Deep Dive with Shawn

Order in the Court: Is the Judiciary in Crisis Under This Trump Presidency? (w/ Professor Tara Grove)

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American democracy faces a defining challenge as the judiciary—our system's intended steady hand—confronts unprecedented attacks from a presidency openly questioning its legitimacy. Trump's declaration that he can ignore Supreme Court rulings represents more than partisan rancor; it threatens constitutional governance itself.

Professor Tara Grove joins the pod and offers critical perspective by examining historical confrontations between courts and presidents. While Lincoln tested judicial authority during the Civil War and FDR privately threatened to defy the Supreme Court during WWII, today's explicit challenges to judicial legitimacy feel distinctly dangerous. When Roosevelt informed his attorney general that Nazi saboteurs would not be released regardless of court rulings, this knowledge influenced justices to approve military tribunals rather than risk institutional humiliation. Similarly, when implementing Brown v. Board of Education, the Supreme Court adopted the notoriously weak "all deliberate speed" standard specifically because justices feared southern states would openly defy stronger mandates.

These historical examples reveal the judiciary's fundamental vulnerability—courts possess neither budget authority nor enforcement powers, only judgment. Their effectiveness depends entirely on other branches' willingness to comply with rulings. The post-Civil Rights era established a crucial norm of compliance that Trump now threatens to unravel. His administration has already demonstrated selective compliance, ignoring the TikTok ban and twisting itself into knots to justify not returning Bimbo Abrebo Garcia from El Salvador despite court orders.

As the Court prepares to rule on birthright citizenship, religious education funding, trans rights, and redistricting, justices must weigh not just legal principles but whether their decisions will maintain institutional credibility if openly defied. This precarious position raises profound questions: Are we witnessing democracy's unraveling or just another challenging chapter in America's constitutional experiment? And what responsibility do citizens bear in reinforcing judicial authority through our own respect for constitutional norms?

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Speaker 1:

So I think it's crucially important that since the mid-20th century, and really since the civil rights movement, there has been an extraordinarily strong norm of compliance at both the federal level and the state and local level, and I think that's what the Supreme Court is going to have to be banking on today. But it does concern me a lot that there have been attacks in the federal judiciary for the past five or 10 years, coming from different political sides at different times, and that people have pushed against this norm, and I think that's going to be a real challenge for the court today.

Speaker 2:

Welcome to Deep Dive with me, sean C Feddick. The judiciary has long been seen as the steady hand in our American system of checks and balances, the institution that stands apart from politics and partisanship, but under this second Trump presidency, that perception, and perhaps that reality, is under direct threat. Trump has made the courts a centerpiece of his political grievances, attacking judges, ignoring rulings and flooding the judiciary with loyalists who may be more committed to an ideology than to the Constitution. At the same time, the courts themselves are struggling to respond, torn between precedent, independence and the unprecedented nature of what they're being asked to decide. As a result, we may be witnessing the unraveling of judicial authority in our constitutional system. It's unclear if the courts can push back in ways that actually matter, or if we might be inching toward a constitutional crisis where the final arbiter of the law the courts are simply ignored, with the Supreme Court preparing to rule in the next couple of months on issues related to birthright citizenship, public funding of religious education, workplace discrimination, trans rights, funding for Planned Parenthood, due process for immigrants, residents and citizens alike, redistricting and the death penalty, in an environment in which the President, donald Trump, has stated that he has the authority to ignore Supreme Court rulings with which he disagrees and has suggested that he will, if he hasn't already. These questions have never been more in need of an answer To help us understand this moment and the stakes for American democracy.

Speaker 2:

I'm joined today by friend of the pod, dr Tara Grove, vincent and Elkins. Chair in Law at the University of Texas at Austin, legal scholar and expert on the judiciary, she's written numerous pieces about the courts and how the judiciary can respond to threats against its legitimacy, and also what meaningful reform to ensure its impartiality and endurance might look like. All right, if you like this episode or any episode, please give it a like, share and follow on your favorite podcast platform and or subscribe to the podcast on YouTube. And, as always, if you have any thoughts, questions or comments, please feel free to email me at deepdivewithshawn at gmailcom. Let's do a deep dive, professor Grove. Thanks for being here. How are you?

Speaker 1:

I'm doing okay. Thank you for inviting me.

Speaker 2:

Yeah, absolutely so. We're living through what I would characterize as extraordinary times. To some, we're witnessing the end of American democracy, to others we're experiencing a constitutional crisis, but to others, this is a dream realized the expansion of executive power, the diminishment of Congress and the judiciary, and it's this latter that I'm interested in talking about with you today. So the Supreme Court is winding down its term and that means that a lot of very consequential issues are going to be decided on, things like birthright citizenship, gun control, redistricting immigration that's just to name a few.

Speaker 2:

And Trump has suggested in past that he considers himself to be the final arbiter of law and that he may ignore rulings with which he disagrees, and frankly, he already is. He's ignored the TikTok ban, which we don't really talk about anymore. He's kind of twisted himself in knots to justify ignoring the Supreme Court order to facilitate the return of Kilmar Braygo Garcia, who has disappeared to a Salvadoran prison without any due process. But in the grand scheme, I guess in the arc of American history, I'm not quite sure how unprecedented this is. I know there's been other confrontations between the executive and the judiciary in past. During the Civil War, lincoln tested the court's authority, fdr did battle with the courts, so did Nixon, but regardless, this moment right now feels like a real threat to democracy, but you'd know better than I would. So how would you characterize the moment? We're in the pressure that this second Trump presidency is placing on the judicial system?

Speaker 1:

Right. So I think the first thing to keep in mind is that, in my view, it's hard to evaluate a political moment when you're living through that political moment. I think we'll actually have a much better understanding of our current political moment in 20 or 30 years, which is, of course, not what everyone wants to hear. Right, we want to understand things immediately, but I think that's actually quite hard and I think we understand the past probably far better than the people living through those moments may have understood it. Whether this is unprecedented, I think, is hard to say, in part because we are living through this moment but also because I think it's easy in hindsight to forget how difficult the moments were in the past.

Speaker 1:

So you mentioned the Civil War, and I think it's easy in hindsight to forget how difficult the moments were in the past. So you mentioned the Civil War and I think that's an important thing to think about. So after Lincoln passed away, was assassinated, I should say there was a huge amount of fighting between President Andrew Johnson and the Congress at the time. The Congress at the time wanted to reconstruct the South. The president was not as amenable to that, at least not the way that the Reconstruction Republicans were doing it, and so there were confrontations between Congress and the executive at that time, and Congress passed legislation over presidential veto and cases went to the Supreme Court. Southern states were challenging the validity of Reconstruction. The Supreme Court used various procedural mechanisms to get rid of a couple of those cases, and then a case came before the Supreme Court that involved someone who had been thrown in jail for protesting acts of the Reconstruction Congress.

Speaker 1:

Now this was a guy named William McArdle who was not, I would say, a great person. He was deeply opposed to Reconstruction, deeply opposed to giving people of color the right to vote. He was deeply opposed to many things that many of us today would find quite good. Yet in our constitutional system. I think it would surprise people to know that the editor of the Vicksburg Times, which is the role that William McArdle held at the time, was thrown in prison for writing what he believed in the newspaper, which is what he did. So it was the editorials he wrote, and they were pretty ugly editorials, but I think that would surprise people. So he filed a petition for writ of habeas corpus, that is, a petition to get out of detention, and the case went up to the US Supreme Court. When it got there this was in the middle of the impeachment trial of President Andrew Johnson. A pretty difficult time for the court, president Andrew Johnson, a pretty difficult time for the court, and the court held the case and while it was being held, congress passed legislation to take away the Supreme Court's jurisdiction to decide the case. So this was a constitutional challenge to reconstruction, involved somebody who had been put in jail although I think at the time he was on bail and the Supreme Court was confronted with a federal statute that said you can't decide the case and the Supreme Court said we can't decide the case. So I think that's a pretty extraordinary moment of confrontation and I think what's notable about it is one can look at this history in various ways. Right, william McArdle was not a great person by modern standards, and yet I think it probably would concern many people today the idea that the federal government can throw somebody in jail for what they're writing in a newspaper and that when the case goes before the Supreme Court, the response of Congress is not to say, okay, we're going to let the courts decide this, but rather the response of Congress is we're not going to let the courts decide this. So I think that's one example just to underscore that times can be difficult and have been difficult in American history.

Speaker 1:

Another pretty extraordinary example comes from the World War II era. So this is the Franklin Roosevelt administration that you referred to in your lead up. So during World War II, a group of saboteurs from Germany, so Nazi saboteurs came on US soil and they were going to do some really bad stuff. The plan was to actually undermine various American facilities, various American facilities, and, fortunately, one of the saboteurs. These guys weren't terribly organized. They were caught and one of the saboteurs gave them up, and the question was what to do with them. The Roosevelt administration did not put them through a normal criminal trial. They rather put them through a military proceeding. Even though one of those people claimed to be an American citizen, the case went up to the Supreme Court. It's a case called Ex Parte Quirin.

Speaker 1:

The Supreme Court okayed the execution of these individuals without writing an opinion, and they were executed before the Supreme Court actually wrote the opinion explaining why that was okay. One thing to note about that case while it was pending in the Supreme Court, franklin Roosevelt told his attorney general, francis Biddle, that no matter what the Supreme Court did, roosevelt would not release the saboteurs. And history tells us that Franklin Roosevelt's declaration to his attorney general made its way somehow to the Supreme Court justices. So when they decided that it was okay to execute the saboteurs, most of them were executed. One got a life sentence. The justices knew that any alternative ruling would not be obeyed by the president.

Speaker 1:

Now again, this is a complicated time right. This was a tremendous threat to the United States at the time, right that Nazi saboteurs had come onto US soil and were planning really, really bad things, and the then FBI director, j Edgar Hoover, said that the capture of these folks was a great American achievement, and actually the public opinion was very much in favor of Roosevelt and against the saboteurs. Public opinion very much wanted the execution of these individuals. But I think this once again underscores that the Supreme Court in the past has been confronted with some really difficult situations, and so it's very, very difficult to say if the current moment is unprecedented or just a continuation of some difficult times in American history.

Speaker 2:

So I want to pull up one of the threads here, which is this idea that the court might have known how FDR was going to respond to an adverse opinion coming from the court and that they may have tailored their response in such a way as to address that. Because I do think that the Supreme Court today is well aware of what Trump is saying and the challenges that he's posing for the court, and so I have to imagine that the justices at minimum, or at least Chief Justice Roberts, is thinking about how the court can respond in such a way not just to speak to the merits of a case but also to the potential response coming out of the presidency. And I guess I wonder if you can imagine what effective judicial responses could be that go beyond the merits of a case but really do speak to a challenge coming from the executive on the authority of the Supreme Court.

Speaker 1:

This has been a challenge for the US Supreme Court throughout its history. What an executive official in contempt of court that is for failing to obey a decision. But at bottom, courts have to rely on the willingness of others to obey their decrees. The judiciary, the least dangerous branch, and I think some people today say well, how can that be? They're deciding major issues on the regulation of guns, the regulation of abortion, foreign affairs, huge issues. How can they be the least dangerous branch? Well, as Alexander Hamilton told us in the Federalist Papers, because they have neither the person or the sword. They have only judgment. And the importance of those judgments matter only to the extent that others will obey them. And throughout our history the Supreme Court has faced this dilemma. You know both. Will other actors comply with their decisions and what do they do in response? So the earliest example of this, or one of the earliest examples of this, is actually a case that's very, very famous for something else, and that's Marbury versus Madison in 1803. So many people today are aware that at this time there was a lot of disagreement between the Democratic Republicans and the Federalists. I teach this to my students and thanks to the musical Hamilton, people are much more familiar with this era of history, which is kind of handy. And you know, one of the things I underscore for my students and they do get this, in part because of the musical Hamilton in the election of 1800, when Thomas Jefferson faced off against John Adams so it was the Thomas Jefferson's Democratic Republicans versus John Adams' Federalists previously George Washington's Federalists and these two political parties hated each other and they firmly believed that if the other political party gained power, that would be the end of American democracy. And this has great resonance with my students today. Right, think about this. And this was the world in which the Supreme Court decided the case of Marbury versus Madison.

Speaker 1:

Now, prior to that case, right before John Adams left office, the Federalists had tried to dramatically expand the federal judiciary so that Adams could appoint a bunch of judges. And when the Jeffersonians came into office Thomas Jefferson did indeed win the election they repealed that law, which meant they fired Article III judges, so judges that were supposed to have tenure and salary protections. They were fired, and some of these judges had served for about a year before the repeal was finally passed. In that same period, congress delayed the Supreme Court's term such that the Supreme Court did not hear any cases as the Supreme Court in 1802. And that's actually why Marbury was decided in 1803.

Speaker 1:

Marbury versus Madison was the effort of a guy named William Marbury to actually get a job as a non-Article 3 judge in Washington DC and the Jefferson administration had refused to deliver the commission. So the idea was hey, james Madison, deliver the commission. James Madison didn't show up for any of the court proceedings and Chief Justice John Marshall knew that if the Supreme Court said, secretary of State, james Madison, you must deliver this commission to William Marbury. It was extremely unlikely that the Jefferson administration would do anything at all. What the Supreme Court ultimately held was that it lacked jurisdiction over the case and this is why Marbury versus Madison is known as a case about judicial review, because they held that the statute granting that, they said, granted them jurisdiction in the case was unconstitutional. So it's known as this case. That was just a declaration of great Supreme Court power. But if you look at the history, what it also reflected was a moment of great Supreme Court weakness and it's really hard to look at that history and think that the background knowledge that Thomas Jefferson would not listen to anything the Supreme Court said had no impact on what they did.

Speaker 1:

Fast forward in history. You can look at the Civil War, you can look at World War II, but I actually want to fast forward to the Civil Rights Movement and Brown versus the Board of Education. In Brown, as I suspect most people know, if not everyone, the Supreme Court declared segregation in public education to be unconstitutional. But then the question was what's the remedy? There were segregated public schools throughout the country. So in 1955, the Supreme Court took up that question Like what do we do? What do we have them do? And in 1955, then NAACP attorney Thurgood Marshall said to the court you have to impose a firm deadline. You have to tell all of these states with segregated schools that they must stop by a certain date. Thurgood Marshall said that date should be either September 1955, which, by the way, would have been a couple of months from the oral argument, or September of 1956, if you want to give them another year.

Speaker 1:

Well, the justices and we have records of judicial statements from within the chambers that have come out since the justices were terrified that the southern states would not obey any such decree. So instead they said, in a case that has come to be known as Brown 2 in 1955, they said that desegregation should take place with, quote-unquote, all deliberate speed. Now, for anyone who's studied the civil rights movement, they've probably heard this term. And, as I say to my students when I'm talking about this, I say just imagine your professor tells you your paper is due by May the 4th but then later says actually no, no, no, just turn it in with all deliberate speed. When do you turn in that paper? And my students typically say, well, not for a long time, maybe never. And I say that's exactly what happened after Brown too.

Speaker 1:

By 1964, 10 years after Brown, versus the Board of Education, less than 2% of the schools across the South that had been segregated were desegregated Less than 2% by 1964.

Speaker 1:

All deliberate speed meant basically nothing. So these are situations where the Supreme Court was faced with government officials whom they feared would not comply with their orders and the Supreme Court backtracked. So I think it's crucially important that since the mid-20th century, and really since the civil rights movement, there has been an extraordinarily strong norm of compliance at both the federal level and the state and local level, and I think that's what the Supreme Court's going to have to be banking on today. But it does concern me a lot that there have been attacks in the federal judiciary for the past five or 10 years coming from different political sides at different times, and that people have pushed against this norm. And I think that's going to be a real challenge for the court today as it looks back at this history and thinks how it will be evaluated in the future, because I don't think many people look back on all deliberate speed with great fondness.

Speaker 2:

So I'm glad you bring up Brown 2 and all deliberate, speed that language, because when I read the Abrego-Garcia decision I had a little bit of a whiff of Brown 2 in the language of facilitate the return. We perhaps will never know, but it felt to me as if the Supreme Court was being maybe a bit too cute by half in using the language facilitate, giving themselves a little bit of wiggle room, or maybe giving the administration a little bit of wiggle room, such that if the return was not successful, or if Trump determined that the administration was not going to return Abrego Garcia, that that facilitate administration was not going to return a Borrego Garcia, that that facilitate language was the out for them, did you get the same sense?

Speaker 1:

So I think it is always very difficult, when courts are dealing with matters that impact the United States relationship with foreign countries, to figure out what courts. We can't tell you what that is, because undoubtedly diplomatic relations are going to have to depend a bit on the executive's power and executive discretion. But I think you're right too. It allowed some wiggle room in terms of the interpretation of whether the executive was actually going to comply with that order. Now, what facilitate clearly does not mean is nothing at all, which some people took to be the immediate response of the administration in that case, and in some ways that makes it easy right. Well, you're not facilitating if you're refusing to do anything at all. My understanding is that may be changing now, and then I think we will be very much faced with a question that you raised. Facilitate may actually mean an attempt, an attempt that is unsuccessful. That may be compliance with the Supreme Court's order, but certainly not satisfactory at all to people who are concerned about this case.

Speaker 2:

So I mentioned earlier this idea that some people think that we are already in a constitutional crisis. Others think that we're staring down the barrel of one. To your mind, when are we actually in a constitutional crisis, and what does that look like?

Speaker 1:

So I think this is a truly, truly difficult question. As I said earlier, I don't think one can easily evaluate or label a political moment when one is living through that political moment. I think it's very, very hard for us to understand whether we are in or not in a constitutional crisis, and I think it's also important to pause and consider what we think that means and consider what we think that means. So I hear a lot of people and I've been asked this question. I can't tell you how many times over the past couple of months. Are we in a constitutional crisis? And what people don't then pause to wonder is well, if we are, how does that change the daily lives of individuals living in this country? If the answer is it doesn't, then the label doesn't really matter one way or the other, right. The other reason I'm concerned about people using a label like that too quickly is, I think, that it makes it easier for government officials who were otherwise inclined to act without tremendous deference for the judiciary or judicial opinions to say well, we're already in a constitutional crisis, so there's no turning back now, and I think it's really important to recognize that we're not there yet as a country.

Speaker 1:

There are still many statements from the executive branch saying we must comply with federal court orders. There are examples, really important examples of compliance, including when the Supreme Court issued its midnight order a couple of weeks ago saying you may not remove any of the individuals from Venezuela that are currently challenging their detentions. You may not remove them and, at least according to the parties in the case, remove them. And at least according to the parties in the case, that order led the government to turn trucks around that were on their way to the border in Texas. So I think that there are still many, many examples where the executive branch is adhering to the norm of compliance, and I think it's important that we emphasize there is that norm and that's a crucially important part of American democracy.

Speaker 2:

If we were to look into the future and we were in a position where we needed to rebuild American democracy, or we could even take this from a different position, if we were just to imagine what a fortified American democracy would look like. I think that both people on the left and on the right would agree that they have a vision of how the judiciary could be designed better in our American democratic system, how it could be, rightly or wrongly, less biased, depending on how you view the court less partisan, more independent and you've worked in judicial reform or worked on judicial reform a bit, so could you maybe help me understand what a stronger, more independent judiciary would look like if we could design it today to withstand some of the shocks that it's experiencing?

Speaker 1:

So I think there is a tendency and this is a tendency that has existed throughout our history to say that when a court, or several courts, issue a decision that we don't like, we being whoever disagrees with the decision at the time that there's something wrong with judicial independence. The judiciary must be biased if they're not ruling in the way that I like, and we've seen this throughout our history. So in the late 19th, early 20th century, populists and progressives viewed the courts as pro-business, and so they attacked the courts and tried to take away jurisdiction over cases involving big business. Franklin Roosevelt, of course, proposed expanding the court to 15 members after the Supreme Court was perceived as invalidating many of his New Deal measures. It's actually important to note that the Supreme Court upheld New Deal measures even then, and in the 1950s, 1960s, 1970s and 1980s, a lot of conservatives were very unhappy with the United States Supreme Court. So there were proposals to impeach Earl Warren, there were proposals to take away federal jurisdiction over cases involving school prayer and abortion, and even desegregation to the extent that it involved busing, and in all of these situations, people have said the courts are biased.

Speaker 1:

When I look back at that history, I see judges who obviously have perspectives and everyone, whether the person is a lay person on the street, a member of the executive branch, a member of a state legislature or a judge at the state or federal level, has a perspective. That person has a background. That background involves where they came from, their ideology and lots of things. But what I have seen in looking at our history and in talking to federal judges today and really over the past five or 10 years, is that that's not how they look at their jobs. If you talk to a federal judge, no matter who appointed that judge, in almost all cases all cases that judge is going to say look, I try my best to decide the cases on the law, and not because the particular president who appointed me wanted me to decide it that way, not because the particular Senate that confirmed me wanted me to decide that way, but because that's what I view as the best decision on the law.

Speaker 1:

Now are there times when I disagree with court decisions. Of course. Are there times when I think in our history have politics influenced the way the Supreme Court has decided a case? Probably, but in the larger measure of hey, these people view things from a different perspective than I might view them view things from a different perspective than I might view them. All this is to say I think people on all sides greatly overstate the lack of judicial independence of our federal judiciary today. Lots of people have asked me well you know, doesn't a particular administration just kind of control the court at a particular period of time? This has been true for the past five or 10 years and my answer is always no, no, they don't. So I think many presidents have done a pretty good job of appointing and many senators have done a pretty good job of confirming federal judges. My only concern today is whether that will continue and we will continue to have a judiciary that, by and large, does act independently.

Speaker 2:

All right, final question you ready for it? Of course, what's something interesting?

Speaker 1:

you've been reading, watching, listening to or doing lately, and it doesn't have to be related to this topic, but it can be. So I do spend a lot of time reading about law, including history and current events. But in terms of interesting things, my kids are really involved in music and dance and theater, and this is the time of performances and recitals. So yesterday I was at my son's theater performance at school, last night I was at his band performance. This weekend I'm going to his other theater performances. My daughter just had a dance recital and has some piano recitals coming up, and I think you know, when we're feeling concerned about the world around us as I think many of us are and have been for some time it's really important to remember that there's still those everyday things that can give us great joy.

Speaker 2:

What productions is your son in?

Speaker 1:

So it's both. The school play was this week and he's in a community theater production. I don't think these are productions that most people would be familiar with. The one that his school did that people might have heard of. Last year he starred in Rock of Ages, which is a musical.

Speaker 1:

It was a sanitized version of the musical from middle school, um, but most of the productions um, I actually give credit to his, his drama teacher, both at school and also the um zach theater here in austin. Um, they do a really good job of finding productions that are not widely known, right, right that that um people from the Austin area, um people involved in education, have have put together and and they perform these, and they're usually pretty funny and pretty cute and very much designed for middle schoolers.

Speaker 2:

That's cute. I, uh, I did theater. No, that's not true. I did one theater production when I was in high school. I was able to graduate early, so I could have graduated in December from high school, but I was in the production of Diary of Anne Frank and that didn't. We weren't actually performing it until February, and in order to stay in the production, I had to do, I had to finish the school year, go through June, and I did choose to do that, but that was it. That was it for me. That was the one thing, so we'll see how it pans out. I suppose for your son it's a fun. It's a fun experience, right?

Speaker 1:

Yeah, yeah, I mean music is is a huge part of his life. He's about to start high school and he's going to be in the marching band and choir and probably continue theater and study too, I hope.

Speaker 2:

Yeah, very cool, professor Grove, thanks for taking the time and for the conversation.

Speaker 1:

Thank you.

Speaker 2:

The courts are not immune to the political environment currently shaking the foundations of American democracy. In fact, they may be its last line of defense or its next casualty. The judiciary's strength lies not just in legal doctrine, but in the public's willingness to respect its authority. As Trump tests the limits of that respect, the stakes could not be higher, and the next few months will be critical as the courts struggle with ways to hold the administration accountable, to ensure acquiescence to its rulings and act as an effective check against the rise of authoritarianism. All right, deep Dive will be on vacation for a while, because in the next couple of weeks we'll be launching our new limited series, leaving America. If you've ever thought or are thinking about moving to another country for whatever reason, to escape the political environment, to escape the gun culture, for lower taxes, for better health care, this series is for you. So keep checking back on the Deep Dive with Sean feed for the Leaving America limited series. Chat soon, folks, thank you, thank you.

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