Opinion | The Supreme Court Is Looking Beyond the Trump Era

We’re living through an era when it seems to a lot of observers that Congress is increasingly unwilling to or at least unexcited by the exercise of its own powers. Is that something that enters into judicial considerations when you’re thinking about the cases that you take, the scope of the rulings that you decide to make? Does the existing balance of power between the branches matter at all to jurisprudence? So there’s a lot in that question. I think maybe I’ll hit two points in response: I think at a broad level it’s important to say — and I think this is actually a disconnect between what observers of the court expect to see and what the court can actually do. I think the press and the public live in a particular moment. You’re either living in the Watergate years, or you’re living right now. And so you’re seeing everything through that lens. The court has to take a longer view. And so the content of doctrine cannot turn on just the precise political moment, because the doctrine we’re drawing on, the cases that have come before — and I’m not saying, this just isn’t anything to do with just being an originalist. The court decides cases, not just like in a “one ticket, this train only.” What we decide today is going to apply tomorrow. One point that I’ve made, I talk in the book a couple of times about decisions that John Marshall made, including in the trial of Aaron Burr. Those cases got cited within the last couple of years on more than one occasion. So what we decide now would be cited, seven, eight or nine presidents from now. We have to be very careful that the content of the doctrine isn’t fashioned just for the moment, because one reason that the Constitution has been able to survive is that it isn’t contingent only on a particular period. So that’s kind of at a broad level. But I do think there is a lot of discretion. You asked: Does it affect the scope of decisions? Yes, I think it can. I think those kinds of considerations — the court does have a little bit more room in that regard, in deciding the breadth of a decision. And whether to leave certain questions temporarily unanswered, maybe? That is not always possible. But yes, where it is possible, that is the kind of a thing where the court can decide, where it can, there is sometimes a range of discretion in deciding how broadly or narrowly to write a rule — or a rule should be.