Trump’s Effort To Pack The Supreme Court Hasn’t Panned Out Quite The Way He Hoped It Would

Trump’s Effort To Pack The Supreme Court Hasn’t Panned Out Quite The Way He Hoped It Would

Supreme Court Holds Investiture Ceremony For Associate Justice Ketanji Brown Jackson

Photo by Collection of the Supreme Court of the United States via Getty Images

By now everyone knows that a combination of Mitch McConnell’s machinations and RBG’s ill-timed date with mortality afforded Donald Trump the opportunity to appoint three justices to the High Court. Quite a coup for a single 4 year term.

Anyway, Trump may act like the judges he appoints to the bench are his personal lapdogs, but that’s not the way lifetime appointments work. And now there’s data to support the independence of the Supreme Court.

University of Southern California Law professors Lee Epstein and Rebecca L. Brown recently analyzed SCOTUS voting records from 1937-2021 and found the “Roberts Court is the most ‘anti-president’ court in that period.”

The ABA Journal breaks down exactly what that means:

The average win rate for presidents over that period was 65.2%. Trump fared the worst, with a win rate of 43.5%, followed by former President Barack Obama, who had a win rate of 52.4%, and President Joe Biden, who had a win rate of 56.5% through the court’s 2021 term.

The win rates are based on orally argued cases that implicated presidential power, including cases in which a party was the United States, an executive department or a department head, an independent agency or the president.

Trump fared even worse in “high-stakes” cases, that is cases about presidential power that appear in a casebook or that made the front page of he New York Times the day after they were decided. In those big ticket cases, Trump’s win record was only 35 percent.

Of course, the “why” behind those numbers is very much up for debate. In general, the Roberts Court has been generally anti-administrative state. And the authors told the New York Times they can’t determine whether this “speaks to the court’s view of him and his administration or to the justices’ increasing willingness to check executive authority.” But with a lot of noteworthy case involving Trump coming up, “the data suggest a bumpy road for Trump in cases implicating presidential power.”


Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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