Supreme Court Conservatives Might Not Be Completely in Step With Trump
The conservative super-majority displays significant internal divisions regarding matters related to presidential power.
TroibNews 
President Donald Trump is likely to become a regular presence at the Supreme Court in the upcoming weeks. His numerous executive orders and various actions have challenged, and seemingly disregarded, the legal and constitutional boundaries that have traditionally limited presidential authority. Currently, over 80 federal court challenges to his initiatives are active, and more are expected to emerge shortly.
Trump may be optimistic about his chances of winning these cases, particularly given that the Supreme Court is composed of six Republican appointees, three of whom were selected by him during his first term. Furthermore, the court granted him a remarkable victory last year by establishing broad new criminal immunities for actions taken while he was president, especially relating to his efforts to overturn the 2020 election.
However, there are reasons to believe that the six conservative justices may not consistently align or automatically favor Trump in every instance. The issue of presidential power does not always split neatly along ideological lines.
This raises fundamental questions about the current definition of a conservative justice, especially within a 6-3 supermajority at the Supreme Court. The conservative movement is grappling with significant internal contradictions. On one hand, there is a strong skepticism towards centralized governmental power, reminiscent of the tea party's "Don’t tread on me" ethos. On the other, there is a robust endorsement of an assertive presidential power as demonstrated by Trump, and previously by George W. Bush and Dick Cheney. These two perspectives on power coexist uneasily, and may be in direct conflict.
One question to consider is whether a Supreme Court that recently curtailed executive power by eliminating the Chevron deference doctrine can now grant Trump the authority to impound funds or eliminate agencies established and funded by Congress.
While ideology and partisanship undoubtedly influence some court decisions, the six conservative justices have their own judicial philosophies and different approaches to legal interpretation. Tensions among conservatives exist, particularly when Trump stretches the boundaries of executive power.
For example, Justices Samuel Alito and Neil Gorsuch might be more inclined to dismiss lawsuits regarding Trump’s dismissals of agency heads that were designed to function independently of the presidency. Meanwhile, Chief Justice John Roberts may be more concerned with public perception, and thus less likely to take preemptive action. Justice Amy Coney Barrett has shown a nuanced understanding of presidential authority, particularly regarding statutory limitations. Justice Clarence Thomas has exhibited reluctance towards the notion that the president can create new offices unilaterally. If the justices adhere to their legal principles, rather than voting predictably along party lines, they are likely to split on some of these cases, which could have significant implications for Trump’s agenda.
Here is an overview of several critical constitutional issues that could reach the Supreme Court, along with potential conservative responses.
**Immigration**
Keep an eye on John Roberts and Samuel Alito. Since Justice Anthony Kennedy’s retirement, immigration cases have increasingly followed ideological lines, with conservative justices generally supporting executive authority over matters regarding non-citizen detainees and prospective citizens. However, two Trump initiatives may create discord among conservatives.
Firstly, Trump’s effort to have the federal government override state and city decisions regarding undocumented immigrant populations poses a legal challenge. The administration has threatened to cut federal funds to states that do not comply with its immigration orders. However, the Supreme Court has expressed skepticism about the federal government’s ability to "commandeer" state resources. The prevailing opinions on this issue, written by Roberts and Alito, favor states, and just last year both justices declined to intervene in stopping Texas's enforcement of its immigration law — a pro-state stance that suggests the federal government does not possess unfettered power.
Trump’s initiative to narrow birthright citizenship may also confront conservative resistance. The administration's interpretation of the 14th Amendment diverges from longstanding constitutional understanding, and justices who consider originalism — including Barrett — might find it difficult to align with Trump, especially in light of her sensitivity to parental rights in contexts such as transgender healthcare. The potential impact of this initiative could disrupt families, which may also influence judicial views.
**Personnel**
Clarence Thomas may surprise people. Trump has dismissed many officials, including those at independent federal agencies, where both statutes and Supreme Court precedents stipulate limitations on presidential actions. However, he might find support among conservatives in this area.
Trump's acting solicitor general indicated intent to argue that the precedent limiting such presidential actions was incorrectly decided, and a recently dismissed NLRB member has already filed legal challenges that could bolster Trump’s cause. All conservative justices have consistently recognized expansive presidential authority over senior official appointments, suggesting they may be inclined to revisit the established precedent of *Humphrey’s Executor v. United States*.
On the broader question of Trump's targets within the federal bureaucracy, opinions may differ. Challenges to the broader elimination of statutory protections for civil service may elicit divided responses among conservatives, given the convoluted nature of the arguments against such protections. Thomas previously dissented from the conservative consensus on Senate confirmations, and while Gorsuch has favorably interpreted presidential control, it is uncertain how Barrett would respond, as she has not previously ruled on similar cases. Thus, some division on this issue seems likely.
**Departments**
Neil Gorsuch may be a DOGE fan. The beginning of Trump’s second term has already seen the effective establishment of new departments without statutory authority — DOGE — while eliminating entities with clear statutory mandates, such as the Department of Education. Existing precedents that challenge the White House's actions have been established by conservative justices.
Thomas wrote critically of any notion that powerful government actors could operate without Senate confirmation. His criticisms could apply to Trump’s creation of DOGE. Moreover, Alito has expressed concerns about delegating governmental power to private actors. Conversely, some justices, like Gorsuch, may favor the creation of DOGE due to their broad interpretations of presidential powers.
Regarding the elimination of statutorily mandated departments, the Trump administration is operating in uncharted territory. Recent Supreme Court decisions suggest potential constitutional limitations on the administration’s actions. All six conservative justices previously curtailed executive discretion to reinterpret existing federal laws, which could pose significant barriers to Trump’s approach of asserting policy authority by dismantling programs instead of modestly redirecting funds.
**Spending**
A conservative split looks plausible. The Supreme Court’s conservatives may be at odds regarding the White House’s claim to expansive authority to withhold appropriated funds, which could pose challenges for Trump.
Such claims conflict with Congress’s authority over spending as outlined in Article I of the Constitution, relevant statutes, and existing contractual obligations. Both Kavanaugh and Roberts, prior to their appointments, adhered to conventional views asserting that the president lacks open-ended impoundment authority. Just last year, Thomas emphasized congressional control over spending, which further complicates Trump's position. Given these precedents, it seems improbable that a conservative majority would coalesce around Trump’s impoundment strategy without substantial changes to their viewpoints.
Still, it is unclear if a confrontation would severely impact the White House. The court might interpret statutes through a creative lens if they believe the White House would resist compliance with an order to allocate certain funds, potentially allowing Trump to claim temporary victories.
**Free Speech**
A significant test for the Roberts Court. Many of Trump’s executive orders have utilized federal funding or the threat of civil litigation to coerce silence from private citizens and firms. This strategy has the potential to create divisions among conservative justices, possibly leading to outcomes unfavorable to Trump.
Trump’s executive orders on DEI invoke the False Claims Act as a basis for prosecution, albeit within a limited scope relating to federal contracting. However, this has prompted a broader retreat from DEI initiatives, impinging on First Amendment-protected activities.
The Roberts Court has historically supported free speech principles and recently expressed concerns about using regulatory threats to silence firms. Notably, three conservative justices would have favored an even stronger free speech protection than the court ultimately upheld. Despite their general hostility toward affirmative action, there remains a chance that they could remain consistent with their past positions on free speech, potentially voting against the White House. Nonetheless, Roberts has previously permitted presidential coercion over universities on culturally contentious issues, and he might adopt a similar stance again.
Ultimately, the outcomes of these issues depend heavily on the specific facts presented in the challenges that reach the Supreme Court. It’s clear that coalitions among justices may shift from one case to another, leading to potential clashes between conservative justices and Trump’s administration.
The conservative supermajority has often endorsed expansive views of presidential power, which could give Trump an advantage in many of these cases. Yet unexpected developments may also arise as his administration explores boundaries that may unsettle some legal conservatives. The question of what constitutes a conservative justice in the era of Trump is unlikely to be resolved any time soon.
Mark B Thomas for TROIB News
Trump may be optimistic about his chances of winning these cases, particularly given that the Supreme Court is composed of six Republican appointees, three of whom were selected by him during his first term. Furthermore, the court granted him a remarkable victory last year by establishing broad new criminal immunities for actions taken while he was president, especially relating to his efforts to overturn the 2020 election.
However, there are reasons to believe that the six conservative justices may not consistently align or automatically favor Trump in every instance. The issue of presidential power does not always split neatly along ideological lines.
This raises fundamental questions about the current definition of a conservative justice, especially within a 6-3 supermajority at the Supreme Court. The conservative movement is grappling with significant internal contradictions. On one hand, there is a strong skepticism towards centralized governmental power, reminiscent of the tea party's "Don’t tread on me" ethos. On the other, there is a robust endorsement of an assertive presidential power as demonstrated by Trump, and previously by George W. Bush and Dick Cheney. These two perspectives on power coexist uneasily, and may be in direct conflict.
One question to consider is whether a Supreme Court that recently curtailed executive power by eliminating the Chevron deference doctrine can now grant Trump the authority to impound funds or eliminate agencies established and funded by Congress.
While ideology and partisanship undoubtedly influence some court decisions, the six conservative justices have their own judicial philosophies and different approaches to legal interpretation. Tensions among conservatives exist, particularly when Trump stretches the boundaries of executive power.
For example, Justices Samuel Alito and Neil Gorsuch might be more inclined to dismiss lawsuits regarding Trump’s dismissals of agency heads that were designed to function independently of the presidency. Meanwhile, Chief Justice John Roberts may be more concerned with public perception, and thus less likely to take preemptive action. Justice Amy Coney Barrett has shown a nuanced understanding of presidential authority, particularly regarding statutory limitations. Justice Clarence Thomas has exhibited reluctance towards the notion that the president can create new offices unilaterally. If the justices adhere to their legal principles, rather than voting predictably along party lines, they are likely to split on some of these cases, which could have significant implications for Trump’s agenda.
Here is an overview of several critical constitutional issues that could reach the Supreme Court, along with potential conservative responses.
**Immigration**
Keep an eye on John Roberts and Samuel Alito. Since Justice Anthony Kennedy’s retirement, immigration cases have increasingly followed ideological lines, with conservative justices generally supporting executive authority over matters regarding non-citizen detainees and prospective citizens. However, two Trump initiatives may create discord among conservatives.
Firstly, Trump’s effort to have the federal government override state and city decisions regarding undocumented immigrant populations poses a legal challenge. The administration has threatened to cut federal funds to states that do not comply with its immigration orders. However, the Supreme Court has expressed skepticism about the federal government’s ability to "commandeer" state resources. The prevailing opinions on this issue, written by Roberts and Alito, favor states, and just last year both justices declined to intervene in stopping Texas's enforcement of its immigration law — a pro-state stance that suggests the federal government does not possess unfettered power.
Trump’s initiative to narrow birthright citizenship may also confront conservative resistance. The administration's interpretation of the 14th Amendment diverges from longstanding constitutional understanding, and justices who consider originalism — including Barrett — might find it difficult to align with Trump, especially in light of her sensitivity to parental rights in contexts such as transgender healthcare. The potential impact of this initiative could disrupt families, which may also influence judicial views.
**Personnel**
Clarence Thomas may surprise people. Trump has dismissed many officials, including those at independent federal agencies, where both statutes and Supreme Court precedents stipulate limitations on presidential actions. However, he might find support among conservatives in this area.
Trump's acting solicitor general indicated intent to argue that the precedent limiting such presidential actions was incorrectly decided, and a recently dismissed NLRB member has already filed legal challenges that could bolster Trump’s cause. All conservative justices have consistently recognized expansive presidential authority over senior official appointments, suggesting they may be inclined to revisit the established precedent of *Humphrey’s Executor v. United States*.
On the broader question of Trump's targets within the federal bureaucracy, opinions may differ. Challenges to the broader elimination of statutory protections for civil service may elicit divided responses among conservatives, given the convoluted nature of the arguments against such protections. Thomas previously dissented from the conservative consensus on Senate confirmations, and while Gorsuch has favorably interpreted presidential control, it is uncertain how Barrett would respond, as she has not previously ruled on similar cases. Thus, some division on this issue seems likely.
**Departments**
Neil Gorsuch may be a DOGE fan. The beginning of Trump’s second term has already seen the effective establishment of new departments without statutory authority — DOGE — while eliminating entities with clear statutory mandates, such as the Department of Education. Existing precedents that challenge the White House's actions have been established by conservative justices.
Thomas wrote critically of any notion that powerful government actors could operate without Senate confirmation. His criticisms could apply to Trump’s creation of DOGE. Moreover, Alito has expressed concerns about delegating governmental power to private actors. Conversely, some justices, like Gorsuch, may favor the creation of DOGE due to their broad interpretations of presidential powers.
Regarding the elimination of statutorily mandated departments, the Trump administration is operating in uncharted territory. Recent Supreme Court decisions suggest potential constitutional limitations on the administration’s actions. All six conservative justices previously curtailed executive discretion to reinterpret existing federal laws, which could pose significant barriers to Trump’s approach of asserting policy authority by dismantling programs instead of modestly redirecting funds.
**Spending**
A conservative split looks plausible. The Supreme Court’s conservatives may be at odds regarding the White House’s claim to expansive authority to withhold appropriated funds, which could pose challenges for Trump.
Such claims conflict with Congress’s authority over spending as outlined in Article I of the Constitution, relevant statutes, and existing contractual obligations. Both Kavanaugh and Roberts, prior to their appointments, adhered to conventional views asserting that the president lacks open-ended impoundment authority. Just last year, Thomas emphasized congressional control over spending, which further complicates Trump's position. Given these precedents, it seems improbable that a conservative majority would coalesce around Trump’s impoundment strategy without substantial changes to their viewpoints.
Still, it is unclear if a confrontation would severely impact the White House. The court might interpret statutes through a creative lens if they believe the White House would resist compliance with an order to allocate certain funds, potentially allowing Trump to claim temporary victories.
**Free Speech**
A significant test for the Roberts Court. Many of Trump’s executive orders have utilized federal funding or the threat of civil litigation to coerce silence from private citizens and firms. This strategy has the potential to create divisions among conservative justices, possibly leading to outcomes unfavorable to Trump.
Trump’s executive orders on DEI invoke the False Claims Act as a basis for prosecution, albeit within a limited scope relating to federal contracting. However, this has prompted a broader retreat from DEI initiatives, impinging on First Amendment-protected activities.
The Roberts Court has historically supported free speech principles and recently expressed concerns about using regulatory threats to silence firms. Notably, three conservative justices would have favored an even stronger free speech protection than the court ultimately upheld. Despite their general hostility toward affirmative action, there remains a chance that they could remain consistent with their past positions on free speech, potentially voting against the White House. Nonetheless, Roberts has previously permitted presidential coercion over universities on culturally contentious issues, and he might adopt a similar stance again.
Ultimately, the outcomes of these issues depend heavily on the specific facts presented in the challenges that reach the Supreme Court. It’s clear that coalitions among justices may shift from one case to another, leading to potential clashes between conservative justices and Trump’s administration.
The conservative supermajority has often endorsed expansive views of presidential power, which could give Trump an advantage in many of these cases. Yet unexpected developments may also arise as his administration explores boundaries that may unsettle some legal conservatives. The question of what constitutes a conservative justice in the era of Trump is unlikely to be resolved any time soon.
Mark B Thomas for TROIB News
