On Disappointed Presidents

President Trump’s response to impeachment proceedings seems more defiant than regretful. The President has expressed regret in other areas, however.  He “may[]” regret his appointment of Jerome Powell as Chair of the Federal Reserve. The President may also have reason to be disappointed in Chief Justice Roberts, a Republican appointee who has publicly countered the President’s attack on the independence of federal judges. Any disappointment suffered by the President would reflect Powell’s and Roberts’ independence and ability to remain in office while making decisions contrary to the President’s wishes. The independence of administrative agencies such as the Fed has been controversial. The independence of the federal judiciary is established by Article III of the Constitution.  

Supreme Court Justices have a long history of casting independent votes that disappoint the presidents who appointed them. President Eisenhower declared Justice Brennan one of his greatest “mistakes.” A disappointed President Theodore Roosevelt complained that he “could carve out of a banana a Judge with more backbone than” Justice Holmes. Historically, Justices’ voting records in non-unanimous cases reflect a strong tradition of independence, though there is reason to think that presidents have enhanced their ability to appoint ideologically compatible Justices in recent decades. As noted by Lee Epstein and Eric Posner, we may be on the cusp of a new era in which Justices’ votes align with the parties of their appointing presidents more than ever before. It seems unlikely that the Court will ever have another Justice like John Paul Stevens, a Republican appointee who generally sided with the liberal wing of the Court, or even a more moderate Republican appointee like Justice Kennedy.

Any shift to a more political court would still depend on Chief Justice Roberts, who may have a broader commitment to the Court’s institutional independence. And perhaps Justice Gorsuch’s commitment to originalism and textualism will lead to unexpected results in certain cases. The magnitude of any change would also depend on the types of cases that the Court chooses to decide. A Term in which the Court overruled Roe v. Wade and declared vast swaths of the administrative state unconstitutional would be very different than one in which none of these things occurred. 

Notwithstanding any increase in politicized voting, presidents ultimately lack power to create vacancies that allow them to appoint new Justices to the Court. Article III’s life tenure provisions instead allow Justices to choose when they will retire. In recent decades many Justices have chosen to remain on the bench and pass up politically opportune retirements. Justice Ginsburg declined to retire when President Obama was in office, and last year Justice Thomas declined to retire during President Trump’s first term in office. (Because it is an election year, none of the Justices are likely to retire voluntarily this year.) Both of these possible retirements would have maximized Justice Ginsburg’s and Justice Thomas’s odds of being replaced by like-minded successors who would remain on the Court for many decades to come. Justices’ autonomous retirement decisions present another facet of judicial independence that one would not expect to change any time soon.