Trump and the Conservative Judiciary's Legitimacy Crisis

The Supreme Court has agreed to hear a series of cases testing the authority of government to exercise oversight over Donald Trump. Trump has bitterly resisted turning over certain documents to congressional and state regulators, despite most legal commentators viewing his arguments as frivolous.

Now, historically it has not been the case that a SCOTUS hearing bodes well for an incumbent president on matters such as these. Just ask Richard Nixon or Bill Clinton.

But there is a lot of anxiety in legal circles that this might be different. As Scott Lemieux put it: "Supreme Court to indicate exactly how deeply it's in the tank for Donald Trump."

One thought I've been turning over in my head is the possibility that, in a very real sense, the very legitimacy of the conservative judiciary -- especially (though not exclusively) Trump appointees -- is bound up in them ruthlessly dismissing any legal argument that might delegitimize the Trump administration.

This is not something that's been true of every administration. It's probably a myth to have ever thought of a court as wholly apolitical. But I don't think Bush-appointed judges necessarily thought ruling against the Bush administration threatened their legitimacy; ditto for Obama-appointed judges re: Obama.

The big difference is that with Trump, the issue isn't the possibility that here or there administrative actions fell outside the authority of the law (something that will happen to all administrations, at least periodically). It's not even a matter of losing a "signature issue" (as with, say, Obama and the Affordable Care Act). With Trump, the judiciary is repeatedly confronting legal questions that cut to the heart of his basic status as a legitimate leader of a democratic state. Legitimate in the sense of not being a naked avatar of White Supremacy, as in the Muslim ban and immigration cases. Legitimate in the sense of not being a cesspit of pure corruption, as in the Ukraine/Russia and tax returns cases. It's even more extensive of a legitimacy crisis tham the Clinton or Nixon cases, because with Trump it isn't a discrete case of (serious) illicit conduct, but the possibility that his entire administration is a corrupt, bigoted enterprise.

If you're person whose authority to exercise the judicial power comes from an appointment by Donald Trump, and Donald Trump's entire presidency is fundamentally delegitimated as either a racist or corrupt criminal endeavor, that starts to crack the foundations of one's own authority. What does it mean for, say, Neomi Rao if her very presence on the bench is attributable to a guy who it turns out is basically a mafia don? One shudders to think. And so it becomes incredibly important for judges in that position to insulate Trump (and by extension, themselves) from that conclusion.

Moreover, I think -- while this is more of a stretch -- that this outlook extends to conservative judges who were not appointed by Trump himself. Trump has appointed, by and large, orthodox conservative judges. This is a bit ironic, given that the conservative legal elite prior to 2016 would probably not have comprised Trump's biggest fans -- they were the sorts of conservatives who would have privately and sometimes publicly contended that Trump was a lawless maniac. That Trump has appointed these judges is taken by these orthodox legal conservatives as a welcome surprise. They are resolutely avoiding pondering what it means if the man who they well know thinks of rule-of-law as a speedbump also thinks that the ideal judges to have on the bench are judges who think and act just like them.

What this means is that Trumpism has effectively tied itself to the orthodox conservative legal movement. If Donald Trump had nominated judges of a very different type than those typical of Republican administrations, "smashing the establishment", then the old guard might have turned against them. Instead, like a medieval lord who marries into the family of a rival, he's drawn them inextricably together. The legitimacy of Trump-nominated judges depends on the legitimacy of Trump, and since Trump-nominated judges are generally indistinguishable from other conservative judges, that means that conservative judges generally -- and the entire conservative judicial philosophy -- depends on the legitimacy of Trump too.

(A similar issue, I think, explains why Republican politicians have closed ranks so decisively around Trump. The same voters who elected them elected Trump, and declaring Trump a corrupt racist means admitting that the electoral coalition that approves of corrupt racists also chose them. Of course, Republican politicians also have to be re-elected, which means that they have not just "legitimacy"-based but also quite practical interests in pandering to the electoral coalition that supports Trump).

This doesn't mean that no conservative or Trump-appointed judge will ever rule against him. But it does suggest that they will be fiercely resistant to making rulings which extend beyond the normal wins-and-losses that all presidential administrations take, and instead suggest a more fundamental rot. They will never rule in a fashion that suggests Trump is a flagrant racist, because that would imply that they were the ideal judicial choice of a racist. They will be loathe to allow investigations that would prove Trump corrupt, because that would imply that they were the preference of lawless, bought-out presidency.

The conservative judiciary has to protect Trump in order to protect themselves. Get ready for the wagons to circle once more.