There is much speculation on whether President Trump will simply refuse to comply with judicial orders. There’s the famous line of Andrew Jackson, “The court has made their ruling, let them enforce it.” JD Vance recently tweeted that he does not believe Musk’s rogue DOGE agency should be subject to judicial review. The writer behind a lot of the philosophy of Trump and Vance, Curtis Yarvin, advocates that the president should simply ignore court orders and do what he wills. Many have lamented that if this were the case, that there is nothing the Supreme Court could do. That they would simply be powerless, and that the only hope would be that the military would step in.
But I can think of an option for such a scenario that I haven’t heard discussed anywhere. If a president openly defies a direct order by a Supreme Court, could the court then call upon the ancient common law tradition of a Writ of Outlawry?
https://en.wikipedia.org/wiki/Outlaw
In common parlance, we use the term “outlaw” to refer to someone that is simply a criminal or on the run from the law. But traditionally it was something a lot more specific. Back in ancient days where it was much more difficult to track down fugitives, courts would declare those who refused to subject themselves to the court’s process as “outlaws.” They literally were declared as outside the protection from the law. It was then legal for literally anyone to do whatever they wanted to that person, and they would face no legal penalties whatsoever. An outlaw could literally be killed, and their killer would face no penalties. The philosophy was that if someone was going to refuse to subject themselves to the law, then they did not deserve the protection of the law.
Could this be the answer to Jackson’s quip? Ultimately the Supreme Court determines the working of the justice system. If a court rules that no lower court can hold someone accountable for crimes against someone, then anyone could harm that person with impunity.
Could this be a final and ultimate option for the Supreme Court to hold a rogue president accountable? Give the president plenty of chances and fair warning. But if the president simply refuses to abide by the court’s rulings, then the court could activate this ancient tradition and declare them an outlaw. It would then be completely legal for anyone to do whatever they wanted to the president, including the Secret Service agents that surround him at all times. Could the Supreme Court rein in a lawless president by simply declaring that president outside of the law’s protection?
There are ways to rein in the court, even with life terms. We can’t get rid of the life terms without an amendment. But we could pack the court. Add 10 justices today, and it doesn’t really matter what the other 9 have to say about it.
More realistically, I think we shouldn’t fill empty seats on the court. I think that when a justice dies, the court should just move on without them.
A new justice should be appointed in the 11th and 35th month of each presidential term, regardless of the court’s current size. That puts the the nomination as far away from an election as possible, while guaranteeing each president has some influence on the court. The average term is about 26 years; the longest term has been 36. I would expect the court size to average about 13 members, and probably not exceed 18. A single president could only appoint 4 members in two terms.
I would also establish a line of succession in the circuit courts, to automatically reconstitute a court that falls below 5 members, or to hear cases the SCOTUS is conflicted out of. Since any circuit court judge could find themselves on the supreme court, the senate’s confirmation to the circuit court is also a confirmation to SCOTUS. The president has a small pool of qualified nominees that are pre-confirmed and thus can’t be blocked.