“One is that a majority of the court thinks that the legal arguments the lower courts have made for stopping the initiatives in question are not strong, and either they're wrong or we need to have a holding action until we can decide whether they're right.
“So that's kind of the view that they're being minimalist here. They're not deciding a whole lot. That's part of it.
“I suspect here's another part of it, which is both the Chief Justice [John Roberts] and the court are in an extremely difficult position, the hardest position at least since the 1930s and maybe the hardest position going back a lot longer than that.
“And I think this is part of it, where the justices are aware that the president might say, ‘We're not going to follow what you do.’ That [Trump might say], ‘You said it, I'm the president, I get to take care that the laws be faithfully executed, and the judiciary isn’t final.’”
Most observers think such a situation would pitch the U.S. into a constitutional crisis.
Sunstein was speaking to The Court of History, a podcast hosted by the Princeton history professor Sean Wilentz and Sidney Blumenthal, a Clinton aide turned biographer of Abraham Lincoln.
Sunstein has himself been close to the center of power: a White House official under Barack Obama, he is married to Samantha Power, also a Harvard professor, having served as UN ambassador under Obama and USAid administrator under Joe Biden.
Photographs of the pair’s wedding in Ireland in 2008, available online, show Elena Kagan among attendees. Then Obama's solicitor general, she is now one of three liberal justices outnumbered by six conservatives on the Supreme Court.
Asked if his suggestion of justices' attempts to avoid confrontation with Trump came from knowledge of justices’ thoughts, Sunstein indicated having a source or sources close to the court.
“I don't know this from any of the justices,” he said, “not from them, but I think what I'm saying is … it's not merely speculation. [It’s] authoritative.”
Blumenthal then asked: “How do you feel about them factoring in the idea that as JD Vance, the Vice President, has said, the President should ignore Supreme Court decisions if he does not like them?”
Sunstein said: “Well, I feel of two minds.”
Though he was “very concerned by” the racial profiling case, “and concern is probably too weak,”, Sunstein added: “I haven't studied the briefs or anything, so I’m being a little cautious here [about] legal arguments.
“The tariffs case I have studied a bit.”
An appeals court recently said Trump lacked constitutional authority to levy tariffs on foreign trade, the centerpiece of his economic policy, saying the power is reserved for Congress.
The Supreme Court has said it will take up the case.
“I think the better argument is against the president,” Sunstein said. “I think I need to spend more time on it. But that’s I think what a neutral lawyer would be inclined to think. But the court is going to understand that there will be hell to pay if they go against the [president] on tariffs.”
The court has courted criticism among liberals by using the so-called “shadow docket” to let Trump policies stand, without definitive rulings.
Sunstein said: “I’m thinking that every month the court’s, let's say, caution about striking down things that are on balance unlawful looks less like a form of prudence and more like … I'm not sure what the right word is, well, it's not 'imprudent,' I don't think. I think the … easy words would be, like, 'cowardice.' But I think that's not precise enough.”
Sunstein then sounded a note of optimism about whether the court to which Trump appointed three right-wingers, and which last year ruled that as president he would have absolute legal immunity for official acts, might yet stand up to him all the same.
Of Roberts, Sunstein said: “I’m hopeful that the Chief Justice I admire — I’ve met him, but I don't really know him, still, I admire him, I think he's a person of integrity — and I'm hopeful that in very extreme cases, which we might well see sooner rather than later, he will be on the side of the law.”
