Thomas and Alito Are More Reliable Votes for Trump Than His Own Supreme Court Appointees
· Reason
President Donald Trump dramatically reshaped the U.S. Supreme Court during his first term by appointing three new justices who then made possible a series of far-reaching decisions beloved by legal conservatives, including the narrowing of the reach of the Voting Rights Act and the total elimination of the constitutional right to abortion.
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But none of that means that Trump actually looks fondly upon the Court that he has so thoroughly remade. "This Supreme Court is bullied and cajoled by the Radical Left," he recently fumed on social media, "into making decisions that have set America back at least a hundred years."
Trump is upset for a simple reason: While the conservative legal movement has been winning big at the Court, Trump's own record is rather more mixed. In fact, on three key issues that clearly matter a great deal to him because he keeps bringing them up—tariffs, birthright citizenship, and voting by mail—one or more of his own appointees has ruled against him every time.
According to Trump, such results are evidence that Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett "are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of their original selves." I wasn't there to witness any of those interviews between the president and his nominees, of course, but I seriously doubt that the three jurists ever promised to show Trump the kind of unswerving personal loyalty that he seems to view as his due.
Meanwhile, two other conservative members of the Court, whose tenures predate Trump, did consistently vote in his favor in the same trio of big cases.
What's up with that? What explains why Justices Clarence Thomas and Samuel Alito have turned out to be more reliable votes for Trump than Gorsuch, Kavanaugh, and Barrett, each of whom the president himself put on the high bench?
The short answer is that Thomas and Alito are basically the biggest supporters of executive power on the current Court. In the tariffs case, for example, the question was whether Trump was authorized to wield a type of authority that the Constitution specifically assigned to Congress. On birthright citizenship, the question was whether an executive order could supersede the text and history of a constitutional amendment. And on voting by mail, the question was, again, whether the executive could wield power that was assigned elsewhere by the Constitution, namely, to the states and Congress.
In all three disputes, Thomas and Alito argued that the president was empowered to do exactly what he was trying to do, with no need to worry about the constitutional separation of powers. Trump's judicial appointees, by contrast, were unwilling to go that far three times in a row.
It's not clear if Trump will get to make any more Supreme Court nominations before his second term runs out. If he does, I suspect that he might just craft a loyalty test for any such nominee that will be difficult for any principled jurist to pass.
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