Left: Donald Trump speaks at the annual Road to Majority conference in Washington, DC, in June 2024 (Allison Bailey/NurPhoto via AP). Right: Justice Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmation hearings on Capitol Hill on October 14, 2020 in Washington, D.C., (Jonathan Ernst-Pool/Getty Images).
During a recent conversation with The New York Times, U.S. Supreme Court Justice Amy Coney Barrett acknowledged that the Supreme Court would be powerless to enforce its decisions if the Trump administration chose to disregard rulings that clashed with the president’s political goals.
In a podcast interview with columnist Ross Douthat, she explained, “The court lacks the power of the purse and the power of the sword. We interpret the Constitution, draw on precedents, and tackle structural questions, utilizing the tools available to us.”
This admission followed a broader discussion about how much the justices consider the current legal and political climate when crafting their decisions. Douthat observed that it is quite conceivable for Trump or a future president to effectively say, “Interesting ruling, Justice Barrett. Good luck enforcing it.”
Barrett elaborated, “Just as the court considers the implications for institutional dynamics between current and future presidents, and the balance of power between the executive and legislative branches, these institutional concerns for the long term influence the court’s decisions on separation of powers, as they have always been intertwined with constitutional structure concerns.”
Barrett was nominated to the Supreme Court by President Donald Trump during his first term, following the passing of Justice Ruth Bader Ginsburg, a figure celebrated as a liberal icon. Previously a clerk for Justice Antonin Scalia, Barrett was Trump’s third Supreme Court nominee to be confirmed.
In the discussion, Barrett reaffirmed her belief in “originalism,” a philosophy she shares with Scalia. She described it as the idea that the Constitution should be interpreted in line with the meaning its words held at the time of ratification, emphasizing that this meaning, when clear, is decisive.
While there are numerous interpretations of originalism, a key component of the Scalia-influenced theory espoused by Barrett is that of the “unitary executive,” meaning that the president “has to control the executive branch.”
As Barrett explained, the structural theory behind the unitary executive theory implies “strong presidential power over executive agencies.”
According to Barrett:
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.
You can see this in debates during the Great Depression and F.D.R. and the New Deal and the explosion of the administrative state. Back then, you had a debate about how much Congress could create administrative agencies that fell outside the president’s control.
And there were some who said: No, the executive branch has to be fully within the executive’s control. And others who favored the New Deal expansion of the administrative state who said: No, Congress can take agencies and make them independent of the president’s control.
Barrett and her five colleagues on the conservative bloc of the court are poised to take several steps toward turning this theory into reality during the court’s latest term, as the court appears likely to overturn longstanding precedents involving the president’s authority to remove members from independent federal agencies without cause as well as the authority to issue line-item vetos, which allow the president to reject particular provisions of a bill, such as refusing to spend money specifically allocated by Congress.
