President Donald Trump says he regrets nominating Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court.
Asked in a Time interview whether he regretted those choices, Trump answered: “Yeah. Yeah. What can I do? I put them in. They voted against me too often.” He added that he had given them “the position of a lifetime.”
But “they voted against me” is the wrong way to think about what Supreme Court justices do.
A justice does not cast a vote for or against Trump. The fact that Trump appointed that justice should have no bearing on the legal analysis. The court decides cases involving statutes, constitutional provisions, executive power, precedent, and the arguments of litigants. Sometimes those decisions favor an administration. Sometimes they do not.
It is not personal.
Trump himself seemed to recognize the distinction as the interview continued. Asked whether he wanted loyalty from his Supreme Court justices, he answered: “No, I don’t want loyalty. I want good decisions.”
That is closer to the constitutional standard — assuming by “good decisions” he means decisions faithful to the Constitution and the law rather than decisions favorable to him. On that assumption, he has it exactly right.
A president may consider judicial philosophy when choosing a nominee. Originalism, textualism, precedent, federalism, and executive power matter. But selecting a justice because of how that person interprets the law is very different from expecting favorable outcomes once the justice reaches the bench.
Article 3 creates that distance. Federal judges hold office during “good Behaviour,” and their compensation cannot be reduced while they serve. Alexander Hamilton defended permanent judicial tenure in Federalist No. 78 as essential to an “independent spirit” in judges charged with enforcing a limited Constitution.
Only 14 years after the Constitution took effect, that principle faced a defining test.
Marbury v. Madison arose from the bitter transfer of power from John Adams to Thomas Jefferson. In Adams’s final days as president, William Marbury was appointed a justice of the peace. His commission had been signed and sealed but not delivered when Jefferson took office. Jefferson directed that the remaining commissions be withheld, and Marbury asked the Supreme Court to order Secretary of State James Madison to deliver his.
The Supreme Court of 1803 was not the commanding institution it is today. It was young and caught in intense partisan conflict over the federal judiciary. An order against Madison risked simply being ignored.
Chief Justice John Marshall found another path.
The court held that Marbury had a legal right to his commission. But it also held that Congress had attempted, through the Judiciary Act of 1789, to give the Supreme Court original jurisdiction beyond what Article 3 permitted. So the court refused to issue the writ Marbury sought — and in doing so established the precedent of judicial review.
Marshall supplied the famous formulation: “It is emphatically the province and duty of the judicial department to say what the law is.”
Notice what the court did. It did not ask what Adams wanted. It did not ask what Jefferson wanted. It did not even accept more power simply because Congress offered it.
It asked what the Constitution permitted.
That principle has frustrated presidents ever since.
During the Korean War, Harry Truman ordered the government to seize the nation’s steel mills because he believed a threatened strike endangered national defense. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court held 6-3 that he lacked the authority to do so.
In 1974, Richard Nixon claimed presidential privilege protected White House recordings from a criminal subpoena. In United States v. Nixon, the court rejected an absolute privilege and required compliance with the subpoena.
The point is not that the Supreme Court is always right. It is not. Its decisions can be criticized, sometimes fiercely.
The point is that the relevant question is never whether a justice voted “against” the president who appointed him.
Gratitude for an appointment, personal loyalty, partisan allegiance, or fear of disappointing a president should play no role in the result. A justice who asks, “What does the president who appointed me want?” has already asked the wrong question.
Trump’s own appointees have sometimes ruled against his administration. That is not necessarily evidence that something went wrong with the appointments.
It can be evidence that something went right with the Constitution.
Trump’s second formulation was therefore better than his first: He said he wanted “good decisions,” not loyalty.
If “good” means faithful to the law, that is exactly the distinction Article 3 was designed to preserve.
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Presidents nominate Supreme Court justices. The Senate confirms them.
Neither the president nor Congress owns their votes.
Arie Blitz, M.D., M.B.A., is a retired physician and independent writer in Weslaco, Texas, who writes on foreign policy, medical ethics, and public policy.