If the U.S. courts can’t defend the rule of law, who can?

With a Republican Congress apparently unwilling to check Trump’s power, many Americans fear a looming constitutional crisis and are looking to the federal courts to ride to the rescue. But political scientist and Harvard Kennedy School Professor Maya Sen, who studies the federal judiciary, says the cavalry probably isn’t coming. The Trump administration has seemingly defied judicial orders on deportations, withholding congressionally appropriated funds for federal programs, eliminating birthright citizenship, and other issues. Meanwhile, surrogates like Vice President J.D. Vance and billionaire Elon Musk have stated in social media posts that Trump is simply not bound by judicial decisions and can do pretty much whatever he pleases. Trump has even joined with some of his political supporters calling for impeachment of judges who rule against him, prompting Supreme Court Chief Justice John Roberts to respond and call Trump’s statement “inappropriate.” With the legislative branch of government sitting on the sidelines and without a credible threat of impeachment, Sen says the judiciary is no match for an authoritarian executive in terms of speed of action and political muscle—and was never intended to be. And even if it had been, structural issues with the way decisions are made and how judges are chosen give conservatives an advantage, and have resulted in a Supreme Court that is largely out of step with public opinion. Sen talks with PolicyCast host Ralph Ranalli about what can be done to restore both the separation of powers and the balance of power in the U.S. government during this unprecedented pivotal moment in American history.

Maya Sen’s Policy Recommendations:

• Pass a constitutional amendment to end lifetime appointments and limit terms for federal judges, including Supreme Court justices, to 18 years to help depoliticize the process of judicial selection.
• Exert public and electoral pressure on Congress and political leaders to defend the legislative branch’s constitutional prerogatives and to stop ceding power to the executive branch.

Episode Notes:

Maya Sen is a political scientist whose interests include law, political economy, race and ethnic politics, and statistical methods. She has testified before Congress and presidential commissions on issues pertaining to the federal courts, and her research has been published in numerous academic journals including the Proceedings of the National Academy of Sciences, the American Political Science Review, the American Journal of Political Science, and The Journal of Politics. . Her writings also include the books “The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary,” and “Deep Roots: How Slavery Still Shapes Southern Politics,” which won the 2019 William H. Riker Book Award for best book published in political economy. She is currently working on a book on the relationship between the Supreme Court and public opinion. Professor Sen earned a PhD from the Department of Government at Harvard University in 2012 and holds an AM in Statistics and an AB in Economics, both from Harvard University, as well as a JD from Stanford Law School.

Ralph Ranalli of the HKS Office of Communications and Public Affairs is the host, producer, and editor of HKS PolicyCast. A former journalist, public television producer, and entrepreneur, he holds an BA in political science from UCLA and a master’s in journalism from Columbia University.

Scheduling and logistical support for PolicyCast is provided by Lilian Wainaina. Design and graphics support is provided by Laura King and the OCPA Design Team. Web design and social media promotion support is provided by Catherine Santrock and Natalie Montaner of the OCPA Digital Team. Editorial support is provided by Nora Delaney and Robert O’Neill of the OCPA Editorial Team.