When President Donald Trump speaks to a joint session of Congress Tuesday night, the audience with the most sway over his second-term agenda won’t be the lawmakers. It’s the Supreme Court justices.
Trump’s blitz of early executive actions have triggered a tsunami of more than 100 lawsuits — many of them heading toward the high court. Two of those actions have already made it to the justices, and their looming rulings could strike at Congress’ power to control federal spending and the independence of executive branch watchdogs.
Trump’s muscular moves to crack down on legal and illegal immigration, fire tens of thousands of government employees, shutter the U.S. Agency for International Development, end diversity, equity and inclusion programs and strip the rights of transgender people all raise significant questions about the legal limits of executive power.
“When a president’s agenda relies on unlawful actions, a lot of the action is going to be in the courts,” said Elizabeth Goitein of New York University’s Brennan Center. “There’s no question that all of this is going to be challenged. This will be a true test of the Supreme Court in many, many ways.”
Chief Justice John Roberts and a few other justices typically attend State of the Union addresses, though the full bench doesn’t always show up. The justices sit in the front row of the House floor, typically putting on their best poker faces while the members of Congress around them cheer and jeer.
In previous years, even subtle reactions by the justices have stoked controversy. And this time, the speech will be occurring while the court is facing two imminent decisions that could affect the trajectory of Trump’s term.
The two major disputes about Trump’s assertions of presidential power at the high court have the potential to deliver another jolt to his rocky relationship with the conservative justices, including the three he appointed in his first term.
One involves Trump’s ability to fire executive branch officials despite laws Congress passed to protect those appointees from removal without cause. The other revolves around Trump’s authority to oversee an abrupt and sweeping freeze on billions of dollars in foreign aid. Trump is likely to discuss in his remarks Tuesday some of these efforts as part of his administration’s work to shrink the federal bureaucracy.
At the heart of both cases is Trump’s desire to test and stretch the outer boundaries of executive power — and whether Trump can bypass laws meant to limit his ability to fire people and curtail programs he doesn’t like despite Congress funding them.
The two cases have another thing in common: They have zoomed to the court on the so-called shadow docket, where the justices handle emergency requests. And more requests are likely given the scores of pending challenges to Trump policies.
Trump’s penchant for executive action driving much of the litigation stems from his desire to be seen as getting stuff done and his impatience with process and congressional negotiations. It’s also born out of necessity.
Thanks to a razor-thin GOP margin in the House and the effective veto that the Senate’s filibuster rule hands to Democrats, the prospects for Trump passing much in the way of legislation are minimal. In crudely partisan terms, Trump’s policies may stand a better chance with the six-justice conservative majority he cemented in his first term than they do across the street at the Capitol.
During his first term, Trump repeatedly trashed judges who ruled against him. His invective against the judiciary grew so pointed that Roberts issued an extraordinary statement disputing the president’s description of a jurist who ruled against the administration’s asylum policies as an “Obama judge.”
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” Roberts declared.
During Trump’s first term, his policies got a mixed reception at the Supreme Court. The court largely upheld his pro-business environmental policies and allowed him to spend billions of dollars on his border wall project despite failing to get funding for it through Congress. On the other hand, the court rejected Trump’s effort to end the program for so-called Dreamers.
One of his highest-profile and most controversial moves — the travel ban dubbed a “Muslim ban” by critics — was effectively slowed and watered down by litigation. The high court ultimately let part of the ban take effect and ultimately upheld the president’s authority to issue it.
“Sometimes, if you listen to the mainstream media, you’d think that the court handed him everything on a silver platter, which isn’t true. But I think [they] went his way more often than not,” said Curt Levey of the conservative Committee for Justice. “At least some of the justices didn’t seem crazy about Trump. If you were predicting it based just on ideology, probably more would have gone Trump’s way. But there seemed to be a certain desire to push back against Trump, right? Until I see otherwise this term, I’ll just assume that it’s going to be the same.”
As his first term came to a close, Trump was bitterly disappointed that none of the justices — including his three picks: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — backed any of the legal challenges to his loss in the 2020 presidential election.
“The Supreme Court, they rule against me so much,” Trump told the crowd at the Ellipse on Jan. 6, 2021. He also complained that the justices were too worried about their standing on the “social circuit.” “And the only way they get out is to rule against Trump. ‘So, let’s rule against Trump.’ And they do that. So, I want to congratulate them,” he said sarcastically.
As Trump was mounting his bid to return to the White House, he often groused about the justices. In 2022, when the court refused to step in to prevent his tax returns from being turned over to a House committee, he made his bitterness clear.
“Why would anybody be surprised that the Supreme Court has ruled against me, they always do!” he wrote on Truth Social. “The Supreme Court has lost its honor, prestige, and standing, & has become nothing more than a political body, with our Country paying the price. They refused to even look at the Election Hoax of 2020. Shame on them!”
At other times, Trump has been almost effusive about the court, particularly on the role the justices he appointed played in overturning the federal constitutional right to an abortion after nearly half a century.
“With the help of six very wise and brave Supreme Court Justices, I was successful in terminating Roe v. Wade – Something which few thought was possible to do!” Trump wrote. (Only five justices actually joined in the decision to end Roe. Roberts, an appointee of President George W. Bush, did not sign onto the majority opinion when the court took that momentous step in 2022.)
Of course, but for a couple of key wins at the high court last year, Trump wouldn’t be speaking to Congress or advancing any government agenda because he may never have returned to the presidency.
In March, the justices unanimously rejected a bid to knock Trump off the ballot in Colorado due to his role in fomenting the Capitol riot on Jan. 6, 2021. And in July, the high court split largely along ideological lines as it upended special counsel Jack Smith’s prosecutions of Trump by ruling that presidents enjoy broad criminal immunity for acts taken while in office. The justices’ ruling helped fuel Trump’s narrative that he was being unfairly persecuted by his enemies.
Trump’s conflicted view of the court and his tendency to harbor perpetual disappointment in the justices was at its clearest in 2023 as he addressed a National Rifle Association convention in Indianapolis.
“They don’t help me much. I’ve got to tell you that. They vote against me too much,” Trump said. “It’s one of those little things in life, right?….They are outstanding people and great scholars, brilliant. And they’ve done a very good job, I always say–-except for me.”
