The Supreme Court will hear oral arguments Wednesday in Trump v. Hawaii, the long-awaited challenge to President Donald Trump’s travel ban targeting eight countries, six of which are Muslim-majority. It marks a watershed moment for Trump’s presidency: the first time that one of his signature policies will come under the justices’ scrutiny.
Technically, the Justice Department has been arguing cases before the high court on Trump’s behalf for more than a year now. But this one is wholly Trumpian. In 2015, Trump campaigned on a “total and complete shutdown” of Muslim travelers into the United States. He later amended the policy to one of “extreme vetting” to prevent would-be terrorists from entering the country. In practice, the travel ban led to chaos at U.S. airports, nationwide protests, and widespread legal challenges.
Every president’s actions are tested by the court and, occasionally, the executive branch loses. An evenly split court dealt Barack Obama a major blow on immigration in 2016 by blocking his order to protect millions of undocumented immigrants from immigration and allowed them to work legally, and it came within a hair’s breadth of striking down the Affordable Care Act four years earlier. The justices spent years trying to impose some kind of constitutional order on George W. Bush’s Guantanamo Bay detention program. And the court’s ruling in 1997 that Bill Clinton wasn’t immune from Paula Jones’s sexual harassment lawsuit set in motion a chain of events that culminated in his impeachment.
Trump likely will face adverse decisions at some point, too. The question is whether he will respond as his predecessors did: by humbly (or begrudgingly) accepting the court’s will.
Trump has been openly hostile to judicial constraints to an unprecedented degree. Under his watch, immigration officials have defied multiple court orders halting an earlier version of the travel ban, which applied to seven Muslim-majority countries. Before taking office, he launched racist attacks on judges who ruled against him, as president has angrily denounced “so-called judges” who have thwarted him. Neil Gorsuch, after Trump nominated him to the Supreme Court last year, criticized the outbursts as “disheartening” and “demoralizing,” which reportedly prompted Trump to briefly consider withdrawing his nomination.
I’m not saying Trump will defy judicial authority in this case, or even that the justices will rule against him on the travel ban. (The court’s decision in December to lift the temporary junctions against the ban, allowing it to go into partial effect, has led many legal observers to suspect the ban will be upheld.) But the court’s history suggests that he’ll eventually be handed a major defeat by the justices, and Trump’s own history says that he won’t take it well.
For most of Trump’s presidency, the greatest threat of a constitutional crisis has come from the president’s apparent efforts to shut down the Russia investigation. Things fell apart last May when Trump fired former FBI Director James Comey, then told NBC’s Lester Holt he did it because of the Russia investigation and told Russian officials that doing so ease pressured on him. Trump also tried to oust special counsel Robert Mueller twice last year and spent most of this month pressuring Deputy Attorney General Rod Rosenstein.
We’ve been down this road before with President Richard Nixon’s Saturday Night Massacre. But there’s no precedent for what should happen if a president defies the Supreme Court. Only a few historical episodes even come close. The most commonly cited case is Worcester v. Georgia (1832), in which the court sided with Native Americans in Georgia against white settlers who sought to remove them from their lands. President Andrew Jackson is often quoted as defiantly saying to colleagues, “[Chief Justice John] Marshall has made his ruling, now let him enforce it!”
Except, as best as historians can tell, Jackson made no such remark. And regardless of whether or not he said anything similar, no such defiance actually took place. Jeffrey Rosen, a George Washington University law professor, explained the misconception last year:
But his actual remark, to his ally John Coffee, seems to have been: “The decision of the Supreme Court has fell still born ... and they find that it cannot coerce Georgia to yield to its mandate.” Unlike Jackson, Georgia tried openly to defy Marshall, passing a law declaring that anyone who came to Georgia to enforce the Supreme Court ruling would be hanged. Jackson, who had no desire to threaten Georgia with federal forces or openly challenge the Supreme Court, solved the problem deftly by convincing the governor of Georgia to set the missionaries free. The Supreme Court never had to issue an order requiring compliance and the crisis was defused.
Other examples cited by the press hold even less relevance for today’s experience. The New Yorker’s Jeff Shesol took note of an incident where President Thomas Jefferson disregarded a ruling issued by a single Supreme Court associate justice. (Back then, the justices “rode circuit” and traveled to courts around the country to hear appeals.)
In December, 1807, at Jefferson’s insistence, Congress passed the Embargo Act, a drastic—and absurdly self-destructive—attempt to punish Britain for seizing American merchant ships; the act cut off all U.S. exports to any nation. In the Mississippi Territory, produce rotted in barns; in New England, dockworkers and sailors sat idle. Then, six months later, a Jefferson appointee to the Supreme Court, William Johnson, ruled that the President had exceeded his authority. To Jefferson, this marked a bitter betrayal. He took the extraordinary step of soliciting a dissenting opinion from his Attorney General, Caesar A. Rodney, distributing it to the press, and sending it to the customs agents who continued to enforce the embargo.
But the powers and responsibilities of both the presidency and the Supreme Court are scarcely comparable to that era. In all other cases, Jefferson acquiesced to Chief Justice John Marshall’s rulings.
A more notable act of defiance occurred early in the Civil War when President Abraham Lincoln suspended habeas corpus to foil a potential Confederate takeover of Maryland’s government. A case soon reached Chief Justice Roger B. Taney, a pro-slavery Marylander whose ruling in Dred Scott v. Sandford had helped ignite the conflict. While riding circuit, Taney ruled that only Congress could suspend the great writ; Lincoln ignored him and focused on saving the Union. (Some legal scholars have challenged the interpretation that Lincoln defied the court.)
In the modern era, the court’s prestige and public esteem makes open defiance of the Supreme Court far more difficult. The only example that comes close is when, during the Watergate crisis, Nixon refused to hand over the White House tapes to the special prosecutor, citing executive privilege. When the case reached the high court, its members set aside their ideological differences to write a single unanimous opinion that would force Nixon to turn over the tapes. The justices reportedly feared that any dissents or compromises would cause the president to defy the court. In the end, he did not.
There are ways to challenge the court’s power without threatening its integrity. President Franklin D. Roosevelt notoriously pushed through a court-packing bill to increase the Supreme Court’s size, which isn’t fixed by the Constitution. By adding more justices—especially more justices appointed by Roosevelt—he hoped to save his New Deal from further defeats there. But FDR’s effort fell apart in Congress, despite its Democratic majorities. Trump, who has nowhere near FDR’s political skills, lacks the support in the Republican Congress even to overturn Obamacare, let alone do something as extraordinary as restructure the federal judiciary.
In a healthy democracy, other constitutional actors would resist the president’s efforts to flout a Supreme Court ruling. But some top Republicans have shown themselves to be more than willing to bend the rule of law to his whims. Others have demonstrated a more ideological opposition to the Supreme Court’s power.
Texas Senator Ted Cruz, a former Supreme Court clerk, strongly suggested in 2015 that Americans unhappy with recent court decisions on gay rights could simply ignore those rulings as unconstitutional. Later, he argued that the court’s rulings were only binding on the parties directly involved, not on anyone else—a pedantic point that elides how legal precedent works in the American judicial system.
In 2011, former House Speaker Newt Gingrich more explicitly made the case for ignoring the Supreme Court. “I would instruct the national security officials in a Gingrich administration to ignore the recent decisions of the Supreme Court on national security matters, and I would interpose the presidency in saying, as the commander in chief, we will not enforce this,” he told reporters during his presidential campaign. Gingrich noted that FDR had once ordered the attorney general to execute German saboteurs during World War II without regard for Supreme Court appeals. (The court ultimately upheld their death sentences.)*
Outright defiance of the courts is considered heroic by many Republicans. Former Alabama Chief Justice Roy Moore clashed with federal courts twice—once in 2004 for a Ten Commandments monument, and again in 2016 over marriage licenses for same-sex couples—and lost his judicial post on both occasions. National Republicans still supported him after he won the Republican primary in 2017 for a Senate seat vacated by Attorney General Jeff Sessions. Only when reports emerged that he had dated teenage girls in the 1970s did their support waver once again.
It’s hard to imagine a more fertile political environment in which Trump could defy the Supreme Court, if he so chooses. In addition to a stable of political allies who would likely agree with him, the president also enjoys a mostly pliant Republican establishment that’s unwilling to rein him in and a powerful media apparatus that reifies his every decision. These conditions could eventually prove dire for the rule of law and the norms that preserve our constitutional order. All that’s needed is a single tweet: “The Supreme Court’s decision is FAKE NEWS. Let’s see them try to enforce it!”
* This article originally stated that Gingrich “falsely claimed FDR had ordered the attorney general to execute German saboteurs during World War II without regard for Supreme Court appeals.” FDR did order the attorney general to execute the saboteurs, but the court ultimately upheld their death sentences, making the order moot.