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‘The Battle for the Third Branch’

Scholars debate the future of the American judicial system under President Trump.

Photograph by Erika Craven ’20

While President Trump’s executive orders may only have a lifespan of years, changes he will bring to the American judicial system could affect generations.

Addressing a lecture room full of students and faculty at Boston College Law School on Sept. 26, Cato Institute’s Ilya Shapiro (at lectern above) joined professors Kent Greenfield and Ryan Williams, both of BC Law, to share their insights into the US Supreme Court under Chief Justice John G. Roberts’ leadership as well as predictions on the shifting judicial landscape.

“Too many people will now see the justices themselves in partisan terms. We Supreme Court pundits sometimes don’t like talking about liberals versus the conservatives on the court. It’s too simplistic,” Shapiro said. “But it’s not a surprise given that we now have contrasting methods of constitutional, statutory interpretation that map almost exactly onto partisan splits.”

He said regardless of how Supreme Court Justice Neil Gorsuch, who assumed office in April, rules this term or whom President Trump nominates in the future, the “battle for the third branch” will continue.

“An open question is, what happens when Trump realizes the sorts of judges that he’s been advised to appoint would rule against him on various matters? He doesn’t know originalism from origami but we can only hope that he continues listening to the same legal advisors,” Shapiro said. “I predict he will continue going to the list that he has put out, maybe adding a couple of similar conservative legal elites like Brett Kavanaugh from the DC Circuit or Paul Clement, the former solicitor general,” Shapiro said.

Greenfield said from the perspective of a court observer, he thinks the Roberts Court may be much less interesting to watch than previous courts he has seen in his lifetime. He said “the web of coalitions” that could be seen in past courts have become a few strands in the Roberts Court.

The talk, “The Roberts Court under a Donald Trump Presidency,” was hosted by the BC Law’s Federalist Society.