Civil Discourse Alive and Well at CSU|LAW: Professors Adler and Moncrieff Talk SCOTUS

The Cleveland State student chapter of the Federalist Society held an event in collaboration with the CSU student chapter of the American Constitution Society. We hosted Professor Jonathan Adler from William and Mary Law School. He and Professor Abigail Moncrieff discussed “SCOTUS response to the Trump administration: A matter of principle or appeasement.” Adler has written on this subject in publications such as Reason magazine and Civitas Outlook.   

Moncrieff noted that she and Adler have known each other for almost 20 years, and that even though they are on opposite sides on just about every issue, they have always been able to discuss ideas respectfully. In the wake of Charlie Kirk’s assassination, Moncrieff feels that this is especially important and we should be proud that CSU|Law fosters this kind of environment.  

Adler opened his remarks by contextualizing current court challenges to executive decisions. Over 400 cases have been filed in federal court challenging executive decisions. Of the cases that have been decided, Trump has an unbroken streak of opinions decided in his favor. Why is that the case? Isn’t that evidence that SCOTUS is just cowed to POTUS? Adler encouraged us to consider the underlying jurisprudential principles before drawing that conclusion.  

While it is true that Trump has been aggressive in using federal power, in ways that sometimes depart from norms about how we expect the Executive to operate, Adler reminded us that if we consider what we learned in Civ Pro his track record isn’t very surprising. 35 of the 40 injunctions that have been issued have come out of 5 judicial districts. When given the opportunity, plaintiffs file in the district that is friendliest. The 5 districts that have issued the majority of the injunctions tend to render decisions that don’t align with SCOTUS. Trump has only pushed 24 cases to the Supreme Court. And of course the President’s attorneys have chosen the cases they think they are most likely to win. To paraphrase Adler, if I can’t win two dozen cases out of 400, and they’re cases I’ve chosen given what I know about where SCOTUS stands, then I’m a pretty bad lawyer. Trump’s attorneys are doing what they can to make cases that they think won’t go their way move very slowly through the lower courts. If anything, it’s evidence that the Executive knows how to choose which cases to pursue, not that the Court is appeasing the President. 

Moncrieff’s response embodied a both/and approach. By her analysis, there is some evidence that the Supreme Court is acting on principle as well as some evidence of appeasement. Courts have some flexibility when ruling on cases in which a specific decision isn't 100% legally required. Moncrieff explained that prudential requirements aren’t grounded in the Constitution, but are more about a judge’s sense that a decision wouldn’t be a good intervention. But, Moncrieff asked, if 100% of the decisions in which the Court has some discretion go one way, isn't that evidence of appeasement? Maybe it is, but maybe that's not a terrible idea in the current climate.  

Take for instance the Supreme Court’s ruling ordering the President to facilitate the return of Kilmar Armondo Abrego Garcia in order to provide him with due process. If SCOTUS orders the Executive to do something, Moncrieff explained, and they refuse, that could cause irreparable harm. She reminded the group that Brown v. Board of Education only worked out because the President was in agreement. Moncrieff reasons that if the Supreme Court can’t enforce an order issued to the Executive, and if it is evident that the Executive will openly defy an order, there might be some wisdom in appeasement to a degree. However, Moncrieff also sees the Supreme Court as being too shy and overinterpreting the lessons of Abrego Garcia and Brown v. Board of Education. While she is not sure that appeasement is as bad as most liberals say, the Supreme Court may have gone too far. 

Adler closed by explaining that any time the Court restrains the Executive from doing something, it has automatically caused irreparable harm to the government. Moncrieff doesn’t disagree, in that when the Court considers issuing an injunction whether a misguided order will cause irreparable harm to the other side. Adler reminded those in attendance that, “Courts are not Swiss Army knives that can be used to solve every problem…We disempower ourselves as citizens if we think the courts can solve every problem.” 

The Federalist Society and the American Constitution Society hold independent and cooperatively organized events throughout the year.