The relationship between the president and the Supreme Court

The written, entrenched and sovereign constitution aims to place stringent limits on presidential action in a variety of ways. This page describes how the president can be influential over the Supreme Court. However, presidents can be limited by the Supreme Court, which can and does uphold constitutional rules against them. 

Presidents typically 'lose' Supreme Court cases in every year of their presidency. 

There is an array of constitutional regulations on presidential power. Some rules are so clear that it is unlikely any president would break them — for example, the maximum two-term rule or the ratification of justices by the Senate. In other cases, the Supreme Court can use its considerable power of judicial review to overturn either the actions of the president or the president's favoured policies.

The president's only formal power over the Supreme Court lies with nominations at a time of vacancy. This gives the president influence over the ideological balance of the Court. The nomination of Merrick Garland by President Obama in 2016 may have had a huge impact on the rulings of the Court. Before this, the Court had a 5-4 conservative majority but with the death of one of those five, a strong conservative, Antonin Scalia, Obama had the opportunity to tip the balance in favour of liberals. Another major tipping in the overall ideological balance of the court occurred with the appointment in 1991 of conservative Justice Clarence Thomas to replace the devoutly liberal Thurgood Marshall.

The extent to which this gives power to an individual president is arguably very limited, however. Most presidential appointments make little or no difference to the overall ideological balance of the Court. This is partly because Justices choose when to retire and typically do so when they are ideologically aligned with the current president.

Presidents may influence the composition, but they have virtually no influence over any one of the nine Justices who make a decision, including the ones they have appointed. Justices have life tenure, so the president can make no threat of removal against them. Also, most presidents only make one or two appointments, with limited overall impact during their presidency.

The role of the presidency is to defend the law and the Constitution, which means executing Supreme Court decisions. Presidents sometimes give a hostile response to court rulings, however. Obama criticised the court for its Citizens United ruling, while many of them sat in the audience of his 2010 State of the Union address. More controversially, there have been some occasions when presidents have challenged the legitimacy of a court ruling and attempted to undermine it. Trump immediately clashed with the judiciary in 2017, attacking the judge who halted his immigration ban. Referring to District Judge Robart as a `so called Judge,' Trump instructed the US public to blame the judge if anything went wrong. Even Senior Republicans such as Mitch McConnell were critical of Trump's approach.

The numbers tell a clear story. There are a total of 816 active federal judges comprising the supreme court, the 13 appellate courts, and 91 district courts. In just one term Trump was able to appoint 28% of those judges due to past and continuing vacancies. Most importantly, he appointed 33% of America’s nine supreme court justices and 30% of the appellate judges. The vast majority of his appointments were white males – not one of his 54 appellate judges is Black. But what really stands out is the age of his appointees. The average age of his appellate judges was 47 (five years younger than those selected by Barack Obama). Six of those were in their 30s, and 20 were under 45. By contrast, of the 55 appellate judges picked by Obama – in eight years, not four – none were in their 30s and only six were younger than 45.

Trump’s judicial appointments will shape American jurisprudence for decades to come. The Federal Judicial Center has found that this age disparity means that Trump judges will serve 270 more years than Obama’s judges, and they will decide thousands more cases. Moreover, the average tenure for a supreme court justice has increased from 15 years in the early 1970s to 27 years in more recent years, due in large part to the younger age of the justices at the date of appointment.

The Trump legacy of judicial appointments is most apparent in the recent behavior of the supreme court. A new term has been coined – the shadow docket – which refers to the sudden uptick in emergency requests filed by the government. In the 16 years preceding the Trump presidency only eight such requests were filed, and, of those, only four were granted. By contrast, during Trump’s four-year term, 41 such applications were made, of which 24 were granted – a 70% success rate that supported Trump’s policies. These cases are heard without full briefing, without oral argument, and often result in a single-sentence order as opposed to a full reasoned opinion.

One such decision overturned, by a 5-4 order, a Wisconsin trial court order allowing an extension for the receipt of absentee ballots. The last-minute supreme court decision issued the day before the election caused chaos and confusion. A second example of how the now safely pro-Trump court supported his policies involved his administration’s rule prohibiting migrants from seeking asylum in the US before seeking it in the countries through which they had travelled. The lower court suspended enforcement of this unprecedented rule, but the supreme court allowed the ban to take effect immediately even as the case proceeded through the lower courts. Another particularly disturbing example involved four death penalty cases where a lower court halted four executions because the use of pentobarbital to kill the prisoners would constitute cruel and unusual punishment. In a 5-4 ruling, issued after 2am, the stay was overturned and at least one of the executions carried out – the first federal prisoner to be executed in 17 years.

Most recently, in yet another emergency appeal, the supreme court by a 5-4 margin, refused to block the newly enacted Texas law banning abortion after six weeks of pregnancy, allowing that rule to be enforced for the foreseeable future. This emergency request was brought by abortion providers after the very conservative fifth circuit court of appeals, to which Trump had appointed six judges, stopped the trial court from holding a hearing as to whether the new law could take immediate effect. A month later a trial judge blocked the law from taking effect and the fifth circuit promptly reversed. The Department of Justice is now appealing that decision to the supreme court.

The Supreme Court declined to block a Texas law banning most abortions in a 5-4 decision.

Chief Justice John Roberts and the court’s three liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented in the late Wednesday move.

The narrowly decided opinion, issued in a single paragraph, dealt a major blow to abortion access in Texas. It also underscored the significance of the court’s ideological shift to right under former President Donald Trump. A