Portside

While speaking at a campaign rally in Pennsylvania last week, Donald Trump meandered his way into a riff on the issue that may well have won him the 2016 election: control of the U.S. Supreme Court, to which he appointed three justices during his four years in office. Vice President Kamala Harris, Trump warned the audience, wants to expand the court to up to 25 justices in order to “rig the system” for the “party of Communists.” He lauded the current court, whose four-year run of reactionary jurisprudence has earned the institution some of its lowest-ever approval ratings, as “very brave,” and expressed dismay that the justices “take a lot of hits” for their displays of courage and/or unbridled revanchism.

Along the way, Trump suggested an innovative path forward for restoring the court’s tarnished reputation: Why not throw its critics in prison indefinitely? “It should be illegal, what happens—you have these guys playing the ref, like the great Bobby Knight,” Trump said, invoking the longtime Indiana University men’s basketball coach who was as famous for hurling chairs during arguments with officials as he was for assaulting students he deemed insufficiently deferential to his authority. “These people should be put in jail, the way they talk about our judges and our justices, trying to get them to sway their vote.” (In light of how often Trump himself has criticized the Supreme Court for being insufficiently deferential to his authority, I imagine that if elected president, he would want to fine-tune this standard before allowing it to take effect.)

There is, as they say, a lot going on here—even setting aside a major-party presidential candidate pondering a First Amendment exemption for speech that hurts Brett Kavanaugh’s feelings. For one thing, like most Democratic politicians, Harris has not come out in favor of Supreme Court expansion. Although she said she was “open to” the idea of adding justices during the 2020 primary, she has not gone further since. Her endorsement of expansion as the Democratic nominee exists only in Donald Trump’s feverish imagination, and now, presumably, in the heads of Trump devotees—for whom there exists a strong correlation between how frightening the things he says about Democrats are and how true they must therefore be.

For another thing, the most commonly discussed Supreme Court expansion proposal would add four justices to the court; a few days after Trump’s Pennsylvania rally, Oregon Senator Ron Wyden introduced a bill that would add six justices over a 12-year period. None of this explains how Trump arrived at a grand total of 25 justices, other than a vague understanding that any number he throws out should be (1) odd and (2) greater than nine. He’d floated something similar at a North Carolina event several days earlier—“They didn’t like the number 13, so instead of going to 15, they went to 25,” he said—but not in a way that revealed any useful clues about its origins. As ever, trying to trace how the garbled bits of information that Trump absorbs evolve into the words he says in public is like trying to play a game of telephone with a hamster, and it is best not to spend too much time or energy doing it.

In any event, the integers rattling around in Trump’s head are far less important than his suggestion for dealing with the court’s critics. (As The Washington Post’s Aaron Blake notes, Trump has previously suggested imposing “very serious fines” on those who’d dare speak their discouraging words aloud; perhaps he decided it would be easier to remember one proposed sentence instead of two.) Although Trump has long called for the imprisonment of his political opponents, to date, he has done so mostly in response to circumstances that, if they had any basis in reality and were not deranged conspiracy theories, might be expected to entail legal consequences: local government officials for ostensibly robbing him of the 2020 election, or Mark Zuckerberg for possibly meddling in the 2024 election, or Liz Cheney for purportedly destroying evidence that would exonerate Trump for his role in January 6, and so on.

Trump’s more recent suggestion—pushing for the imprisonment of people who exercise their right to criticize the government—is several steps further, a somehow-even-more explicit embrace of the authoritarian-curious inclinations that fuel his political movement. He has never been interested in governing, in any meaningful sense: His 2016 run is best understood as a bid to command the respect of people who treated him as an unserious carnival barker, and his reelection campaign in 2020 was motivated less by a desire to keep being president than by his overwhelming desire not to be humiliated in public.

That said, his particular obsession about the merits of locking up more critics reveals a simpler, scarier goal for a second and final term: exacting revenge on as many enemies as he can before the clock runs out. It does not matter what they have done, or how unambiguously the Constitution protects their right to do it; for Trump, winning the White House confers a de facto license to punish whomever and however he sees fit.

Monday is not the first time Trump has brought up the legacy of Knight, who endorsed Trump in 2016 and passed away last year, while defending judges for doing things Trump likes. “Nobody did it better than the late, great Bobby Knight,” Trump explained earlier this month, regarding calls for the removal of Judge Aileen Cannon, the alarmingly hackish Trump appointee who dismissed his classified documents prosecution in Florida. “He would scream at those refs and everything, and they’d say, ‘Bobby, you’re not going to get the decision overturned,’” Trump continued, before recounting Knight’s response: “‘Yep, but the next one I will.’ And he was right.”

This more detailed version of Trump’s “playing the refs” analogy is, however unintentionally, a pretty apt description of the role that criticism of the court should play in a semi-functioning democracy. Voters are, by and large, pretty alarmed by the court’s lurch to the right, and by its contempt for the very idea that justices should be subject to modest ethics rules. But people who criticize the court are not expecting to shame the justices into hastily overruling their last wildly out-of-touch decision, or reimbursing a right-wing billionaire for the cost of a recent tropical vacation.

People who criticize the court are trying to ensure that next time the justices have to choose between furthering the conservative policy agenda and taking seriously the rights of the millions of people whose lives are subject to their decisions, they will feel the tiniest bit of pressure to make a different call. To extend the analogy a little further, if the outcry is loud enough—and if the current officials keep blowing calls in spectacular fashion—perhaps the powers that be will hire a couple of new officials who are less inclined to make up the rules as they go along.

By virtue of its six-justice conservative supermajority, the court is the Republican Party’s most important source of political power, and unless Democrats really do embrace court expansion to the extent that Trump imagines, it will likely remain so for a generation to come. To the extent that criticizing the things the court is doing in the meantime constitutes “playing the refs,” it is not illegitimate or unseemly. It is simply a description of how trying to influence powerful politicians has always worked.

[Jay Willis is a writer and lawyer who covers courts, judges, and politics. He is the editor-in-chief at Balls & Strikes, and his work has appeared in The New York Times, The Atlantic, Slate, and Defector, among others. @jaywillis ]