Donald Trump’s expansive executive action has been met with a flurry of court action, as Democratic officials and liberal interest groups challenge each action—with a lot of early success. Can liberals succeed in limiting Trump through the courts or are American courts an inevitably conservative institution? Paul Nolette finds that Democratic Attorneys General have banded together to fight Trump, building on successful action last time. They are able to select the venues and usually win standing, becoming key actors in limiting executive action. But Brian Highsmith finds that over the long run, judicial supremacy tends to advance conservative goals in the American system. Even if Democrats win in the courts now, that may allow the judiciary to develop a longer term constraint on government.
Guests: Paul Nolette, Marquette University; Brian Highsmith, Harvard University
Studies: State Litigation and Attorneys General Activity Database; “Off Balance.”
Transcript
Matt Grossmann: Can liberals stop Trump in the courts? This week on The Science of Politics. For the Niskanen Center, I’m Matt Grossmann. Donald Trump’s expansive executive action has been met with a flurry of court action as Democratic officials and liberal interest groups challenge each action with a lot of early success. But can liberals succeed in limiting Trump through the courts, or are American courts an inevitably conservative institution?
This week I talked to Paul Nolette from Marquette University about his state litigation and attorneys general activity database. He finds that Democratic attorneys general have banded together to fight Trump, building on successful action last administration. They’re able to select the venues and usually win standing, becoming key actors in limiting executive action.
But I also talked to Brian Highsmith of Harvard University about his Perspectives on Politics article with Mya Sen and Kathleen Thelen, Off-Balance. He finds that over the long run, judicial supremacy tends to advance conservative goals in the American system, especially but not exclusively because of its current composition. Even if Democrats win in the courts now, that may allow the judiciary to develop a longer-term constraint on government. In the next Democratic administration, after all, Republican attorneys general will fight each new policy as well, perhaps with new tools they gain now.
Let’s start by reviewing the history of multi-state action against the administration with Paul. So, tell us about the state Litigation and attorney general advocacy database. What’s in it and what are you hoping to achieve?
Paul Nolette: Yes. So, I’m really going for a comprehensive look at what state AGs are up to these days, and they’re up to a lot. They’re frequently in the news, including the national news as they’ve aggressively gone after the administration, currently the Trump administration, on a variety of policy issues. And this has been the case for the last several years where the out-party state AGs have joined coalitions with their fellow partisans to really push back on the administration.
And so, I’m tracking these cases and hopefully providing a resource for academics, for journalists, for others interested in public policy in general, because state AGs have become really these major players on the national level. And in addition to their litigation activities, they’re also doing a lot of work a little bit more behind the scenes on trying to shift the public policy around corporate America.
So, they’ve engaged in numerous investigations of major multi-national corporations, multi-state corporations in which they’ve helped to shape industries, whether that’s the opioid industry and pharmaceuticals, or thinking about big tech. They’ve been very involved there, and so, that database is also looking at that activity as well.
Matt Grossmann: So, as you say, there’s been this big rise in multi-state partisan litigation against the federal government, but it’s not new to Trump. So, tell us about that trajectory, when it rose, when the big inflection points are, and some views of why it has become more common.
Paul Nolette: Some of the earliest activities in terms of multi-state litigation was as far back as the late 1970s and then in the 1980s during the Reagan administration. We started to see some smaller groups of AGs band together to push back on Reagan administration initiatives, particularly on antitrust and the environment.
But things didn’t really start to shift until what I often refer to as the “Big Bang of AG activism”, which was the tobacco litigation of the late 1990s, and this was in fact a bipartisan effort. Ultimately, all of the AGs were involved in one way or another in this effort, but 46 of them signed this major master settlement agreement that completely transformed tobacco and the tobacco industry in America, and it remains the biggest civil settlement in world history, and it’s still paying out to states decades later. And so, that was billions and billions of dollars. It’s been well over $200 billion paid to states from the tobacco industry at that point.
The reason why that’s important is that I think that was the moment when AGs realized if we band together, we can have a dramatic impact on national politics, even if Congress and other federal institutions aren’t involved. And this is what really drew me into the AG world and started studying them. When I started, the tobacco litigation was within the past decade. So, really the mid 2000s is when I really started looking at the AGs.
And what I found fascinating about it is that you have this big settlement that AGs negotiate, it’s nationally applicable, it affects the entire industry. Congress rejected a settlement and they weren’t involved. The FDA didn’t have at the time authority to regulate tobacco, and here you have state-level actors doing that on a national basis. So, it really was an introduction I think to the AGs to the national stage.
After that, after tobacco, they started looking much closer at the pharmaceutical industry, as well as mortgage lenders, especially after the Great Recession. And from all of this activity that was largely bipartisan, a much more partisan type of activity started occurring as well in a much more robust fashion, starting with the W. Bush administration, but then really taking off during the latter part of the Obama administration. And since that time, we’ve seen AGs very frequently and very aggressively going after the opposite party administration.
Matt Grossmann: And what does success look like? Have most of these challenges to federal government actions by these partisan coalitions been effective? And what are the big milestones in terms of when they win and when they lose?
Paul Nolette: Yeah, they’ve been very effective. And in fact, my database indicates that Democratic AGs, for instance during Trump 1.0, had a success rate of close to 80%. Meaning that they had some sort of success at the district court level, circuit court, or in the Supreme Court. Republicans, that success rate has been a little bit lower if we look at the Obama and Biden administrations, but still over 60% of their cases resulted in some sort of success. That might be a preliminary injunction, or a permanent injunction, or winning on the merits ultimately in a case.
So, Republicans and Democrats alike have been very successful in pursuing this litigation in court and ultimately blocking or reshaping policy in a variety of different areas. We saw this in numerous cases during the Biden administration, big ones being a lot of the COVID regulations. So, when it comes to wearing masks on planes, for instance, something within the national jurisdiction. Or healthcare workers having certain COVID restrictions. Mandatory vaccines for military personnel, that sort of thing. A lot of those got blocked in court because of litigation from state AGs.
And much of Biden’s programs in other areas as well, immigration being an example, healthcare. And then thinking about student loans, that big case out of Nebraska that essentially shut down much of the student loan forgiveness program that Biden had proposed, that was originated from litigation from state AGs.
So, we saw a lot of that activity during Biden. Just in the first a hundred days of Trump, we’ve seen a huge number of state AG litigation that’s already had quite an effect in terms of getting preliminary injunctions and drawing more information out from the administration about a variety of different policies. And we’ve seen that with the DOGE cuts as well as immigration and some of the other policy areas that the Trump administration has been pursuing. So, long story short, they’ve been very successful in pushing back and delaying, if not absolutely putting a stop to policy of the opposite party in Washington.
Matt Grossmann: So, one reason that it could have worked is these are just people with a lot of legal resources and they can challenge just like anybody else can challenge. But one reason it might be more effective is because they’re able to get over this barrier of standing more easily because they represent a lot of different units of state government. We know that happened in the student loan case with the Missouri ability to claim a direct harm. How easily have these state AG cases been able to get over that standing barrier, and is that a big reason why they are more active or more successful?
Paul Nolette: It is. So, one of the other major cases to be aware of is Massachusetts EPA, which was during the George W. Bush administration. It was decided by the Supreme Court in 2007, and in that case… It was one of the most important environmental cases, because it essentially required the Bush administration to address climate change. That’s a little broadly stated, but that was essentially what it did, try to spur the Bush administration to tackle the issue, and it also led the Obama administration to be able to address climate change through the EPA regulation.
But one other key part of that case was they had an entire standing analysis about whether Massachusetts could even bring that case in the first place. Long story short, they said yes, and they announced this standing rule for states where they said when states sue, courts should give them “special solicitude”, was the that they used, in standing analysis. So, they said, well, standing analysis didn’t change, but we should give special solicitude. It’s never really been clear what that means, but it is an indication that when states sue that they’re in some ways different than your typical litigant, whether that’s the Sierra Club or a corporate entity.
And really since that time, we’ve seen that reflected in numerous cases where states have been able to pass the standing barrier in ways that I’ll say definitely interest groups have realized, because they’ve increasingly partnered with state AGs on cases because they realize, “Well, they can get into court even easier. So, if we partner with them, it’s a good way to shoehorn our own policy goals into what the states are doing.” So, that standing piece is an important aspect of why state AGs have become more active and been able to get into court more effectively.
One other thing that I’d add to that is in recent years… And this really started taking off with Trump 1.0. We saw it with Biden and now in Trump 2.0’s first hundred days, is that the AGs have the advantage of number one, suing anywhere in their state. So, if you’re the Texas AG, you don’t have to sue in Austin or any major city. You can sue anywhere in the state. And if you’re part of a multi-state coalition, you can sue in any of those states’ federal courts.
And so, the forum shopping that goes on has become more sophisticated over time and has definitely been a big reason why the state AGs have been able to have a lot of success in district court getting injunctions and the like, because they’re essentially able to pick their most favorable courts and most favorable circuits. And so, that’s been a big part of the state AGs’ success as well.
Matt Grossmann: So, if we extend this line forward, it suggests we’re going to get a lot of policy whiplash from one administration to another, and then immediately when each administration is challenged by state attorney generals in the other party. And certainly from Obama, to Trump one, to Biden, to Trump two, that’s been the pattern. So, is there anything that is going to kind of suppress these actions and counteractions, or are we kind of stuck with executive branch overreach followed by attorney general response?
Paul Nolette: The short answer is no. Nothing’s going to change this. And the reason for that is that all the incentives are to sue. They all point in the same direction. I mentioned earlier how somewhere between 60% and 80% of these cases have some level of success. So, if you’re an AG interested in policy change, pushing back on the opposite administration, your chances are good. You’re going to have a substantial impact on these nationally important issues. And of course, many AGs, the old joke is that they’re aspiring governors. And in some ways that joke doesn’t even apply too much anymore. I’d say because the office of the AG in some ways might even be a better position than governor to introduce yourself to the national stage as numerous AGs have done like Josh Shapiro for instance. I mean, Kamala Harris who started on the national stage really as California’s AG. It’s a good political reason to sue as well, to show your constituents in your blue or red state that you’re fighting for them against the opposite party and administration. So the political incentives are there, the policy incentives are there to sue, and there’s not really many incentives to not sue. And in fact, if you’re not suing, if you’re staying on the sidelines, then you’re going to have a lot of your co-partisan saying, “What are you doing? Why are you not joining these coalitions and being active against Trump or Biden or whoever?”
And they’ve become far more aggressive and able essentially to bring these cases sooner. So looking back at some relatively recent history, what’s remarkable is that during the first term of Barack Obama, that entire first year, there were no multi-state AG lawsuits, an entire year. But then we saw with Trump, 1.0 Biden, and certainly now with Trump 2.0, that these cases are immediate out of the box. And what was interesting is that throughout 2024, so even before the election, numerous AGs were saying, “Well…” Democratic AGs were saying, “Well, certainly we hope that Harris wins, but if Trump wins, were going to be prepared.”
And so they had their staff pouring through the Heritage Foundations Project 2025 and all of this to prepare for potential Trump administration. After he got elected and then took office on Inauguration day, they were ready to go for anything. And so we’ve already seen close to 20 multi-state lawsuits just in these first 100 days, which is far more than we’ve seen at the beginning of previous administrations. So to circle back to your question, not only is this not going to stop, but if anything, it’s going to become quicker and more aggressive over time where you have this policy backlash where state AGs are just ready and willing to step in and push back on day one.
Matt Grossmann: So we’ve told this from their perspective, but there’s also the administration’s perspective. And I think many people would say that it’s not like they’re reacting to a flat line here. The first Obama administration wasn’t as aggressive in executive policymaking as was the second, and certainly not as aggressive as the Trump and Biden administrations have. So to what extent are they just serving as a check on a pretty expansive vision of executive power and decision-making that we’re seeing at the federal level? And why aren’t the administrations learning from loss about how much power they have?
Paul Nolette: Yeah, and I mean, it’s a very good point because as you alluded to, presidential administrations, especially as it’s been very difficult to get policy out of Congress, have been relying on executive actions, executive orders on a variety of different policies, whether it’s the environment, immigration, spending cuts and the like. And a lot of these executive actions are… It’s questionable whether the executive branch can do this. I mean, either they’re potentially violating the constitution and constitutional principles. They might be violating the Administrative Procedure Act, which is a feature of most of these AG lawsuits. They’re suing saying, “The administration has violated the procedural rules that they need to do to carry out policy.” And I do think that this can be seen as a way and an effective way in pushing back on an overextension of executive power because it’s clear that Congress isn’t doing that.
Congress is not trying to claw back its powers even like we’ve seen over the last few weeks with spending cuts that should be starting with Congress, but instead the executive branch has been the prime mover and Congress has been fine just letting it go. So I think, who do you have stepping in to push back? Well, you have the state AGs, and they’re, again, representing the state and their residents. So we know that a lot of these spending cuts are going to have reverberations for state and local governments.
And so that gives the hook for these state AGs to bring these lawsuits and say, “We’re going to be affected by this and or our residents are going to be affected by this. Or let’s say universities within our states are going to be affected by various cuts.” That gives them the hook. And as mentioned before, it can be very effective and they have all the incentives to do it. So you have Congress not having the incentive to push back on the administration, but you have the AGs with that incentive. And we’re always looking at political incentives and how these ambitious actors use institutions to achieve their ambitions and their policy goals. And a lot of that action is with the AGs right now.
Matt Grossmann: So we’re having interesting situation in Michigan where the governor is taking a very different approach to the Trump administration than the Attorney General. And some of that may just be personalities, but some of it may be that there’s just different incentives for these institutions. So how do these multi-state actions fit into Attorney General’s broader portfolio and how does that compare to something like a governor where you’re trying to get things out of the federal government, but maybe you have other paths or tools?
Paul Nolette: That question raises one important point that I’d mentioned, which is that in 43 states, AGs are elected independently from the governor and from any other state institutions. So you have these situations like in Michigan where even when the governor and the AG are from the same party, they don’t have to listen to one another. The AG can go in her own direction. And we’ve seen that. And I do think that the incentives are different. For the AGs pushing back through litigation, it’s all pluses. It looks good to your fellow co-partisans to say, “I’m fighting back against this lawless Trump administration.”
For the governor or for any governor, a lot of the state budget is dependent on federal funding. And because of that, taking an all out I’m going to fight perspective is really going to be threatening federal funding. And I think even more so during the Trump administration, we’ve seen a fight with Maine about federal funding as well and cutting off funding because of political disputes. And I think as governor, it is just a harder position to take because if you lose that fight and you end up losing millions upon millions of dollars for your state, then that’s not likely to either help your state or to help you as a politician because it looks like you just lost and you heard the state. The AGs, they don’t have to worry about that. They have their own, and in fact, they create their own budgets in some ways through some of their activities, investigating and settling with corporate entities, which brings in money to the state, but they don’t have to worry about those sorts of trade-offs nearly as much.
So it’s kind of like a blunter tool that they have, litigation and they can afford to be aggressive because that’s what helps them politically as well as policy-wise. There are different incentives there when it comes to the governor’s office and the AG. And in fact, you mentioned Michigan being an example. Another example is Arizona, a similar dynamic that’s going on there between the same party governor and AG. And then when there are opposite parties, which doesn’t happen that much because so many states are either solid blue or solid red, but that’s when fireworks really start to go off because the AG might take a position that’s 180 degrees opposite of what the governor wants.
And sometimes governors try to get involved in the litigation, and then there’s a whole fight about whether they can even do that because in most states, almost all states, either constitutionally or statutorily, the AG has the right to represent the state in court. So even if the governor wants to, if the state AG takes a different position, then that’s the one that’s going to be the one that counts for the state.
Matt Grossmann: So what do we know about the actual logistics of these multi-state actions? I know when interest groups sue, it could just mean that there’s just a sign-on letter basically, and that it’s basically one group doing, it could be true in some of these litigation as well, but there might also be actual resource sharing and comparative advantages of different offices. So how do these look?
Paul Nolette: Yeah, it’s typically they’ll set up a lead state or sometimes lead states, so two or three that will do most of the work. So they’ll be the ones that are actually filing briefs, writing the briefs in the first place, getting involved in discovery and all the parts of the litigation. The other states, let’s say that it’s a 20 state coalition, most of those other states are really not doing a whole heck of a lot in terms of time devoted to these lawsuits. It’ll just be essentially a sign-on. So they’ll sign on to the opening complaint or petition for review, and they won’t have a whole lot to do with the case. They’ll strategically name these lead states in circuits where it’s better for them. So for Democrats, First Circuit, Ninth Circuit, for Republicans, always trying to get into the Fifth Circuit as much as possible because it’s either liberal or conservative leaning, more likely to win when it comes to inevitable appeals from the district courts.
So part of the lead state strategy is get them in favorable circuits. Part of it is definitely resource-based. So it’s no surprise that you have New York and California leading a lot of these suits on the democratic side, Texas on the Republican side, because those are big offices, they have a lot of staff, but there are smaller offices that also have expertise in certain areas. So like the Massachusetts AG office is mid-sized compared to other offices, but they have real experience with environmental cases and education too. So on those issues, Massachusetts will often be the lead state because they have the staff that are really experts and have led these sorts of often complex multi-state litigation before. So it’s a mix of all of those types of things. Forum shopping, the overall resources of an AG office, but then the specific staff resources in particular areas of healthcare, education, immigration, environment, that different offices have real expertise in those areas and more likely to lead cases.
Matt Grossmann: So you mentioned that interest groups sometimes sign on to the same cases or they get merged, but we are used to thinking of interest groups as the main litigants in the extension of policymaking to the courts. So much so that we have this prominent theory of American courts, that it’s about adversarial legalism, that it extends interest group battles from legislatures and executive branch decision-making to the courts. So to what extent is that changing into a kind of more partisan policymaking pattern? And does the attorney’s general rise mean the interest groups decline in this process?
Paul Nolette: No, I don’t think that they decline, but I think the role is a bit different. And so I think one of the really interesting things that has emerged are these networks either on both the conservative side and on the liberal side. Steve Teles had that great book a few years back on the conservative legal movement and how that network came together. I think something similar has happened on both sides of the ideological spectrum with state AGs at the center of a lot of these litigation strategies. So what will happen is that, as you alluded to the interest groups, or they could be corporate entities, whatever it may be, that they join explicitly with AGs on a combined complaint, which is often done for standing reasons because maybe sometimes you need some individuals in there as well as the AGs and that sort of thing. Or they’ll coordinate behind the scenes and then have a-
Paul Nolette: Coordinate behind the scenes and then have a full out litigation assault all in one day. So you have all of these lawsuits being released, basically being filed all on the same day, some by interest groups, some by state AGs, and they can do that strategically by using different types of arguments. It’s almost like an ability to expand your brief. If you’re limited to 40 pages, well, you just have a bunch of interest groups sue as well and you can make all these other arguments. And so it’s almost, again, trying to get those lottery tickets where you’re trying to find the argument that’s going to work and the venue that’s going to work.
So they’ve become a lot more sophisticated, the interest groups and the AGs, and working together, I mean very explicitly now. It was more behind the scenes in the first inklings of this, like with Massachusetts v. EPA, when the Sierra Club NRDC environmental interest groups were working with AGs. But now it’s much more explicit, they’re part of a solid network. And so the interest groups know who their allies are and they know that it’s powerful joining with state AGs because of all their advantages in court.
I mean the interest groups aren’t going away, they’re still a very important part of the litigation landscape without a doubt. But I think the networks look different and the AGs have become more of the center of a lot of these cases with the interest groups filling out a lot of the litigation strategies and essentially acting as allies to AGs as they pursue these policy and litigation goals.
Matt Grossmann: So what’s different in this first 100 days of the second Trump administration? We’ve been talking about this as a continuation of trends, at least from the second Obama administration, but a lot of people are seeing pretty extravagant uses of federal power by the administration and pretty quick actions by the State AGs. So how is it differing this time and what’s new?
Paul Nolette: Yeah. So it’s really an escalation of the trends. So I’d say quantitatively just the number of suits. I mean, again, close to 20 suits, multi state suits, nevermind some of the single state suits that have also happened. I mean, it’s just a huge amount of litigation for the first 100 days, just kind of blowing off the charts even compared to previous administrations.
The other thing is the preparation that has gone into this to allow the very quick action. So I mentioned earlier about Project 2025, how staff members in numerous Democratic AG offices were going through marking up, it’s a very big book and going through the entire thing and saying, well, if this became a policy that the Trump administration pursued, what are our best ways to attack that? And they were essentially drafting complaints before the Trump administration was even sworn into office. So I think the thing that really has changed is the overall sophistication and aggressiveness by which this litigation is occurring.
So if you look back even to the Obama administration and before it was much more like the administration would put out some policy, then the AGs would say, oh, that affects us, let’s take several weeks to analyze this and then come up with a plan. And now it’s like two days after an action is taken, maybe not even two days, the same day, the AGs are out there suing. And yes, the staff are working hard. But if you weren’t prepared, you wouldn’t be able to do that in 24 or 48 hours. But because they’re ready to go, they know what their arguments are going to be, they have their coalition together already, they’re able to sue very quickly. They’re the one institution it seems that can match the speed of the administration. And so I think that’s part of their advantage during this time.
Matt Grossmann: So we’ve learned that attorneys general have quite a few tools to disrupt administrative action, but that constraint on government might work to conservatives advantage in the long term. Let’s now turn to Brian Highsmith who says we should expect judicial supremacy to advantage conservatives.
So tell us about the major findings from your recent article called Off-Balance about how the US courts privilege conservative outcomes. What’d you find?
Brian Highsmith: So thank you for having me. The paper, which is co-authored with Maya Sen and Kathy Thelen, intended to be a sort of high level almost framing intervention into how political scientists in particular conceptualize the role of federal courts in the American policymaking process. And our basic argument is that federal courts in the United States due largely to comparatively distinctive features of their institutional design, have what we describe as essentially a structurally conservative effect or bias on policy outcomes over time. We argue that our particular institutional arrangements results in policy and political outcomes that are on net more conservative, we can talk about what that means, than what plausibly would result from the alternatives that have been adopted in other wealthy countries. And we think that this helps explain some important and enduring features of the American political economy.
Matt Grossmann: So we have judicial supremacy here in terms of interpretation. And we also have you point out this composition effect that relates to the political officials putting these folks in charge. So explain kind of those mechanisms, but why you think they result in more conservative outcomes than liberal outcomes, or if that’s just a consequence of liberals have been more successful in the legislative and executive branches, and so stopping them is more what the courts do than the reverse.
Brian Highsmith: Yeah. So we do, I mentioned earlier that part of the argument, or really our main argument is describing this kind of structural bias or effect of federal courts, and in particular the judicial veto on policy outcomes over time. But we do sort of disaggregate the source of that bias into what we call institutional and compositional effects or conservatism. So our institutional account is really focused on the court’s role as a veto point, operating within a constitutional system that is already characterized by hyper fragmented policymaking authority and opportunities for minority rule.
And then we also argue, and this is a feature that is more or less constant over time, that this is sort of a driven by essentially the constitutional design of our political institutions. But we also point to some, integrate some recent scholarship that identifies kind of shorter term but nevertheless important and potentially long-lasting compositional effects that are really about who is sitting on the bench, as distinctive from the kind of role of the courts within the policymaking process.
Matt Grossmann: And why would that lead to conservative outcomes rather than just kind of status quo bias? So if we have a strongly acting conservative executive and legislative branch or executive or legislative branch, then status quo bias might favor liberal outcomes. So why do you say it has these conservative parts built in?
Brian Highsmith: Well, we think that a status quo bias is in many ways should be understood as a structurally conservative bias on policy outcomes. And here, a way of, by analogy, you can think of other areas in the comparative politics literature that have pointed to a relationship between, for example, the number of veto points in a political process and the availability of redistribution through the policymaking process. And so this is not to suggest that additional veto points will always and inevitably favor conservatives. As you note, this will depend on a number of things, including sort of who is pushing the policy that could be vetoed. But we do think that over time adding additional veto points, and it’s not just us, this is sort of a pretty well established finding in the comparative politics literature that the number of additional veto points does on balance over time prevent active government efforts to, for example, redistribute wealth or to mitigate the inequalities that result from market capitalism and the like.
Matt Grossmann: So you mentioned that some things have changed more recently, we have a more polarized appointment process. And we’ve had Maya Sen before talking about her book that actually took a long time for conservatives to be able to match liberals in the judiciary because of where judges come from. So is it a polarized process that has changed or is it just that conservatives have kind of ascended within the judicial system?
So you distinguish your account from adversarial legalism, which some folks will have heard about as a distinguishing feature of the US court system. And I want you to talk more about that because a part of it is just whether things have changed or whether this was always the case. It does seem like that account had more ideas about, I guess a more pluralistic account of the kind of interest groups that would be involved in the implementation and after implementation. And we have kind of accelerated the level of administrative procedure litigation and the timing that it takes for people to challenge a new policy. So is your view that you have a view that’s different from adversarial legalism or that we’ve evolved in the system kind of away from that point to a new kind of system?
Brian Highsmith: I would say that our account shares a lot of common features with some of the traditional accounts of court’s role in the American policymaking process, including adversarial legalism. But we think that there are some important distinctions. So I’ll talk a little bit about adversarial legalism, but also two of the other dominant schools that we distinguish our account. And by the way, I should note that when I say our account I actually am kind of pointing to an emerging field or view across both political science and especially in legal scholarship. So this is not only our argument here.
So we think that the judicial role that is observed today, and we can talk about what aspects of that have changed over time, is difficult to explain by and in some respects in direct tension with many of the leading political science accounts regarding court’s role in the political process. So those accounts have tended to conceptualize American courts as being either primarily constrained. So of course the classic citation here is Gerald Rosenberg’s The Hollow Hope, which essentially is offering the pretty sober conclusion for progressives that whatever hope the court provides to those progressive reformers is hollow because its impact on policy outcomes is just overwhelmed by the elected branches.
Other accounts, including Robert Kagan’s Adversarial Legalism, acknowledge American court’s central policymaking role, but they have sort of a different gloss on the bias that introduces. So for example, Kagan’s classic account does point to the fact that the courts play a very anomalous, comparatively anomalous central role in American public life. But then concludes that this produces essentially an indeterminate difficult to evaluate mix of costs and benefits, that this essentially adds transaction costs to policymaking, but sort of does not reliably advance one set of interest or another, it just kind of slows things down.
We also distinguish our view from Doll’s classic account, which does recognize courts as really important political players, but then points to the appointments process and says this is true, but essentially the policy views that dominate on the court are going to follow public opinion over time. So we shouldn’t worry too much about this because, again, kind of similar to Kagan, the effect essentially washes out. So we share a lot with actually all of those accounts, but there are some aspects of our story, of our framework in particular about the kind of consequences of these biases that others have acknowledged that we think distinguishes this story.
Matt Grossmann: So in addition to the flurry of the executive action, we’re obviously seeing a flurry of judicial action in the first days of the administration, and it’s now a recurring pattern, at least since the second Obama administration that we get a lot of executive action and then a lot of immediate efforts to stop it, especially from coalitions of state attorneys general, but also from wide interest group coalitions that are sort of ready to challenge it. And it seems that everybody kind of switches sides on the procedural questions here, the Republicans are now complaining about the nationwide injunctions, but Democrats complained about it before. Everybody is kind of innovating a bit in this polarized process, but why shouldn’t we just chalk this up to where you stand on these questions just depends on where you sit, and it’ll change with each administration?
Brian Highsmith: I think many scholars and other observers of courts do imagine that this is all essentially a simple story of it’s good for you right now, and that this is in some ways kind of the dull view of, hey, courts are good for people who are trying to slow things down, and that sometimes is progressive, sometimes is conservatives, and that’s essentially all that we can say. I think what we’re trying to do is to say that even though there might be differences in who is advantaged by, which interests, rather, are advantaged by judicial review, and in particular judicial supremacy, this institutional veto, we can do better than to say as scholars, sometimes it’s good for these actors, sometimes it’s good for those, and we throw up our hands.
I think we can zoom out a little bit and look to learn from the comparative politics literature that has looked at the consequences of institutional designs and found really robust evidence that veto points in particular do over time advantage certain actors over others, that the status quo bias is not a neutral bias, and so I think that I see this… I’ll just, as an aside, I write about primarily state constitutions and local government law. And so, you see a very similar thing with respect to debates about localism, preemption, for example, and there is this idea that essentially sometimes it’s good for the left, sometimes it’s good for the right, well, tell me who’s in charge and I’ll tell you my view.
And I think that actually we can tell a better story about, even though it’s complicated story, about the bias that is introduced by particular institutional designs, that’s a little bit more, that goes beyond saying, hey, it’s a coin toss, it all, it comes out in the wash. So, I think the same thing, what we’re at least trying to do here is to raise the possibility that there are some durable biases, that over time advantage on net certain actors or interests over others.
Matt Grossmann: So, we do have a judicial supremacy more than many other systems, but we also have some differences that make it harder, for example, constitutional review is not automatic, it doesn’t occur before or even after, there has to be a case in controversy, and that means that someone has to gain standing and find the venue to challenge something, and it is interesting that so far, basically, the challengers to Trump administration action haven’t really lost much on any kind of merits review, even in the preliminary phase, but due to concerns about standing or venue, I guess what role is that playing, and isn’t that an area in which our system is giving the courts less power and is relying on the right interest groups to be available to bring the right cases?
Brian Highsmith: Yeah. So, the role of procedural obstacles to litigation, like standing and venue, and we were talking before about the major questions doctrine, it is possible that those doctrines or norms, institutional norms, in certain cases meaningfully constrain judicial action, but again, I would note that those doctrines are, it’s a self-regulation. So, courts are responsible for interpreting, they developed the theory of standing… And sometimes this is written into the statute, and I don’t want to overstate this. But in many contexts exactly what it means to be harmed, or to have the ability to vindicate claims through litigation is determined by judges even when what they’re doing is interpreting statute, regulating those procedural points of access to courts.
And so, I think I mentioned the student loan case earlier, as an example of this, I would point to the Supreme Court’s decision to invalidate President Biden’s efforts to modify and waive student loan debt, the theory, before this litigation was initiated, there was a number of legal scholars said, well, this is going to be really difficult to challenge in court because essentially it’s hard to come up… Taxpayer standing has fallen out of favor, and it’s really difficult to articulate who has been harmed in the way that courts have consistently said you need to prove in order to access courts, or the judicial forum for this type of challenge.
And there was a pretty attenuated case where Missouri said that they were harmed by a speculative harm to a servicer in the state, and the Supreme Court jumped ahead of the traditional process of appeals, and fact-finding was not troubled by that theory of standing, and was able to reach the merits, the decision on the merits, or the question, in that case, and strike down this really major executive action. And so, I think that one way to think about standing is as a meaningful constraint on courts. There’s something to that, for sure, but again, because it is judges themselves that decide when to apply this, and when not to apply this, I think it’s easy to overstate the effectiveness of those procedural limitations on courts themselves, it’s a self-regulation idea.
Matt Grossmann: So, during the Biden administration, there was an effort to respond to some of these concerns to propose reforms to the tenure length of judges, or to the level of appointment power of the president, and internal reforms at the courts as well. Obviously, we don’t want to be the people who’ve switched sides completely depending on which administration is currently in power, but it does seem like some of those might take on a new valence, especially when there is concern that a lot of the ways that elected executives around the world move towards authoritarianism is through taking power over the courts. So, how do those look in retrospect, and how should we weigh those sets of concerns?
Brian Highsmith: It’s a great question, and I think that this is… A lot of my writing is about processes of democratization and backsliding, and this is a constant, I don’t know if tension is the right word, but dilemma, difficulty maybe, where efforts… Even you take very basic widely recognized reforms, that are widely recognized democratizing reforms, like expansion of the franchise, those will advantage particular actors, and at the time when all of those are debated, inevitably there are claims that this is an anti-democratic power grabbing exercise. And I think we should take those concerns seriously, because as you note, this is a very common… This, when I say this, I mean changing the rules of the game is a very common facilitator of, or pattern of power protecting by authoritarians around the world, and across history, but it is also true that changing the rules of the game is what enables democratization, has always enabled democratization.
And so, I think that this is another example of that basic dilemma. And so, we should evaluate particular reform proposals on the merits, and maybe in relationship to some theory about democracy or the policymaking process, the appropriate set of constraints on policymaking actors.
Matt Grossmann: There’s a lot more to learn. The Science of Politics is available bi-weekly from the Niskanen Center, and I’m your host Matt Grossmannn. If you like this discussion, here are the episodes you should check out next, all linked on our website. How the Federalist Society Changed the Supreme Court Vetting Process. How the Supreme Court Shapes and is Shaped by its Public Support. How Court Nominations Polarize Interest Groups. Will Supreme Court Opinions Provoke Public Backlash? And Can Judicial Reviews Stop a Lawless Executive? Thanks to Paul Nolette and Brian Highsmith for joining me. Please check out the state litigation and Ag Activity Database, and read Off Balance, and then listen in next time.