After Supreme Court Losses, Trump Keeps Pushing

In the Supreme Court term that ended in June, President Trump suffered three stinging losses.

Or were they merely temporary setbacks?

Trump has said that none of the three rulings — on tariffs, the Federal Reserve and birthright citizenship — will stand in his way. Other paths exist, he said, to get to where he wants to go.

The administration insists that it will comply with the Supreme Court’s judgments and reasoning.

“All actions taken by the president since the recent Supreme Court rulings are consistent with the holdings and analysis set forth by the court,” said Lauren Bis, a White House spokeswoman.

Solicitor General John Sauer said much the same thing last year to the justices’ faces during the argument in an earlier iteration of the birthright citizenship case.

To say anything else, of course, could provoke a constitutional crisis. The administration has instead often adopted a different strategy, legal experts said, one that an article in The Duke Law Journal called “legalistic noncompliance.”

That strategy, Daniel Deacon and Leah Litman wrote, stops short of avowed defiance of the courts. Instead, they wrote, “legalistic noncompliance involves deploying the language of the law to shroud what are, in fact, bad faith efforts to evade judicial orders.”

Are the administration’s recent actions examples of that kind of noncompliance — or something more routine?

The tariffs ruling, for instance, said only that the federal law Trump had invoked did not authorize his levies. It did not consider whether other laws might empower him to pursue his trade agenda.

In a June decision blocking Trump from firing Lisa Cook, a Fed governor, the justices specifically contemplated further proceedings and did not rule on whether Trump could dismiss Cook if his accusations of mortgage fraud, which she has denied, were proven.

Let’s consider the three ways Trump has pushed back, one by one.

Within hours after the court struck down the key element of his beloved tariffs program by a 6-to-3 vote in February, for instance, he made angry remarks at a White House news conference. He called the justices in the majority, two of whom he had appointed, unpatriotic fools and lap dogs who had been swayed by foreign interests.

He twice quoted from the dissent written by his third appointee, Justice Brett Kavanaugh, who said the majority opinion “might not substantially constrain a president’s ability to order tariffs going forward.”

The court had merely ruled that Congress had not authorized the tariffs under a 1977 law, Justice Kavanaugh wrote. But he added that there were other laws, ones that “might justify most (if not all) of the tariffs at issue in this case — albeit perhaps with a few additional procedural steps.”

Justice Kavanaugh listed a few, including Section 301 of the Trade Act of 1974. Last month, Trump invoked that law to impose new double-digit tariffs on dozens of trading partners.

Fresh legal challenges are underway, and they may well succeed. But they will not turn on the Supreme Court’s ruling in February.

Trump’s shift in tactics is similar to one by President Joe Biden, who continued to pursue debt relief for students after the Supreme Court ruled in 2023 that he had overstepped his authority under a 2003 law with his plan to wipe out more than $400 billion in student debt.

Indeed, Biden seemed to taunt the justices in a social media post.

“The Supreme Court tried to block me from relieving student debt,” he wrote. “But they didn’t stop me.”

Those later efforts met with a mixed reception in the courts and were largely shut down when the second Trump administration arrived. But, as the Biden administration’s lawyers said about one of them in a Supreme Court filing, they did not run afoul of the 2023 ruling.

The new effort on student debt, they wrote, “relies on a different statute with different language to provide a different set of borrowers with different assistance.” Trump’s lawyers could say similar things about imposing tariffs using Section 301.

In the Cook case, Chief Justice John Roberts’s majority opinion said only that she had been denied due process when Trump sought to fire her from the Federal Reserve by means of social media post.

“Cook was entitled to some explanation of the evidence at issue, some avenue for a response and a deadline by which a response would be due,” the chief justice wrote.

Last week, that notice arrived in the form of a three-page letter from a White House official accusing Cook of making false statements on mortgage agreements, providing some detail and calling for a response within 21 days.

Cook’s lawyers were unimpressed. “These allegations are as baseless now as they were a year ago when President Trump tried to remove Governor Cook and interfere with the independence of the Federal Reserve,” the lawyers, Abbe Lowell and Norm Eisen, said in a statement.

For his part, Chief Justice Roberts wrote in June that “the ultimate question of whether the president can remove Cook for cause will depend in part on the underlying facts.”

Again, then, Trump could ultimately prevail not by defying the court but by following the road map it provided.

The new executive orders trying to limit birthright citizenship are a different matter. Major elements of them do appear to be in substantial tension with the court’s ruling in June that the Constitution grants citizenship to almost all babies born in the United States.

The orders seek to deny citizenship, for instance, to the children of “enemy aliens,” defined very broadly, and to children born to mothers who engaged in “birth tourism,” defined to include any “commercial transaction to ensure that the person’s mother is present in the United States” to give birth.

Neither of those new criteria is easy to reconcile with the court’s ruling, which noted only a few exceptions to the general rule, drawn from an 1898 precedent.

They did include the children of foreign enemies, but only ones “within and during a hostile occupation of part of our territory.” There was no exception for the children of temporary visitors, whatever their motives or financial arrangements.

Assuming someone has standing to challenge them, they would seem quite vulnerable.

Other Things Worth Knowing About

• Chief Justice Roberts published an essay on Substack about William Howard Taft, as part of “In Pursuit,” an initiative in which famous people write about presidents and first ladies. You can hear the chief justice read the essay, too, at that same link. Taft, the only American to serve as both president and chief justice, preferred the judicial post. The current chief justice approved.

• Speaking of Chief Justice Roberts, Margaret Talbot has a long profile of him in The New Yorker.

• Elisabeth Zerofsky took a hard look at the schisms in the Heritage Foundation for The New York Times Magazine. She found that it was “engulfed in an internal struggle that mirrors the one roiling the Republican Party: how to harness the energy unleashed by Trumpism without being completely overrun by its conspiracy- and nativist-minded elements.”

• Drawing on a new study of the roughly 16 million words uttered during Supreme Court arguments since 2005, I explored the lasting changes to those sessions prompted by the court’s improvised reactions to the Covid pandemic.

Mailbag

Readers’ Favorite Vanity Plates

Hundreds of you responded to my request for reactions to last week’s item about an appeals court’s ruling in favor of a Virginia man who wants to convey his stance about policing in seven characters on a vanity license plate: FTP & ATF.

It turns out that readers of The Docket have a lot of vanity plates of their own and strong views on whether the government should be able to censor them.

Some of you saw nothing obscene about the message Virginia is trying to ban. Among the benign interpretations: “Filled the Plate & Ate the Food,” “Forgot the Pie & Ate the Flan” and “Fete the Players & All Their Fans.”

Of those who deciphered the plate’s intended meaning, a majority objected to Virginia’s decision to cancel it, with several saying that a commitment to free speech requires tolerance of disagreeable messages. But plenty of people supported the state’s ability to reject vanity plates containing profanity or hate speech.

Most of the emails celebrated favorite vanity plates. “Clever vanity plates, particularly ones that take a second to figure out, always make me smile and appreciate the wit,” Evelyn Irwin wrote.

Among the plates that tickled readers were IMNXTZ and OU812.

Lots of readers delighted in successful attempts to smuggle sexual messages past officials. An example: 6ULDV8.

Others complained about plates that had been rejected for misguided reasons. A musician wrote about her struggle to obtain plates that said FUGUE, ultimately prevailing when she persuaded an official that it was a legit musical term.

The prosecution of James Comey, the former F.B.I. director, for posting a photograph of seashells arranged to read “86 47” prompted several emails asking whether those digits were now off limits.

Lawyers and urologists crowed about their plates: LTiG8R and PP DOC.

But my favorite was a sighting of a woman in a Mercedes. WAS HIS, her plates said.

I’d love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at the-docket@nytimes.com.

Justice Samuel Alito chose a favorite forum to confirm that he is not retiring anytime soon. “Obviously I’m here for another term,” he said in an interview published last week in the opinion section of The Wall Street Journal.

Speculation that he was considering stepping down spiked in February, after the announcement that he planned to publish a book on Oct. 6, the day after the court’s new term starts. A book tour, the thinking went, would conflict with his judicial duties.

Others noted a possible political calculation, arguing that Justice Alito might be inclined to step away while the White House and Senate were held by Republicans, ensuring that his successor would be aligned with his views.

Speculation rose again in April, when CNN reported that the justice had fallen ill during a dinner in his honor at the National Constitution Center in Philadelphia and been taken to a hospital. The court said that the visit was made out of an abundance of caution and that he returned home the same night.

But Fox News and CBS News, citing unnamed sources, reported later in April that the justice was not retiring, and that settled matters until the last day of the court’s term. That’s when NPR published and quickly retracted an article that said the justice was calling it quits. A court spokeswoman called the report inaccurate.

Justice Alito, 76, has given earlier interviews to The Journal’s opinion section.

He has also been a contributor to it. In 2023, he published a pre-emptive response to an article ProPublica was preparing about his failure to disclose a private jet flight paid for by a conservative billionaire who later had cases before the court.

In the opinion column, Justice Alito wrote that he was not obligated to disclose the trip.

In last week’s interview, Justice Alito said that he did not enjoy the rumors of his impending departure.

“It’s not pleasant, in the sense that it’s a reminder of mortality,” he said. “It’s like, what are those vultures doing up there? They are flying around.”

“But,” he added, “it goes with life tenure.”

Please send me your comments on Trump’s legal strategy, when justices should retire or anything else at the-docket@nytimes.com. See you next week. — Adam