Many thought the second Trump administration would feature a confrontation between a Supreme Court intent on limiting executive discretion and an empowered president flaunting the rules. Instead, the Supreme Court has largely acquiesced to Trump’s moves, using the shadow docket to overturn lower court actions limiting Trump, even those from Republican judges. Adam Bonica finds that Trump has sought to purge and cut more liberal agencies but has been repeatedly shot down by lower courts. Yet the Supreme Court alone has often sided with the administration, making the courts much less of a check on executive power.
Transcript
Matt Grossmann: The Supreme Court is enabling Trump’s executive power, this week on the Science Of politics for the Niskanen Center, I’m Matt Grossman. Many thought the second Trump administration would feature a confrontation between a Supreme Court intent on limiting agency discretion and an empowered executive flaunting the rules. Instead, the Supreme Court has largely acquiesced to Trump’s moves using the shadow docket to overturn lower court actions limiting Trump, even those from Republican judges.
This week I talked to Adam Bonica of Stanford University about his tracking of the early administration and court actions at his blog on data and democracy. He finds that Trump has sought to purge and cut more liberal agencies, but has been repeatedly shot down by lower courts. Yet, the Supreme Court alone has often sided with the administration making the courts much less of a check on executive power.
How systematic is the administration’s efforts in the bureaucracy, even as Doge has been sidelined? Why, and how, has the Supreme Court enabled it all? Today’s conversation could hardly be more timely and important. I hope you find it informative.
You have been tracking the second Trump administration’s efforts in the bureaucracy, including both the Department of Government Efficiency layoffs and the efforts coordinated with Congress to defund particular agencies. What are the big findings that you found so far? Can we say that there’s been a successful ideological purge here, or a change in the direction of the administration?
Adam Bonica: When the administration started down this path it was very much framed as a push for government efficiency. Anyone familiar with authoritarian tactics, over the last 20, 30 years, knows it’s a pretty common way to frame what otherwise is usually a push towards purging political opponents within the bureaucracy. Empirically, this is something that we can now, at least in the US, sort of look at. We have these useful estimates from Josh Clinton and others that allow us to look at sort of the ideological leanings of agencies, based off of how people who are in the federal government actually view what those agencies are doing, and what those employees are like. This is a quantitative measure that we’re looking at. If you take that, and you have all these agencies that look or rated pretty liberal, and others that are rated pretty conservative, you take that and it becomes this very, very stark lens through which to see what’s happening.
The agencies that first were targeted for mass firings were overwhelmingly those on the left, or were rated, or viewed, as more liberal. Notably, these ratings were put together, I think, in 2020, so before any of this had happened. Two of the most liberal agencies by those ratings were the CFPB and USAID, which of course are two of the hardest hit, the Department Of Education is there too, it’s just a very stark, statistical relationship. It’s just very clear that the agencies that were hardest hit by these mass firings were very much the ones that you would target if you were trying to purge ideological opponents and sort of on place within the federal government that may be opposed or misaligned with the presidency.
Then there’s a question of the funding. When the budget bill came out, you could again look at which agencies seem to be getting money and which agencies seem to be subject to major budget cuts. Again, it’s almost a remarkably clear statistical relationship where the conservative agencies seem to get huge budget increases. Some of the most conservative rated agencies are ICE and CF and the border patrol. Whereas most of the budget cuts were directed at what were liberal agencies.
Through that empirical lens, it’s very hard to interpret these outcomes as anything but an attempt at a type of ideological purge within the government. That’s consistent with most of the other tactics we’ve been seeing as of late.
Matt Grossmann: I noticed that Patrick Wu did an analysis using your data to try to further differentiate to show that it was these knowledge-producing agencies, things associated with the universities, like the National Science Foundation, that we’re getting especially hard hit. Did you subscribe to that pattern? Did you see any other things beyond that about which agencies were getting the most of the ax?
Adam Bonica: Yeah. Patrick’s analysis I thought was very illuminating, on top of the more straightforward left-right ideological analysis. I think it elaborates on the pattern here where government expertise and science, in the US, is, not at least from the level of congress, a like non-political type of activity. There’s very politicized views on science, and scientists, and knowledge generation in academia. That’s been pretty clear for quite some time.
I thought the analysis Patrick did was … An aspect of that is the more liberal leaning agencies tended to be those knowledge producing, so there was a correlation, but I believe he found that there was even an independent relationship there.
My sense is that that’s also part and parcel of the broader pattern that if you’re, A, trying to purge ideological opponents, you also may have some incentives to purge those who are expressly sort of nonpartisan, or sources of authority via the information they create, say the CDC, that may not be doing so for political reasons at all, but may have outcomes, or findings, or recommendations that are going to conflict with what the administration wants, policy-wise. I think that totally slots in and fits into the broader pattern. I’m not as aware of how that has played out in other countries that have faced authoritarian backsliding, but it seems consistent with the broader efforts here.
Matt Grossmann: Just so we don’t get lost in the acronyms, I’ll point out that the Centers for Disease Control is the CDC. The Consumer Financial Protection Bureau was one of those agencies that was a cut the most. You have also been tracking the administration’s gains and losses in the courts, and of course many of these administrative actions have found their way to the courts. The broad pattern seems to be that they’re losing quite a bit in lower courts, even with Republican appointed judges.
What were those broad patterns, and how do you interpret them?
Adam Bonica: Honestly, when I started looking into it … I’ve looked at these types of patterns for previous administrations. Even during the first Trump administration it was just a very … My son and I have a paper that looks at the ideological leanings of the courts and how they react into agency policies. Even during the first Trump administration, you saw a very clear ideological divide where Republican-appointed or conservative judges were ruling with the administration most of the time, and liberal judges were ruling against it.
Here, when I went to run the analysis, and this was back in, I think, March for the first time, I was expecting to find the same thing. I was actually quite shocked when I saw that there was very little differentiation. The likelihood a district judge was imposing an injunction or ruling against the second Trump administration was basically uncorrelated with judicial ideology. That’s actually not a common pattern you see in contemporary politics.
When I ran the numbers, and I’ve updated them more recently through July, and the overall pattern is quite out of the ordinary. Just as some context, when the government is a defendant in a lawsuit, the federal government, or the White House, they generally win those cases. They’re very advantaged, there’s this relationship with the solicitor general. This is sort of a well-known pattern that it’s hard to sue the government, in this context, and win.
Right now what we’re seeing is a very different pattern. So far, if you break down all the specific rulings, not just the cases, but specific rulings that judges have made, 133 have been favorable to the administration, and 481 have been against the executive. There’s been a huge number of nationwide injunctions that have been placed by the lower courts. Beyond that, the ideological divide is even among Republican judges they are ruling against the administration 64% of the time. Many Trump-appointed judges are also issuing rulings pushing back against administration policies.
I’m happy to talk about what those patterns likely reflect or mean.
Matt Grossmann: Yeah. Well, let’s just sort of start a little bit with what they are, because I know many of these cases haven’t finished yet, so a lot of these are kind of preliminary types of rulings. Yeah. What kinds of ways are judges ruling against the administration, and what do you think that means?
Adam Bonica: So it’s pretty broad. Just for, again, some context. During the entire Biden administration, I believe there were like 14 or 15 nationwide injunctions placed on Biden policies. Every single one of those came from a Republican judge.
Here, in the first few months of the Trump administration, the number of nationwide injunctions, which is basically a statement that what’s happening, it’s a constraint or check on the executive saying that some policy that the executive branch or the White House has put into place is not valid and needs to stop, until usually further judicial review. It’s a pretty big step, it’s not taken lightly, it’s not a common thing, but we’ve seen dozens and dozens of cases, I think it’s in the sixties or seventies in the number of nationwide injunctions that these judges have put on these cases.
A lot of them are about very fundamental issues of not just sort of our constitutional order, but human rights and a democratic order, more generally. Some of the more high profile ones have been about the government’s deportation efforts without legal precedent or representation, deporting people to countries that they’re not from with no due process. These are pretty major types of basic human rights that are respected by [inaudible 00:12:51] liberal democratic order that exists at the international level.
A lot of them have to do with the types of actions that were happening. So can a president just single-handedly dismantle an entire federal agency? If you had asked that question four years ago or 10 years ago, the answer would’ve been absolutely not. There’s a whole number of reasons and precedent that that’s just not something they can do, it’s completely out of whack. Can they just mass fire people without cause? That’s another sort of type of action that the administration has been challenged on and has lost in the courts, repeatedly. There’s a wide range.
The majority of the major policies that the Trump administration has engaged in, including their sort of crackdown on immigration efforts, what we were talking about before, the sort of purging of the federal government, those have all been very, very much featured within these nationwide injunctions.
Matt Grossmann: So despite losing at the district and appellate level. The administration has done a lot better at those cases that have made it to the Supreme Court in some fashion. So one way to interpret this would be that the Supreme Court is just well to the right or well to the Trump side and all the other courts. Another way is that they’ve been strategic in which cases they appeal all the way to the Supreme Court. How do you interpret that? And I guess, what does that say about the state of all of these rulings? Are there so many that the Supreme Court will not be able to keep up or have they been able to pick and choose and get their way?
Adam Bonica: Yeah, so I’ll start with the first aspect of the question of does this just reflect some sort of strategic behavior by the administration? And there’s two reasons why I would say the evidence points to the answer to being no. One that they’re appealing basically everything. There’s not a lot of these cases that they are not appealing to the Supreme Court in one way or another. Secondly, the types of cases are going to Supreme Court are just beyond the pale compared to anything we’ve seen in previous administrations. Again, these are about basic human rights and well-settled constitutional law that’s being challenged. Basic elements of elections and democratic institutions are also being challenged. So it’s the types of cases that they are elevating to the Supreme Court are very aggressive. And the other bit of evidence that you would think that would point towards it not being particularly strategic in terms of the cases they’re picking, is that the way that the lower court judges, including many Republicans, are responding to the legal arguments that the administration is presenting.
So I put together a list of quotes. I did a big statistical quantitative analysis of judicial quotes about the administration for cases that were in the broader data set of the executive judicial conflict. And the judges are just pointing out there is no merit to this case and pointing to there’s no way that this has any legal standing. They talk about how disingenuous the lawyers are, how they’re outright lying in a lot of these cases. One judge, Judge McConnell said, “It’s very clear when the administration was freezing these congressional funds that the executive puts itself above Congress.” which is a big statement. A lot of the statements the judges are making are about specific separation of powers claims, where they’re saying you’re impeding on the powers of either Congress or the courts in ways that you would expect the courts to defend their institutional power in this case.
And they are very much at the lower level. But when it’s being appealed to the Supreme Court, we’re just seeing the opposite pattern. So there’s a period between April through May where of the cases that were being ruled on by district courts, if you remember that slew of cases that were ruled against the administration. It was like 90% of them at the lower level were being decided against the administration. And these were, if you read the cases, they’re not… Well, the legal precedent is not on the side of most of them. But then when they go to the Supreme Court, the Supreme Court has been ruling in favor of them almost with the exception of one case earlier on.
The Supreme Court has been ruling pretty much uniformly in favor of the administration and often in ways that they provide no context to why they’re ruling that way, but they’re granting this relief and it’s really quite striking when you see the statistical evidence that it’s hard to draw any conclusion other than the Supreme Court is doing whatever it can without going too far to advance the broader efforts, especially when it comes to dismantling the existing constitutional order. It’s really quite striking. And again, I think some of the best context for this comes from what these judges are saying. They’re ringing the alarm bell pretty loudly.
Matt Grossmann: And you have also compared what the Supreme Court has been doing between the Trump and the Biden administrations. And it does not seem to be the case that they’re just trying to reign in lower courts in general. This is a much more Trump-specific phenomenon that they’re intervening. What’d you find there and how do you interpret that?
Adam Bonica: When I looked at that data, what I found, so just as a quick note, there’s different ways to categorize it. So I’m looking specifically, I’m a political scientist. I’m much more interested in the political and power implications of what’s happening. And so this can be different than what a lot of legal scholars are looking at, which is a more procedural oriented when things are appealed for emergency relief, how often are you finding relief? So I was looking at the number of nationwide injunctions that had been placed on the administration as a denominator versus the number of those that had been actively lifted by something the Supreme Court did, either through a merit ruling or through the shadow docket. And so far, just within the first six months of the Trump administration, they have managed to lift in one way or another about 77% of the lower court injunctions on the Trump administration.
For the Biden administration, again, the number of injunctions were far fewer between, and they had a much more partisan flavor to them, and they were not as extreme in the types of things they were asking. They were asking for control over, to remove razor wire from the border and things like that. It was just a different level of ask, and it was only 10% of the time that the Supreme Court actively intervened to lift those injunctions. There was one more case, but it happened three days after Biden had left office. And so even there, you see this really stark difference, and that took four years for them to lift those three injunctions, whereas they’re moving very fast for the Trump administration.
Matt Grossmann: But let’s first understand the procedural dynamics here because a lot of these decisions are being made on the shadow docket or emergency docket. They’re not coming with reasoning in many cases. Some cases we get the reasoning for the dissent, but not for the action. So put that in context for us. How much is this just about a general increase we’ve been seeing over time and a workload issue for the court, and then how much is specific to the second Trump administration?
Adam Bonica: So yeah, I think it’s a little bit of both because we have been seeing a growing use. So the shadow docket is specifically a procedural lever that the administration can use to say, “Look, our policy has been blocked by the lower courts. We need emergency relief. Can you at least lift the injunction until you have a chance to rule on the merits?” And so as a institutional feature, it’s not in itself I would say a troubling feature of what the court’s doing, but the way it’s been implemented, especially in the last six months has been very different in terms of how powerful it is. So basically the idea that because this court is not ruling on the merits and they’re basically delaying that process and saying, you can proceed with your policy until we say you have to stop. That just gives the administration more leeway to implement their policies during that process without that pause.
And so we see that aspect of it. The reason why I’d say it’s a little bit of both is there were only 14 or 15 nationwide injunctions that were placed on the entire Biden administration. So the amount of things that the Supreme Court needed to respond to over that four years was just, that workload is very different than the 40 or 50 injunctions that are being placed on the administration with a matter of months. And so from a workload standpoint, there probably is an argument for why you would see this being used more, but that’s only if you divorce it from the types of issues that are being halted and the types of rulings that the lower courts are actually issuing.
They’re not, again, the claim the administration has been making is that these are liberal communist radical judges that are blocking his policies, whereas Republican judges are blocking them at basically the same rate as democratic judges. And so it clearly isn’t that even though that’s the framework that’s being made. But the Supreme Court has been extremely, extremely, I would say, engaged in helping the administration out in any place it can. And it’s created, there was this article recently just talking about the Civil War within the judiciary. It’s created a lot of tension between the lower course and the Supreme Court as a result because their rulings are basically getting nullified in a way that they had not experienced in the past.
Matt Grossmann: So the Republican or one Republican interpretation of this is that the court is acting because there’s increasingly active district court judges. Part of the context for this is that Democratic attorneys general and associated interest groups were ready for a lot of these cases and were ready to pursue them in the places where they would be most successful. Of course, the same was true of Republican attorney generals and Republican interest groups under the Biden administration. But how would we empirically distinguish between those stories that you’re… a story about the Supreme Court stepping in in a truly unprecedented fashion versus that what’s unprecedented is all these district court judges making these decisions?
Adam Bonica: I think the content of the cases that are being challenged is really where the answer to that lies. So had it been the case that the Biden administration was sending, commandeering, the National Guard are sending federal troops into cities that were heavily Republican or had the Biden administration gone and said, I’m just going to dismantle ICE. It no longer exists as a federal agency. Or saying things like Congress no longer has the power of the purse. I have spending power. If Congress allocates money, I get to decide whether it’s spent or not. These types of very basic settled constitutional law, those are the types of things the Supreme Court’s giving relief on. If not, the minor, can the military enforce vaccine mandates? That’s a legitimate legal question, I suppose, but it’s just not on the same order of magnitude or scale as what we’re seeing. The types of cases that are making their way through the courts right now.
And again, this is something that the judges that have been ruling on them have been very clear about. The other aspect of it is you could think of this two ways. So one, the reason why we have more than one court, we don’t just have the Supreme Court, is because the workload should be distributed across federal judges. And there’s this notion, or there’s a long-term understanding that the federal judges are acting in good faith. And I would argue that in these decisions, there’s lots of evidence that they are, and that they can do the job of what the Supreme Court would maybe later have to do or bring it to a point where they can make the final decision. So the Supreme Court doesn’t have to go ahead and decide those cases. So if you were to make the workload argument, you have to also make the argument these courts are creating work for the Supreme Court, that they otherwise, that they’re creating work in a way through their decisions.
They’re creating work in a way through their decisions as opposed to clearing the docket. And that’s where I think it’s hard for me to look at these cases and go, “That’s what’s happening. These judges are just out of line. They’re just ruling against the administration because they don’t like Republicans.” It’s just, how do you draw that conclusion when Republicans are ruling against administration at similar rates? I mean, when we saw the efforts to impeach judges back in March and April, where there was a Republican effort in Congress to start impeaching judges who had ruled against the administration, two of the four judges were Republican appointed. This is a much broader conflict between the Republican Party and a judiciary that still sees itself as protecting a constitutional order, but sees itself sort of under attack both from the outside, from Congress and the White House, but also from above with the Supreme Court.
Matt Grossmann: The Supreme Court recently took advantage of the appeal of the birthright citizenship case where the administration didn’t have a great argument on the core issue to rule against nationwide injunctions, or at least make them much more difficult. Was there a case that they should have been limited in general? And is this a standard that they’re going to maintain in the future under democratic administrations?
Adam Bonica: Yeah. First, as political scientists, we think of, okay, what is going to be the consequences of a strategic action? How is the other side going to respond? The immediate sort of takeaway from that is, there are going to be far fewer nationwide injunctions that judges feel that they can provide. So what that ruling did in effect is, it didn’t say that judges can no longer issue nationwide injunctions, or injunctions at all. They can still issue injunctions for the specific party in the case. So whoever’s suing the administration, they can still issue an injunction for that, but they cannot do something like protect broadly something that we had accepted as a constitutional right, like birthright citizenship. To do that now, you need to form a class action, which has all these procedural limitations. It’s very costly to navigate that process, and it’s also very slow. So it essentially sort of tied the hands of a lot of these lower court judges because the standards of issuing these injunctions just increased monumentally.
I also think it’s telling that the case in which they did that on was birthright citizenship. You don’t need to be a legal scholar or a political scientist to read the 14th amendment and say, if you were born in the United States, you have citizenship. That’s just, it’s clear as day. There’s no ambiguity to it. It’s like saying, if you’re 18 years of age, you can vote. These are the types of things we point to as there’s not much room for statutory interpretation or anything like that here. And yet that’s the thing being challenged. And that’s the thing the court decided was out of line for a lower court to say, “No, we have to stop this because there’s a clear constitutional violation going on.” I just see that as… We’ll look back at this moment, and it will be considered quite a remarkable move and power grab by the Supreme Court over the lower courts that it seizes essentially unruly in a way.
Matt Grossmann: Somewhat similarly, we had some rulings in the Biden administration that people thought were going to make it harder for the administration to act without court scrutiny, things like making it harder for administrative agencies to develop their evidentiary basis for action, this idea that the executive branch agencies weren’t able to decide major questions without clear congressional intent. But it doesn’t seem to have stopped the Supreme Court much. Is there kind of a distinction that matters here? Or is this just insincere or differential reasoning here between the administrations?
Adam Bonica: I mean, my framework to think about this is, this is about political power. It’s about institutional power. We tend to try to think of all this as, are they setting up legal standards and are they following through? If following the court over the last few years has taught us anything, that these cases that we had considered settled with strong standing precedent, those are easy to overturn by the Supreme Court, like those procedural standards that they’re setting in place or lifting. Or when it comes to cases that affect the Chevron decision that you were talking about, that influence the sort of autonomy and executive power that’s placed within executive agencies to create their own regulations out of what Congress has granted them in terms of powers. Those things, they just exist at the pleasure of the Supreme Court.
I see none of this as a fixed feature. They don’t have to follow any of the rules they set in place. They can just change them at will. It’s sort of like how we think of British Parliament, that they can make any law they want, and there’s really no constraint on what the majority in the British Parliament can do. In the US, the Supreme Court really has more of that role that they can play. And they’re playing that hand. It’s pretty clear they see what’s at stake. It’s near impossible to understand how a group that has been trained in understanding the separation of powers and checks and balances could be so cavalier towards these very core questions that you could not imagine them providing to a democratic administration. It’s not simply about partisanship. I just think we should think of it as the court using its power to promote things that it wants. And the Trump administration clearly is a vehicle through which they see that opportunity.
Matt Grossmann: Many of these rulings are procedural, standing decisions have come a lot, jurisdiction sometimes, and comparativists have pointed out that we do not have any kind of automatic constitutional review of government actions. So one way of looking at this is, our system just sort of requires the working out of all of these legal technicalities and operational ones. You have to have the right union or employee or contractor to sue under the right grounds. On the other hand, you might just say that these just provides them some easier loopholes, but they can sort of find their way to the side that they want. Do you subscribe to either of those views?
Adam Bonica: Yeah. I mean, I’m coming down on this again and again, the power framework that I view the court through. And historically, this has been the case as well. If the court were truly operating on this sort of, the law is the law, and the law has been handed down from higher up and they are strictly interpreting it, calling balls and strikes, much of American history would probably look very different. So that’s much closer to what we see in, say, a constitutional civil law courts, where they have much less leeway in, say, France or Italy to interpret the laws in ways that have not been expressly stated by the legislatures. So the balance between the legislature and the courts in those systems and most systems looks very different.
I would argue that in the US, courts are far more powerful. And Francis Fukuyama has written pretty extensively on this being a quirk of the US constitutional system and political system, that things are very legalized. Everything is sort of decided through legal processes and procedural processes as opposed through more typical political processes, through the legislature or through meeting with arbitrators within civil service or executive agencies or the bureaucracy. So the balance of power between the courts and what we see in the legislature in the US is out of whack from anything we see pretty much in other functioning democracies. A big part of that is, they get to make up their rules as they go along. And that’s often through procedure.
This also gets to a lot of the stuff that we see. The reason things are so procedural is because that’s really good for judges, but it’s also really good for the legal profession. It shifts power in a way that I would argue very much advantages the powerful and disadvantages the not-so-wealthy in ways that protects power as opposed to hold it accountable. The case in which I think is just the glaring example of this was the Trump immunity case, where the Supreme Court came in, they did not need to intervene. The charges were pretty clear. We just saw Bolsonaro convicted, I think, to 27 years in prison. And again, that’s just not an unusual thing.
I’ve looked at this, 31 former leaders of democratic countries over the last 20 years have been convicted and banned from running for office. It’s very common. The US is this huge outlier. But the Supreme Court came in and said, “Actually, we think about this as maybe the president needs all this extra leeway so that they can make their own decisions,” to a person who was no longer president. It just was very beyond the pale. It also spoke to the very core things, like if you have an unaccountable executive, do you have a functioning democracy? That’s one of the sort of pillars that we expect, and they seem to not think that was even at play there, or at least they didn’t portray it as such.
Matt Grossmann: Even if we kind of give them the benefit of the doubt for some of these procedural rulings, they really add up to big changes in power. So for example, there was a case about federal employees who were improperly fired, had to go to a particular part of the federal government, that then Trump fired the heads of those pieces of the government. There was also a case on the spending power that a court said, that the general accounting office would have to bring that case, but then Trump can reappoint a head of that agency. So how do you think about these kind of quirks of this system where even pretty narrow rulings can end up basically making it impossible for the courts to be able to block executive power grabs?
Adam Bonica: This is one of the more puzzling aspects of this, for me at least. I teach American political institutions, and it’s been a weird time to teach it, but a lot of it is about how power is shifting from one set of institutions, or one branch of government to another, and where those power grabs happen. It’s rare to see one of those institutions just hand over power to another one. And that’s essentially what the Supreme Court has done with Trump. When they say that Trump can essentially do what he wants without fearing criminal prosecution, well, that changes the balance of powers because that was considered one of the primary checks on presidential power as set in place by the framers, that there was a reason you had this judiciary that was independent from the president. Part of that reason was because they were the institution that was supposed to hold the president accountable if they broke the laws.
The sort of handing over of this power, I mean, I thought that there would be more pushback from the Roberts Court. It’s very clear that the lower courts have fought this tooth and nail. Republican, Democratic judges have essentially said the administration is trying to break the law and overrule what the courts can do. Basically, the coded language they use is Article II and Article III, in their language. But you see that popping up more and more frequently because they know that this is sort of a power struggle between the courts and the executive. This is not uncommon in authoritarian regimes, but again, what’s really uncommon is that at the highest levels, the courts in the U.S. have sort of co-opted that strategy and sort of have been following along. There’s a very good argument to make that in doing so, the Supreme Court has very much weakened themselves.
Matt Grossmann: It strikes me that scholars were certainly right to be worried about executive power grab in the second Trump administration, but we haven’t been kind of right about the mechanism. Most of the fear was about the President would not follow court rulings, even coming from the Supreme Court. And then in the administration, the fear was about this Schedule F policy, which was reinstated. But the idea there is not just that there would be a purge, but that there would be a lot of in-statement of new Trump appointees throughout the lower levels of the bureaucracy, not just reduced staff overall. So I guess, how do you interpret that, given that we have seen the power grab, but neither of these kinds of predictions seem to be what’s bringing it about?
Adam Bonica: Yeah, so on the Schedule F, I’m going to hold off on making an assessment. So these claims, if you look at them in terms of just American politics, it seems like these are well established constitutional theories that are playing out and just politics as normal. But if you frame it in terms of authoritarian politics, these are just tactics that have been replicated from Hungary and Turkey, for instance, where we saw the exact same patterns play out, albeit much slower.
So Steve Levitsky has been out there saying, “I have never seen backsliding occur this fast.” And so I think one of the things you see… So after the coup attempt in Turkey, for instance, a huge number of government employees were fired. It took much longer to replace them. So the process of hiring, there’s just going to be a bit slower than the process of invoking the chaos and these mass firings. And so once you make the room for those new hires, you would expect that to happen. And there were also, if you saw, the OPM had issued a memorandum that said that to be hired, you had to have a pledge to the President to say that you would implement his policies and not oppose them. Which again is, this is what you see in authoritarian regimes who are trying to attack, trying to assert control over the bureaucracy.
So I see that very much in the framework of if you zoom out from the United States, it just looks like what we see elsewhere. There’s not much of a difference there. We’re going to miss the nonpartisan civil service when it’s gone because a lot of things that we rely on rely on that type of competence and expertise. But again, this is not that unusual.
And on the following of laws, it’s hard to… So had the Supreme Court put up a big fight and said, “No, the birthright citizenship is very clearly stated. There’s no ambiguity about this. You can’t make these claims.”, or, “No, you can’t have a secret police in the form of ICE that have masks that were going around arresting people without due process. No, you can’t invade U.S. cities.” These are very basic constitutional protections that I don’t think are very controversial from a Democratic or U.S. constitutional framework.
They haven’t put up that fight, and so the Trump presidency has not had to basically obey. Because they know that the things that they have had to obey have been largely temporary, which of these lower court rulings. And so far, they have not gone out of their way to overtly say, “No, we’re not following the law.” Even though there’s a lot of cases where they just continue. There’s a lot of judges who are like, “I issued this order.”, and then just one of the judges in the deportation cases was like, “I issued this order that you can’t send this person out of the country and then you just sent them on a plane.” You’re directly in contempt of court, but they’re too afraid to issue that ruling because of the chaos that would create. And they’re not in a strong position to do so because the Supreme Court’s not going to back them up.
The other thing I think people are downplaying is while judges were issuing those rulings, rather than just saying, “We’re not going to follow them.”, the Trump Administration had this two-pronged strategy. One, they appealed up to the Supreme Court where they thought they’d get relief. But two, they started making violent threats against judges. So judges now in the U.S. have had to hire their own private security. They are getting death threats all the time. And the President himself has been saying that these are enemies of the United States and has been encouraging this behavior.
That, I think is… Breaking the law is one thing, but if I were in court and I started sending threats to the judge, that’s not going to end well for a normal citizen. And it would be considered a type of unlawful behavior, I would hope. And so here, I think they’re playing a different strategy. They don’t feel like they need to do everything immediately, but they have already made those moves. And they’re just letting them play out, is sort of my read of the situation.
Matt Grossmann: So in your prior work and your previous appearance on the podcast, you have found that it took a long time for conservatives to kind of get equal standing in the judiciary because most lawyers are liberals. The same as likely to be true in administrative agencies. But how things worked out in this administration might be seen as a success of that strategy. But on the other hand, you’ve found that the Republican lower court appointees haven’t really been going along with the plan. And the rulings at the Supreme Court seemed a lot more Trump specific than outcomes of the conservative legal movement. So, how are you interpreting the success, the political success of that strategy? And does it have implications for the changes at administrative agencies?
Adam Bonica: Yeah. So Trump was very, he even was lashing out at Leonard Leo who was the President of the Federalist Society. Which has been the counter, like the force that has been most active in building this set of potential conservatives jurists to overcome this sort of disparity in terms of the number of conservative lawyers from elite schools versus liberals. And many of those judges, I think there’s sort of a divided loyalties for them. So they may have loyalties to the Republican Party to some extent, but they also have loyalties to their profession. Many of them went to law school at a time where the Constitution was seen as something that they were supposed to protect. The language around it was always, maybe they put more emphasis on protecting one part versus the other. But there was general consensus in the legal establishment that the Constitution itself was something that it was their job to be defenders of.
And so many of these Republican judges, some of them had been appointed before the Trump Administration. So that explains, I think some of them have less loyalty to what the Republican Party has become. And they are pretty large obstacles. But even these Federalist Society judges that were appointed by Trump and his first administration have been much more conflicted than I think a lot of people have expected.
Moving forward, I just don’t see it as… It’s not going to be a difficult process, at least we haven’t seen much resistance, of the Trump Administration of appointing outright loyalists to the court. Emile Bove is probably the most high profile example of that. But that’s what we should expect from the types of appointees, moving forward. That the courts have been probably the biggest source of friction for the Trump Administration. And there’s no reason to think that they’re just going to continue as usual. They’ve been very clear about their hostility towards having any constraints from the court.
I think the other aspect of this is because we have a judicial hierarchy in the U.S., lower court judges can temporarily do things. So, there’s been a lot of bravery coming out of the lower court judges. And I think that’s very laudable in a lot of ways. And this is coming from someone who’s somewhat of a critic of the legal establishment as exists. I’ve seen judges, again, from across ideological spectrum doing very brave things in defense of our democratic order. But they can only do that for so long. They can stall things and buy time. But if the Supreme Court is the ultimate deciding institution in this framework, that’s the only institution you really need to have control of. And it’s quite clear that the Trump administration has managed that.
Matt Grossmann: So, it doesn’t sound like we have a high note to end on. But is there any take home message you want to leave us with or anything you want to tout about what you’re working on now?
Adam Bonica: I’ll put it this way, a reading of history and of all the different other countries in contemporary era that have gone through this type of backsliding, it’s usually not a permanent feature of society. There’s a strong democratic culture in the U.S. The protest movements we’ve seen have been pretty phenomenal. So, I think if anyone wants to have an encouraging read, Erica Chenoweth’s work on the power of protest movements to peacefully transition back to a democratic governance, I think gives me a lot of hope.
What I’ve been working on recently has been trying to apply a lot of what I’ve learned in money in politics and elections to honestly sort of help push the Democratic Party to reform itself into an anti-corruption party. So, this is cleaning up their fundraising practices. So I’ve been working on this project on spam packs, all these crazy text messages we get for fundraising. And it’s just a really bad thing for the party brand, and it implicates the entire party elite, unfortunately. And it’s the type of thing that just really needs to be cleaned up in the party. It’s also targeting elders and vulnerable populations. That’s where all that money is being raised from. So, I’ve been really focused in that.
But really I’m trying to also move the Democratic Party beyond this sort of, should we run moderates and progressives debate? And saying, “That’s not how the Democratic Party is going to come back from this.” It needs to reform itself into a true anti-corruption party, because that is the Achilles heel of authoritarian regimes. They are prone to corruption and it is the type of thing that builds broad coalitions against them. And there is ample evidence that the Trump Administration is just as susceptible to that weakness as other authoritarians worldwide have. And so, that’s sort of where I’ve been trying to put my efforts recently.
Matt Grossmann: There’s a lot more to learn. The Science of Politics is available biweekly from the Niskanen Center, and I’m your host, Matt Grossmann. If you like this discussion, here are the episodes you should check out next, all linked on our website. Can judicial review stop a Lawless executive? The backstory for presidential power grabs. Will Supreme Court opinions provoke public backlash? How the Federalist Society changed the Supreme Court vetting process. And can liberals stop Trump in the courts? Thanks, Adam Bonica, for joining me. Please check out on Data and Democracy and then listen in next time.