In an interview released on Thursday, Supreme Court Associate Justice Amy Comey Barrett had to be asked twice what the nation’s highest court would do if Donald Trump turned up his nose at an adverse ruling and refused to abide by it.
In a wide-ranging interview with the New York Times’ Ross Douthat, Barrett was first asked about the extent of the president’s power over the government that has been a central tenet of Trump’s second term as his inner circle has pushed the so-called “unitary executive theory" that slots him above the legislative and judicial branches of government.
According to Trump’s last appointee to the court, who replaced the late liberal Justice Ruth Bader Ginsburg in 2020, “It would imply strong presidential power over executive agencies. There has been a lot of debate and some new originalist scholarship debating right now whether indeed it has sound originalist credentials. But yes, it is one that has traditionally been associated with originalists.”
She then noted that debate is currently being addressed “in some of the cases on the court’s docket now.”
With that looming over the court as an avalanche of challenges to the current president are overwhelming federal courts, Douthat pointed out to the justice, “The Supreme Court does not command the power of the purse, doesn’t command the military, doesn’t have police powers. What it has, in a sense, is prestige, public support, a historic constitutional role.”
Adding, “... we’re in a moment — and we don’t have to make this specific to the Trump White House — when it’s very easy to imagine, from either the left or the right, some present or future president deciding to test the court, Andrew Jackson-style, saying: Interesting ruling, Justice Barrett. Good luck enforcing it,” he proposed, “How do you think about that potential challenge, as a member of the court?”
Admitting the NYT columnist was correct, Coney Barrett attempted, “Just as the court must take account of the consequences on the institutional dynamics, say, between a current president and a future president, the balance of power between the executive branch and the legislative branch, that of course, those same kinds of institutional concerns for the long run are ones that play a part in the court’s separation of powers decisions and always have, because they also are reflected in concerns of the constitutional structure.”
Unsatisfied with the lack of clarity in her answer, Douthat pressed, “OK, let me try that again: If a president defied the Supreme Court, what would you do?”
Coney Barrett then admitted that the court’s hands would largely be tied because there is a limited enforcement mechanism at its disposal.
“Well, as you say, the court lacks the power of the purse. We lack the power of the sword,” she conceded. “And so, we interpret the Constitution, we draw on precedents, we have these questions of structure, and we make the most with the tools that we have.”
You can read her entire interview here.
