Trump's First Administration Had the Worst Supreme Court Win Rate Since FDR

Details

A peer-reviewed study published in Presidential Studies Quarterly in June 2023 by Lee Epstein and Rebecca L. Brown, then professors at the University of Southern California Gould School of Law, found that Trump's first administration had the worst Supreme Court win rate of any presidency since at least Franklin D. Roosevelt. The finding received wide attention in early January 2024 as several major Trump cases approached the Court.

The Study

Epstein and Brown analyzed orally argued cases implicating presidential power from 1937 through 2021 — cases in which a party was the United States, an executive department or department head, an independent agency, or the president.

Key findings:

• Trump's overall win rate of 43.5% was the lowest in the dataset, far below the historical average of 65.2%
• The Roberts Court was the most "anti-president" court since FDR's era
• In "high-stakes" cases — those appearing in constitutional law textbooks or making the front page of the New York Times — the presidential win rate was just 35%, also the lowest since 1937
• The presidential win rate before justices appointed by that president was 58% in high-stakes cases, compared to 36% before justices not appointed by the president

For comparison, Barack Obama had the next-worst win rate at 52.4%, followed by Joe Biden at 56.5% through the 2021 term. A separate earlier study by Epstein and Eric Posner of the University of Chicago suggested Trump's record may have been the worst since the Zachary Taylor administration in the 1840s, based on preliminary analysis of earlier data.

Epstein and Brown told the New York Times they could not say whether Trump's poor performance reflected "the court's view of him and his administration or the justices' increasing willingness to check executive authority."

Notable First-Term Losses

The study's findings were borne out by several high-profile cases in which Trump's own appointees voted against him:

• Trump v. Vance (2020): Trump appointees Neil Gorsuch and Brett Kavanaugh joined a 7-2 majority rejecting Trump's claim of absolute immunity from a state grand jury subpoena for his pre-presidential financial records. Chief Justice Roberts wrote the majority opinion, declaring that "since the founding of the Republic, every man has included the President of the United States."
• Trump v. Mazars (2020): In a companion case decided the same day, the Court rejected Trump's arguments against a congressional subpoena for his financial records, again 7-2.
• Department of Homeland Security v. Regents of the University of California (2020): The Court ruled 5-4 that the Trump administration's rescission of DACA was "arbitrary and capricious," blocking the termination of protections for roughly 700,000 immigrants.
• Department of Commerce v. New York (2019): The Court blocked the addition of a citizenship question to the 2020 Census, ruling 5-4 that the stated rationale was "contrived."

Context: The Roberts Court and Executive Power

The study placed Trump's record in a broader context. Epstein and Brown found that the Roberts Court has been increasingly assertive in checking presidential power across administrations — not just Trump's. They wrote that "there are increasingly frequent indications that the Court is establishing a position of judicial supremacy over the president and Congress."

Barbara Perry, a presidential scholar at the University of Virginia's Miller Center, noted the historical pattern of justices ruling against the presidents who appointed them, citing examples from Nixon, Truman, and Theodore Roosevelt.

The FDR Comparison

The FDR comparison is significant because Roosevelt's conflicts with the Court ultimately triggered a constitutional crisis. During his first term in the Great Depression, the Supreme Court struck down more than a dozen New Deal measures. Roosevelt responded in 1937 with a plan to expand the Court — the infamous "court-packing plan" — which was defeated in Congress but may have pressured the Court into accepting New Deal legislation going forward, a shift known as "the switch in time that saved nine."

Trump's first-term losses did not produce a comparable confrontation, though Trump frequently attacked the Court, tweeting after the financial records decision that "Courts in the past have given 'broad deference'. BUT NOT ME!"