In a striking admission about the limits of judicial authority, U.S. Supreme Court Justice Amy Coney Barrett conceded in an interview last week that the high court would be powerless to enforce its rulings if a president, such as Donald Trump, openly defied orders that clashed with the administration’s political agenda.
Speaking with The New York Times columnist Ross Douthat on his podcast, Justice Barrett acknowledged the judiciary’s institutional weakness when faced with executive non-compliance. “[T]he court lacks the power of the purse,” she stated. “We lack the power of the sword. And so, we interpret the Constitution, we draw on precedents, we have these questions of structure, and we make the most with the tools that we have.”
The admission came as part of a deeper discussion on the extent to which justices consider the current political climate and legal landscape when formulating their rulings. Douthat posed the scenario that a president could easily tell the court, “Interesting ruling, Justice Barrett. Good luck enforcing it.”
Institutional Concerns and Political Reality
Justice Barrett suggested that these institutional concerns for the long run play a significant role in the court’s separation of powers decisions.
“[J]ust as the court must take account of the consequences on the institutional dynamics, say, between a current president and a future president, the balance of power between the executive branch and the legislative branch, that of course, those same kinds of institutional concerns for the long run are ones that play a part in the court’s separation of powers decisions and always have, because they also are reflected in concerns of the constitutional structure,” Barrett explained.
Originalism and the ‘Unitary Executive’
The conversation also touched upon the Justice’s judicial philosophy, originalism, which she defined as the view that “the Constitution should be interpreted consistently with the meaning that the words of the Constitution had at the time that it was ratified.”
Consistent with her former mentor, the late Justice Antonin Scalia, Justice Barrett is also a proponent of the “unitary executive” theory. This structural theory implies “strong presidential power over executive agencies,” asserting that the president must retain control over the entire executive branch.
Barrett referenced historical debates from the Great Depression and F.D.R.’s New Deal about whether Congress could create administrative agencies independent of presidential control.
Justice Barrett and her conservative colleagues on the bench are expected to use this term to potentially solidify the “unitary executive” theory, with the court poised to revisit long-standing precedents. These cases could impact the president’s authority to remove members from independent federal agencies without cause and the authority to issue line-item vetos, which allow a president to reject specific provisions of a bill.
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