NEW YORK (Reuters Breakingviews) - The U.S. Supreme Court may show Donald Trump who's boss. A currently business-friendly tribunal could very well back certain White House efforts. In recent decades, however, it has been ruling against presidents more often, new research shows. That means Trump may be a loser when it comes to matters such as immigration.
Neil Gorsuch, the president's conservative nominee to replace the late Justice Antonin Scalia, faces Senate hearings beginning on Monday. He'll need to brace himself for Democrats smarting over the refusal by Republicans even to consider Barack Obama's pick a year ago for Scalia's seat, Merrick Garland. Nevertheless, barring any surprises, Gorsuch's intelligence and impeccable record as a lawyer and federal judge make confirmation likely.
That should be good news for Trump and his generally pro-business policies. Gorsuch has in several opinions criticized the so-called Chevron deference, a decades-old practice of allowing federal agencies to interpret regulations with minimal court interference. He doesn't believe expert bureaucrats can be better than judges at reading specialized laws. That should be music to the ears of a president calling for a 30 percent cut in the Environmental Protection Agency's budget and evisceration of the Dodd-Frank Act and Clean Water Act.
As a lawyer in private practice, Gorsuch blasted class-action cases that allow shareholders to band together in, for example, securities-fraud lawsuits against companies, saying they impose "an enormous toll on the economy." Trump, who settled a class-action complaint against Trump University for $25 million last year, probably agrees. And Gorsuch could provide a fifth vote to the four justices who opposed mandatory public-sector union dues in a case that deadlocked 4-4 a year ago, leaving the fees in place. Trump last month reaffirmed his opposition to them.
The nominee has actually championed the powers of the presidency. As a member of the Justice Department in 2005, he supported the authority claimed by the George W. Bush administration over surveillance and interrogation, according to emails released on Friday. Even with Gorsuch and perhaps additional conservatives on the Supreme Court, however, the justices will be far from presidential pushovers.
The White House has grown enormously powerful since World War Two, commanding an administrative state, the legal expertise of the solicitor general's office and, often, the ability to rally public opinion to its side. The top court understandably might shy away from challenging that authority, wanting to safeguard its budget and jurisdiction. In fact, President Franklin Roosevelt's win rate at the court was more than 60 percent and President Ronald Reagan's almost 80 percent, according to a study published earlier this month by the University of Chicago. Since then, it has been steadily downhill, with the victory rate dropping to about 50 percent for Obama.
Maybe the Supreme Court has just been reacting to an increasingly aggressive executive branch. Stymied by congressional gridlock, Obama relied on executive orders to stiffen gun control, ease economic sanctions against Iran and allow certain immigrant children to remain in the United States. Critics called it illegal usurpation of legislative power. Yet he issued fewer such orders per year than any other president since Franklin Roosevelt, who signed by far the most. What's more, FDR's creation of the administrative state and Reagan's extensive deregulation efforts make them perhaps the most aggressive of recent presidents, and they have among the highest win rates.
Another possibility is that presidents and the court have increasingly diverged ideologically. Comparing the philosophies of each president with that of the median justice on the court of the relevant era, however, the research finds little correlation. Reagan, in particular, was substantially out of step with contemporary justices.
The best explanation for the plummeting presidential win rate could be that the justices are gaining confidence and flexing legal muscle. They have been striking down statutes and executive orders at a significantly greater clip at least since the 1980s. It's unclear why, but partisan gridlock affecting Congress and the executive may have prompted the court to, in effect, act like the grownup in Washington and downplay fears of retaliation from the squabbling branches.
What's more, the White House no longer monopolizes the best Supreme Court advocates. There are a growing number of law-firm specialists with decades of top-court experience and the legal chops to match anyone from the administration's crop of litigators.
None of this, of course, stops Trump from boasting "We're going to win" in the Supreme Court. It's his standard response to legal challenges, from the Trump University case to a lawsuit over business conflicts of interest to, most recently, two rulings that block his ban on travel from certain Muslim countries. Additional cases involving his controversial policies are almost certainly coming, and victory will require more than bluster from the bully pulpit. The Justice Department on Friday, for example, backed a lawsuit challenging the constitutionality of the Consumer Financial Protection Bureau because the president can't fire its director at will.
Trump's supporters in corporate America also may have reason to worry. Hopes for a freer marketplace could dim quickly if courtroom battles don't go his way. He may be America's chief executive, but the Supreme Court is proving to be an attentive board of directors.