibility for the way the administration has comported itself and kind of broadcast its vision of essentially boundless executive power.
Today, Explained
Trump's judge grudge
So it is interesting that Roberts kind of came out swinging after Trump issued this, you know, untruth social, essentially like kind of suggestion that Boasberg should be impeached. Roberts issued this very unusual statement, kind of a rebuke of President Trump.
Today, Explained
Trump's judge grudge
And, you know, it was like measured language came out swinging. It's obviously like, you know, sort of an overstatement, but it is still unusual. The chief justice rarely kind of wades into the political fray in any way other than he issues his opinions. He does like this very, you know, annual year-end report on the state of the federal courts.
Today, Explained
Trump's judge grudge
And that's basically the way he speaks about the court. And so he was obviously worried enough to speak up. Any response from the Trump administration, from the White House? Trump likes to have the last word, but the fact that he did not respond forcefully to Roberts, I think actually did suggest to me that maybe it landed in some way. Like, I don't know that the White House...
Today, Explained
Trump's judge grudge
wants to antagonize John Roberts, at least, you know, kind of directly and explicitly, at least right now. And in some ways, again, to the sort of earlier point, that does suggest that they are still in some ways, like, you know, dwelling in the land of law. And so, so I think that's important.
Today, Explained
Trump's judge grudge
I mean, to a certain extent, it makes a lot of sense. So like one thing that comes up all the time with the Supreme Court is that when a president is picking justices, they pick them hoping that they will fall in line based on whatever issues the president cares about right at that moment. Franklin Roosevelt's justices famously were all over the map on issues of race.