Republicans Should Take the Long View on the Supreme Court
Editor's Note
American politics is divided today between those who wish to preserve our Constitution and our way of life, and those who seek to destroy them and raise up a new regime in their place. But even those in the former group rarely conduct themselves as if they understand the stakes. On the hot topic of the Supreme Court, Garrett Snedeker argues that Republicans have become distracted by the battles of the moment, and have forgotten the long and difficult war that must be waged to restore constitutional rule. He offers notes toward a concrete strategy that will secure the long-term direction of that fight without sacrificing the GOP’s advantage in the moment.
Three months into the Trump administration, Republicans are understandably frustrated by the relative lack of reaction from the Supreme Court to the proliferation of nationwide injunctions from the lower courts (many under spurious pretext) to Trump administration policies. The Court is not immune from warranted criticism. But we should be careful not to miss the forest for the trees: the Court must prioritize the longer-term project of repairing the wreckage of the Warren and Burger eras with an originalist jurisprudence, debates about which flavor of originalism nonwithstanding. Contributing to the decline in the Court’s credibility could harm that long-term project in the interest of short-term gains.
The major challenge to the Court’s standing comes from the Left. The Left has plumbed unprecedented depths to smear and harass the Republican-appointed justices on the Court over the past forty years. These efforts seek simultaneously to delegitimize the Court in the eyes of the public and to intimidate justices into “moderating” toward the Left’s preferred positions.
Public polling bears this out. According to Pew Research, “The gap between Republican and Democratic favorability widened dramatically, from roughly equal views in 2020 (75% vs. 67%) to a 39-point gap in 2024 (63% vs. 24%).” The Court’s current favorability rating (47% in 2024) is among the lowest in nearly four decades, comparable to 2015 (48%), and far below norms from twenty years ago. Of the three branches, the Supreme Court should be the branch least concerned with popularity. However, it does rely somewhat on positive perception, which affects the extent to which the political branches follow its lead in their own work.
With this in mind, how can Republicans navigate these troubled waters? They should resist the temptation to engage in scorched earth politics against the Court and allow the Democrats to continue in the role of the institution’s antagonists. I have hope that the public will grow weary of Democrat leaders’ intransigence. The Supreme Court is rarely at the front of the average voter’s mind; when it is, originalism described plainly has more appeal than the results-oriented focus of left-wing jurisprudence.
The Left’s antics are likely to turn off even those voters wary of the speed at which the originalist majority is setting aside old precedents. Recall the eagerness during the Biden administration of 48 Democrat senators to abolish the legislative filibuster, in no small part to pack the Supreme Court. Or the loud support Democrat leaders gave to President Biden in ignoring SCOTUS rulings on two major cases on student loan forgiveness and the COVID eviction moratorium. The Democrats’ left wing tends to overplay its hand in judicial battles, which leaves a clear opening for Republicans to establish a winning long-term strategy.
The Court’s conservative majority has already issued quite a few major rulings that roll back unsound precedents. Each of these rulings is an opportunity for President Trump to issue an executive order aligning the day-to-day operations of the executive branch with the long-view constitutional philosophy affirmed by the justices. The early slate of executive orders eschewing racial preference across the federal government, drawing from the reasoning in the Court’s opinion in Students for Fair Admissions v. Harvard, is a shining example of this strategy in practice.
To establish an even more unified front, the Republican majority in Congress should seize opportunities to build on major Court decisions with legislation. Most obviously, lawmakers could renew the push for the REINS Act, which would build on the Court’s opinion in West Virginia v. EPA, to force a congressional vote on regulations of major significance. Beating back regulatory overreach also pushes on a door the Court has unlocked in other major holdings. Trump’s executive order on DOGE and deregulation from February explicitly references language from the Court’s Loper Bright/Relentless majority opinion. Another executive order issued earlier in April directs federal agencies to evaluate whether existing regulations are in harmony with the Court’s rulings in a host of major decisions, including Loper Bright/Relentless as well as West Virginia v. EPA among other rulings. Further, congressional Republicans should pursue their own institutional authority to have a hand in regulatory affairs by creating a Congressional Regulation Office. After the Court’s decision in Relentless/Loper Bright removed judicial deference to administrative agencies’ own interpretation of vague statutes, an opening exists for Congress to build its own “institutional wherewithal to provide a counterpoise to the executive.” Exercises such as these would telegraph that Democrats’ “sky is falling” rhetoric on the recent decisions of the Court is reckless, and that the political branches are persuaded by the Court’s rulings.
Next, on the problem of district court judges handing down nationwide injunctions, congressional Republicans can take some of the heat off the justices (while simultaneously raising the urgency for the Court to deal with this issue themselves, which they possess the power to do) and try to limit the scope of these injunctions under the Federal Rules of Civil Procedure. While Congress has delegated refining the federal rules to the Judicial Conference of the United States, the legislature retains the authority to make larger changes, such as requiring multi-member panels of judges to hear cases of first impression that seek as a remedy a nationwide injunction. This change in policy has been proposed by Sen. Chuck Grassley most prominently. Congress could also hold hearings on reforms to Rule 65 of the Federal Rules of Civil Procedure governing these injunctions.
Additional funding of security for the justices should also be highlighted as a bipartisan solution to dissuade bad actors — but also to tie Democrats visibly to the rising extremist danger to the Court. Relatedly, Republicans should cheer the humanization of Supreme Court justices to blunt Democrat attacks on them. Justice Samuel Alito has sat for interviews demystifying the Court and offering a human account of the targeting of him and his wife. Other justices who are the target of these actions should do the same, as well as testify before Congress on increasing their security.
Finally, and ideally, a constitutional amendment to fix the Court at nine total justices could truly end the brinksmanship that has characterized Democrat responses. This effort has advanced though Congress before, though not been fully adopted. The most recent and closest attempt was in 1954. As recently as this year, amendments to fix the Court at nine justices have been introduced. This is an easy argument to advance and win in the public square; at the very least, it would put Democrats on the record as supportive of Court packing.
What should Republicans not do? Two main temptations come to mind.
First, do not attempt to pass fruitless legislation to selectively defund judges in the district courts. Such moves, which may have rhetorical valence at the moment, have no chance at garnering enough support in the House and Senate. Nor would they likely be constitutional. Congressional appropriations do not divide up funding for judicial operations judge by judge. Although such legislation is not targeted at the Supreme Court, it is the worst kind of overreaction and likely to alienate the otherwise sympathetic justices toward the cause of rogue district court judges.
Further, this is not the moment to call for the retirements of Justices Clarence Thomas and Samuel Alito. Recall how President Barack Obama’s direct overtures in his second term toward Justice Ginsburg only hardened her determination to stay on the Court. Thomas and Alito are the two most reliable producers of opinions both analytically sharp and jurisprudentially wise. Calling for their retirements would be a massive own-goal when the Senate map after 2026 looks strong for Republicans and the Court needs public affirmations of the good work it’s largely doing.
This strategy ensures Republicans will retain the high ground, both moral and practical, in the contentious political and legal fights that still lie ahead of us.