In this episode of “The Opinions,” the editorial director David Leonhardt talks to a conservative former federal judge, Michael McConnell, about the role of the courts in President Trump’s second term.
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The transcript has been lightly edited for length and clarity.
David Leonhardt: I’m David Leonhardt, the director of the New York Times editorial board. Every week I’m having conversations to help shape the board’s opinions.
One thing that I find useful right now is talking with President Trump’s conservative critics. They tend to be alarmed by the president’s behavior, but they also tend to be more optimistic than many progressives about whether American democracy is surviving the Trump presidency. And that combination helps me and my colleagues think about where the biggest risks to our country really are.
One area I’ve been wrestling with is the federal court system. I want to understand the extent to which the courts are acting as a check on President Trump as he tries to amass more power, or whether the courts are actually helping him amass that power.
So I decided to have a conversation with Michael McConnell. He’s a former federal judge who’s now a law professor at Stanford University, and he’s a conservative. He was appointed to the bench by George W. Bush. But McConnell is also disturbed by aspects of Trump’s behavior. I find our conversation helpful because it highlights some reasons for optimism right now, as well as some of the biggest threats that our country faces.
Professor McConnell, thanks for joining me.
Michael McConnell: It’s a pleasure.
Leonhardt: So I want to start with what’s happening in the lower courts, although I promise we’ll get to the Supreme Court, and the extent to which these lower courts have ruled against the Trump administration is pretty remarkable.
One analysis found that Democratic-appointed judges have ruled against Trump 80 percent of the time, and that Republican-appointed judges have ruled against him 72 percent of the time. It really feels like these rulings have mattered. I mean, when you look at every law firm that has fought one of Trump’s punitive executive orders, they’ve all won, and they’ve prevented the orders from going into effect. So I’m curious if you think I’m right that it is historically unusual to have an administration lose as often in court as this administration is losing?
McConnell: Well, there’s a long-term trend where administrations are losing more and more. But that isn’t to say that the Trump administration isn’t unusual. Even Trump’s supporters will be happy to tell you that he’s trying things that are new that have never been done before, that push the envelope. And a president of that sort is of course going to log a larger number of losses, even if he wins a number of consequential wins.
Leonhardt: Do you think his losses have mattered? Do you think that they have meaningfully altered the policy course of the first six months of the administration?
McConnell: Well, I think undoubtedly they have, although some of the losses have been about decisions that are kind of petty or vengeful on the part of the president. Going after the law firms, I do not think it is promoting any particular policy of the administration. It’s really a kind of retribution against individual lawyers and firms that have crossed him. Now, in the immigration area, I think there has been a major effect.
Audio of a news clip: The Trump administration’s deportation plans hit another legal roadblock.
The most important decision was the one held that the administration was required under the due process clause to give, allegedly, immigrants time.
Audio of a news clip: Overnight, the Supreme Court blocking the Trump administration from using the Alien Enemies Act to deport Venezuelans to El Salvador or elsewhere.
In general, the idea that they were required to give due process seems to have come as a shock to the administration, but it introduces a degree of fairness to the system that might not otherwise be there. And I’ll just say one more thing about our Republic: This is not actually the way the framers expected things to work. They expected there to be checks and balances, but they thought it was going to be Congress and the president duking it out most of the time, for complicated, long-term reasons that are more political than they are legal.
Congress ceases to be much of a check — at least if the same president that controls the White House controls Congress. And this isn’t a Trump thing. This was true under President Biden. It was true under President Obama, under President Bush — that Congress has ceased to be an effective check. And the courts are more of a check than I think the framers ever would have imagined them to be.
Leonhardt: Yeah, and that has real downsides, because Congress is elected and the framers wanted, in many ways, the first among equals of the branches to be the one that was closest to the people, I believe.
McConnell: You’re absolutely right. And so many of these questions — although they can be framed as legal questions — do have a certain amount of policy judgment in the backdrop that it’s very uncomfortable for our system for judges to be exercising that kind of judgment.
Leonhardt: I take your point that on some of these defeats, like the law firm executive orders, they aren’t matters of grand policy. But I still take real comfort in what the courts have done here because I want to live in a country of laws rather than a country where people in power can do whatever they want. And to me, those law firm orders were pure examples of Trump trying to do things that really no modern presidents of either party have tried to do. They were forms of retribution.
And so even if they’re not major policy defeats, I would guess you share my relief that the courts have prevented a president from just punishing his enemies using his pen?
McConnell: Well, I was part of an amicus brief of former judges that made precisely that point in the cases about the law firms. And I don’t mean to say that this isn’t important; it is important, and I also think it reflects very well on the courts. In some of the cases, I think the judges have been right. Some of the cases, I think, the judges have been wrong. And, you know, some of President Trump’s decisions have been legally defensible and some not.
In the political world, people are really inclined to just choose teams, and you’re either on team Trump — in which everything the president does is lawful and wonderful — or you’re in team anti-Trump, where everything he does is illegal and improper. And the courts are being held to that kind of a partisan standard.
It is my hope, and I actually think it’s turning out to be true, that the courts are not falling into that individual judges, you can say one way or the other, but the system as a whole seems to be sifting through the legal claims, and they’re finding a path that is neither team Trump nor team anti-Trump. But it is something close to reaching legally defensible answers to these questions.
Leonhardt: I think one of the worries that many people have, I’m guessing many of our listeners have, is that there’s an asymmetry here. And they probably hear you and I talking about this and they think: Yes, but even though the lower courts are finding against Trump, the higher courts, and particularly the Supreme Court, are then often coming in and siding with Trump.
I want to make this concrete by talking about a case that you are very closely involved in. So you brought together a collection of liberal and conservative lawyers to write an amicus brief, which is basically a legal filing that tries to persuade judges. In it, you all argued that Trump had vastly exceeded his authority in imposing his tariffs. And this is one of these cases in which a lower court ruled against Trump. They ruled that his tariffs did exceed his authority. They cited your brief, and I should say you’re now the lead lawyer in that case for the plaintiffs. But then an appeals court came in and said, the tariffs can go forward at least temporarily.
So I think there are many people who say: Yes, the courts are sort of trying to play with the old set of rules. It’s like that line: They’re bringing a knife to a gunfight. So I’m curious first how you think about where the tariffs case now stands, and then let’s broaden that out to talk about whether you have concerns that the kind of remedies the courts are finding are failing to meet the moment.
McConnell: Yes, so what the federal circuit did in this case is that it stayed the lower court’s decision very quickly. But at the same time, it ordered full briefing on a highly expedited schedule, and this shows that the court is being highly responsible in that they realize the need for a resolution of this quickly. But they also realize that the president of whatever party is entitled to a certain degree of deference because he’s been elected by the American people. President Trump campaigned on tariffs — this is not a surprise.
I think the decision should not have been stayed. The reason I think that is because the likelihood of success on the merits is very high. And I think that the consequences of the tariffs for people like our clients, who are five small businesses, and it’s documented just how devastating the effect of the tariffs are on their businesses.
But the court placed more emphasis upon the ability of an elected president to be able to execute his policies until the courts have come to a final conclusion. And you know, that is a restrained and responsible way to act. I can’t criticize that, even though I think if I had been on the court, I probably would’ve gone the other way.
Leonhardt: It’s interesting because you disagree with this individual decision, but you would say for the most part that you think the courts have responded pretty well to Trump. I think there’s a real concern that the courts just aren’t showing the level of urgency that they should to prevent the really serious consequences of Trump’s policy, and that they are treating him too much like Joe Biden or George W. Bush or Barack Obama or Ronald Reagan — like any other president when he isn’t one.
McConnell: Well, first, I think the notion that the courts are not acting rapidly enough is really a very strange thing for people to think. There have been hundreds of orders going against the Trump administration in the various courts. What’s historically unusual here is just how fast the courts are moving.
Now, it is true that the U.S. Supreme Court has decided — I think it’s maybe 20 times — in a direction that you would might say is pro-Trump, but that is not a random sample of cases. The Justice Department is not taking every case up to the U.S. Supreme Court — they are taking the best cases for them up to the Supreme Court.
And the Supreme Court itself is not very inclined to take cases on an emergency basis. It’s also not inclined to step in when the lower courts have just done what they thought was right. So that creates this impression that the U.S. Supreme Court is out there protecting the Trump administration — when really, that’s just the way the numbers work out, given the structure of the litigation the court is facing.
Leonhardt: So I think what I hear you saying is that you are mostly positive about how the Supreme Court has dealt with this incredible flurry of policies or far-reaching policies. You think they tend to be getting the balance right, maybe not in every case, but that they’re deciding the questions before them first, which is typically what we want our courts to do. And you think that they’re in a tricky spot and they’re mostly doing what we should want them to do. Is that a fair characterization of your take on the court?
McConnell: Yes, it is. I think that they are doing what Democrats would’ve liked them to do under Biden. And I think that that’s really the point — we shouldn’t bring a partisan lens to evaluating these decisions. We ought to look at the law and see whether they’re getting it right.
Leonhardt: So, I’m going to ask you to speculate a little: What would it take for you to become much more alarmed? Because there are many people who are quite alarmed about the state of American democracy under President Trump. In some ways you are among them. You are really worried about the tariffs and the effects that they will have, and his lack of legal authority for implementing them. But you also seem to believe the system is holding. And so for people who are more worried than you, I’d be curious what are the things that might flip you into the other camp? What is it that would lead you to think we were crossing a line that we haven’t yet crossed?
McConnell: That’s a great question, and let me give an answer both from what the president might do and also what the courts might do. If the president openly defied a final decision of the Supreme Court, we would be in very deep, endangering territory. On the court side, if the whole system started getting a bunch of cases wrong, I’d start getting more alarms.
So far, I’ve seen decisions I don’t like. but I think on the whole, they’re sifting through these conflicting claims and they’re deciding them both ways. And it seems to me that’s pretty reassuring. And when I look at our constitutional system as a whole, plenty of presidents over the years have done absolutely outrageous things. I mean, for President Franklin D. Roosevelt to lock up Japanese Americans during World War II was an appalling thing to do. I think we’ve gotten involved in wars without congressional authorization, and the way I read the Constitution, that’s not permitted. It doesn’t go to court, and there’s not much the courts, I think, can do about that — but that doesn’t mean it’s right.
So there are a lot of individual things that presidents can do that I think are deeply disturbing. But when we’re talking about the Constitution and our Republic, it’s not about individual presidents or individual acts — it’s about the system as a whole. And the system as a whole, I think, is under enormous strain. But it seems to be working much better than a lot of my colleagues seem to think.
Leonhardt: Let’s end here. I want to talk about one more thing that worries me, and it’s a little bit more personal in nature, given that you have been a federal judge. Many sitting federal judges today feel less safe than they did before. They worry about their personal safety, they worry about their families, and they do because of the incredibly harsh language that Trump uses to talk about judges. He has said: “We have bad judges. We have very bad judges, and these are judges that shouldn’t be allowed. I think at a certain point you have to start looking at, what do you do when you have a rogue judge?”
There’s this notion that if someone disagrees with Trump, they’re somehow an enemy — especially given the even harsher language coming from people very close to him: his aides, people who visit the White House. They’ve published information about judges’ families. They’ve sent pizzas to judges’ houses in a kind of vague, threatening way. Are you worried about the way President Trump and his allies have been talking about judges in recent months?
McConnell: I am very worried about the way people are talking about courts and judges in recent years, and President Trump ought to be ashamed of himself for engaging in this, and the attorney general, Bondi, as well. But what was said about the courts under Biden was not any better. And don’t forget that when there was an assassination attempt on Justice Kavanaugh, people were camped out in front of the Supreme Court justices’ houses.
And by the way, it isn’t even just judges. Judges are maybe the most concerning to me, but the rise of political violence in general is a real threat to the Republic that is not coming from the courts. Rather, it’s coming from the climate of opinion in the United States, where it’s suddenly OK that if you don’t like health care, you can shoot the C.E.O. of a health care company. If you don’t like a congressman for political reasons, you can take a shot at him or her. That way lies disaster.
Leonhardt: Professor McConnell, I really appreciate you joining us today.
McConnell: It’s been a pleasure.
Thoughts? Email us at [email protected].
This episode of “The Opinions” was produced by Jillian Weinberger. It was edited by Alison Bruzek and Kaari Pitkin. Mixing by Sonia Herrero. Original music by Pat McCukser and Carole Sabouraud. Fact-checking by Mary Marge Locker. Audience strategy by Kristina Samulewski. The director of Opinion Audio is Annie-Rose Strasser.
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David Leonhardt is an editorial director for the Times Opinion section, overseeing the editing and writing of editorials. @DLeonhardt • Facebook
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