Where The Supreme Court’s Conservatives Might Split On Trump’s Agenda

President Donald Trump looks likely to be a frequent guest at the Supreme Court in the coming weeks. Through dozens of executive orders and other actions, he has challenged, or appeared to outright flout, the laws and constitutional provisions that have long placed limits on presidential power. More than 80 federal court challenges to his moves are ongoing. Others, no doubt will follow soon.

Trump may think he’s likely to largely prevail. After all, the Supreme Court is stacked with six Republican appointees, including three selected by Trump in his first term. The court also delivered him a stunning victory last year, establishing sweeping new criminal immunities for actions taken while president amid his indictments for trying to overturn the 2020 election.

But there is some reason to think that the six conservative justices might not stick together or inevitably side with Trump, at least in every case. When it comes to matters of presidential power, the dividing line is not always as simple as left versus right.

This dynamic strikes at the question of what it means to be a conservative justice today, particularly with a 6-3 supermajority on the Supreme Court. The conservative movement faces real internal contradictions. On the one hand, there is deep skepticism of Washington-based power — think of the tea party and its “Don’t tread on me” bumper stickers. On the other, there is an eager embrace of a muscular view of the presidency for Trump, and before him, George W. Bush and Dick Cheney. The two approaches to power coexist uneasily under the best of circumstances. In these circumstances, there may be a direct conflict.

Put one way, can a Supreme Court that just last year dramatically limited executive power by eliminating so-called Chevron deference now provide Trump with the authority to do whatever he wants in terms of impounding spending and dismantling agencies that Congress has established and funded?

Ideology and partisanship inevitably color some decisions at the court, but it’s also true that the six conservative justices have their own track records and approach the law in different ways. Particularly on certain issues where Trump is flexing the White House’s power, real tensions among conservatives exist.

For instance, Justices Samuel Alito and Neil Gorsuch may be more willing to shut down litigation over Trump’s firings of heads of certain agencies that were designed explicitly to operate with some independence from the president, while Chief Justice John Roberts may be more sensitive to appearances, and so less willing to act preemptively. Justice Amy Coney Barrett has shown a nuanced view of the president’s authorities, especially when it comes to the limits imposed by statutes. Justice Clarence Thomas has demonstrated the most resistance to the idea that the president can simply create new offices out of whole cloth. Provided they stick to their legal priors, rather than voting mechanically as Republican appointees, the justices seem likely to split on some of these cases — with real consequences for Trump’s agenda.

Here, then, is a brief tally of some of the most important constitutional questions potentially on the path to the high court, and how the conservative justices may approach them.

Immigration

Keep an eye on John Roberts and Samuel Alito

Since Justice Anthony Kennedy’s retirement, immigration cases have broken increasingly along simple ideological grounds, with the conservative justices consistently siding with the executive branch and against non-citizen detainees or prospective citizens. But two efforts by Trump have a chance of generating disagreement among the conservatives.

First, there is Trump’s push to have the federal government supersede state and city decision-making on local undocumented immigrant populations. The administration has threatened to deprive states of federal funds if they don’t comply with Trump’s immigration edicts, but states have some legal ammo at their disposal: The Supreme Court has previously been skeptical of the “commandeering” of state resources by federal officers. The leading opinions on this question favor the states, and were written by Roberts and Alito respectively. Just last year, both these justices also agreed that the Supreme Court should not side with the Biden administration and step in early to halt Texas’ efforts to enforce its own immigration law — a pro-state gesture that perhaps intimates the federal government doesn’t hold all the cards. Other conservative justices, like Kavanaugh and Barrett, have expressed a bit more hesitation when it comes to letting states defy the executive branch on immigration; it also seems likely that Thomas and Gorsuch would side with the Trump administration. At the least though, it is possible that blue states challenging Trump’s deportation push will be able to peel away one or two conservative justices.

Trump’s effort to narrow birthright citizenship could also come up against conservative resistance at the court. The administration’s reading of the 14th Amendment diverges from a century-and-a-half-long constitutional understanding. Justices that tout their originalist credentials, including Barrett, might struggle to side with Trump in this instance — especially given her seeming sensitivity to parental rights in recent arguments about transgender health care and young people. This concern about family integrity may cut against a dramatic narrowing of citizenship that, in practice, would slice families apart. Of course, the justices don’t always stick to their originalist creeds. It should also be noted that judges can change their minds, sometimes as the politics shift; note the seeming about-face of one prominent lower-court judge, who was previously an ardent defender of broad birthright citizenship.

Personnel

Clarence Thomas may surprise people

As part of Trump’s bid to expand presidential power, he’s fired a slew of officials, including at independent federal agencies that both statutes and Supreme Court precedent say he simply can’t do. But he might get backup among conservatives here.

Trump’s acting solicitor general recently expressed her intent to argue that the leading case authorizing such limits on the president was wrongly decided, and a recently fired NLRB board member, Gwynne Wilcox, has already launched a legal challenge to tee up the issue — which may be a notable victory of pique over prudence. That’s because she may be paving the way for a precedent-setting win for Trump, as there may not be real divisions on the right: All of the conservative justices have voted consistently to recognize a sweeping presidential power to remove senior officials, and they may be eager to take the chance to overturn Humphrey’s Executor v. United States.

It’s less certain, however, that Trump and DOGE’s broader attack on the federal bureaucracy will be greeted with unanimous conservative support at the Supreme Court. The argument for invalidating much or all statutory protection for the civil service is somewhat convoluted. At least one version of that argument turns on a decision that did not command Thomas’ assent. In that case, Thomas split from the other conservatives over which officials needed to be confirmed by the Senate. In contrast, Gorsuch wrote an opinion that seemed to see few limits on presidential power over the whole executive branch. Barrett, who has tended to write more carefully and to be more attentive to the details of statutes, was not on the court at that point. So some kind of split here is certainly plausible.

Departments

Neil Gorsuch may be a DOGE fan

The beginning of Trump’s second term already includes the effective creation of new departments without statutory authority — DOGE — and the elimination of other entities that have clear foundations in statute, like the Department of Education and Consumer Financial Protection Bureau. In both instances, there is recent precedent that goes against the White House — all authored by conservative justices.

Perhaps the most relevant opinion on creating new departments is again by Thomas: In the presidential immunity case, he wrote a separate solo opinion excoriating the idea that those who exercise significant power of the United States can work without nomination or Senate confirmation. Logically, many of Thomas’ concerns should apply to Elon Musk’s work at DOGE. And if DOGE is not, despite its name, a government entity in the first place, then it the runs afoul against a rule recently stressed by Alito against delegating government power to private actors. On the other hand, some conservative justices might be more favorably inclined toward DOGE. Gorsuch’s broad view of the president’s control powers, for example, might push him toward that end of the spectrum.

What of eliminating statutorily mandated departments? What the Trump 2.0 White House here is doing lacks precedent. But there is arguably relevant caselaw that throws real constitutional shade at the administration. Just this summer, all six members of the conservative bloc voted to dramatically scale back the discretion executive-branch actors have to put new glosses on old federal laws. That opinion was written by Roberts and joined by Barrett. Moreover, Thomas, Gorsuch and Kavanaugh have all written in favor of an even more rigid rule against delegating such authority. If you take these justices at their word and they were not simply eager to limit the power of Democratic presidents, then Trump faces a significant hurdle: What the White House is doing is seizing policy discretion in spades from Congress, albeit by shutting down programs rather than more modestly redirecting them. And that, in theory, should be invalid under the concerns about executive defiance of federal statutes that all six conservatives have flagged.

Spending

A conservative split looks more likely

Conservatives on the Supreme Court may be more divided on the White House’s claim to have free-wheeling power to refuse to spend appropriated funds — which could be bad news for Trump.

Trump’s claim runs in the teeth of not only Congress’ authority over spending as described in Article I of the Constitution and the text of relevant statutes, but in the contracts that the government signs with private entities. Both Kavanaugh and Roberts, before being appointed to the high court, subscribed to the conventional view that the president has no open-ended impoundment power. And just last year, Thomas wrote an opinion underscoring congressional control over spending. Gorsuch and Alito dissented, arguing that Congress lacked any power to delegate spending decisions, while Kavanaugh and Barrett joined the Thomas opinion. It’s hard to see how a conservative majority would coalesce around Trump’s impoundment clause, at least without some significant reversals of these views.

Still, it is far from clear that the White House would in practice lose much in such a confrontation: Imagine that the court feels pressed to the wall, and thinks (not implausibly) that the White House might not comply with an order directing it to spend certain funds. The justices might feel pressures to interpret the relevant statutes creatively, so as to find such authority. The president would have a win for the day, and depending on how mangled the statutes were left, perhaps a license for tomorrow too.

Free Speech

A big test for the Roberts Court

Many of the Trump executive orders use federal funding or the threat of civil actions as sticks to coerce private citizens or firms into silence. This is an area that could indeed divide conservatives and lead to rulings against Trump.

Trump has issued executive orders on DEI invoking the False Claims Act as a basis for prosecution, but they extend to only a narrow band of circumstances, largely involving federal contracting. The effect, however, has been to stimulate a broad pullback from DEI, including many First Amendment-protected activities. (A parallel FCC investigation of Comcast and NBC represent another, more direct, attack on free speech.)

The Roberts Court is generally sympathetic to free speech claims, and indeed recently indicated concerns about the government using regulatory threats to “jawbone” firms into compliance. Interestingly, in that case, Alito, Gorsuch and Thomas would have established an even more speech protective rule. So while these justices are also relentlessly hostile to affirmative action, there is some chance that they will feel committed to their own past writings and positions on the First Amendment — leading them to vote against the White House. On the other hand, Roberts has written cases to allow the president to effectively coerce universities on culture-war questions. He might be willing to do the same again.

Ultimately, for all these issues, a great deal obviously depends on the facts of the specific challenges heading to the Supreme Court. But it’s easy to see how coalitions among the justices might shift from one case to another, and how the conservatives might clash — with each other and with Trump.

The conservative supermajority has often adopted a broad view of presidential power, and so Trump may still win many of these cases. Yet some surprises may still be in store — especially because Trump is pushing the envelope in ways that may unsettle some legal conservatives. The only certainty is that the debate over how to define a conservative justice in the age of Trump won’t be settled any time soon.