If Donald Trump really has authoritarian inclinations, as many of his critics suggest (and they can point to a fair number of menacing proclamations and patterns of behavior to support their case), which American institutions can safeguard individual liberties during his presidency? The ease with which Trump steamrolled the Republican Party in the primary season suggests that the GOP-controlled Congress might not be particularly energetic about keeping the executive in line.
But another right-leaning institution just might. Supreme Court justices with lifetime appointments face less pressure to cave to the head of their party than politicians do. And the Roberts Court’s track record over the past decade has thrown up no shortage of obstacles to a president looking to consolidate power, restrict the opposition, or discriminate on the basis of religion. During the Obama years, many of these decisions frustrated the ambitions of the Democratic Party. But after inauguration, they will be equally binding on the Trump administration.
First, consider Citizens United, still a major bogeyman on the Left. The Court’s protection of corporate political spending seemed to many liberals like a giveaway to CEOs who oppose regulations and seek lower tax rates. But on most key social issues and some economic ones, corporations have become some of the Democratic Party’s staunchest allies. When the Indiana legislature drafted a religious freedom law that critics said would make it easier to discriminate against LGBT individuals, dozens of companies announced plans to punish the state. South Carolina faced similar corporate pressure when it was considering a law regarding gender labels on bathrooms. Last summer, many Fortune 500 companies protested Trump’s comments about Muslims and other minorities. Meanwhile, Silicon Valley and corporations like Walmart have been big supporters of the kind of immigration reform Trump won the primary by opposing. In the pre-Citizens United world, prosecutors and FEC authorities would have had much more of an opening to crack down on political activities they oppose—not just from corporations, but from civil society groups or the media. But the Court’s hard line on corporate political speech could wind up shielding anti-administration political organizing and fundraising from government intrusion.
Beyond generalized authoritarianism and intolerance of dissent, Trump’s critics argue that American Muslims were the chief targets of his campaign of demagoguery, and that their rights as a religious minority may come under assault during the Trump administration. Here again, precedent that was once considered right-wing may end up bolstering the claims of Trump’s opposition. In Hobby Lobby v. Burwell, a decision striking down a federal mandate requiring that Christian business owners distribute contraception to employees, the conservative Court majority found an expansive positive right to the free exercise of religion under the Religious Freedom Restoration Act, or RFRA. Hobby Lobby and recent state-level variants of RFRA have been attacked by the Left because they allow religious conviction to exempt individuals and firms from adhering to liberal pieties about gay rights and other culture war matters. But one can easily see ways in which this religious freedom precedent might protect Muslims from potentially discriminatory measures in Trump administration, like French-style bans on veiling or regulations designed to crack down on Muslim schools or mosques.
Along with freedom of speech and religion, federalism is one of the Constitution’s most important bulwarks against authoritarian federal power. That’s why, as Jelani Cobb noted in the New Yorker, elected officials in California and New York began to revive the language of state sovereignty in the wake of Trump’s upset victory. And as the law professor Ilya Somin has shown, the Roberts Court has made federalism claims more potent in a number of ways. In particular, NFIB v. Sebelius, the Obamacare case, and Shelby County v. Holder, the Voting Rights Act case, have come down firmly on the side of state’s rights to set key policies free of federal intrusion. As Noah Feldman writes in Bloomberg View, the NFIB ruling protects sanctuary cities from Trump’s threats to cut their federal spending if they refuse to deport illegal immigrants. Liberal states and cities are sure to clash with the new Republican executive on a number of issues, some of them still unforeseeable—especially if he moves to stifle those who oppose him, as critics allege he will. And blue state attorneys general might fall back on Roberts Court precedents they once opposed if and when they take the federal government to Court.
None of this is to say that all of the conservative Roberts Court precedent works against an aspiring authoritarian; the right-leaning justices are not doctrinaire libertarians, and they issued a number of rulings upholding government power and striking down individual rights claims in a variety of domains. And, of course, those with a more “realist” view of the justices as political actors might argue that they will merely start reversing themselves on major questions to favor an administration they sympathize with. But the justices are at least likely to be more consistent than capricious Congressmen, and their speech-protecting, religious liberty-sympathizing, and pro-federalism jurisprudence will take some time to undo. Perhaps this political shake-up will induce all of us to look beyond our momentary tribal affinities and consider more carefully the merits of moral arguments from those on the other side.
Update: This post has been edited for clarity.