The president’s lawyers have also made factual representations that courts have all but called misleading or false. Chief Justice John G. Roberts Jr., for instance, derided claims from the administration last year about a citizenship question it attempted to add to the census. In his majority opinion, Roberts invoked his former boss, Judge Henry Friendly, who said that the Supreme Court is “not required to exhibit a naivete from which ordinary citizens are free.”
Trump has three appointees on the Supreme Court, but the flimsiness of Trump’s legal claims has never been more evident. In the latest census case before the high court, Trump’s team argued for excluding noncitizens from the decennial count, despite the plain language of the Constitution. “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed,” reads Section 2 of the 14th Amendment. The Post reports:
The states and organizations challenging Trump’s plan said during Monday’s arguments that while some delay might be warranted, the bottom line is that the president’s intentions would violate history, the text of the Constitution and Congress’s command that all persons in the country be counted for apportionment purposes. . . .Conservative Justices Brett M. Kavanaugh and Amy Coney Barrett, both appointed to the court by Trump, also told [acting U.S. solicitor general Jeffrey B.] Wall that history was working against him as Trump claimed a power no president has ever tried to exercise before.
Kavanaugh and Barrett have not gone “soft”; they simply cannot with a straight face defend Trump’s position. There are limits even for right-wing ideological justices.
This sort of skepticism might seem vaguely familiar. In the ACA case heard just days after the election, Trump and red-state governors argued that because Congress had zeroed out the law’s individual mandate penalty (the “tax,” as Roberts described it), the entire statute should have been invalidated. The Post reported, “Two key members of the court — Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh — said plainly during two hours of teleconferenced arguments that Congress’s decision in 2017 to zero-out the penalty for not buying health insurance did not indicate a desire to kill the entire law.” Oh.
Trump also expected the Supreme Court to deliver the election to him but, so far, the justices have declined to take the only case within shouting distance of the high court. They have also shown no interest in taking up an appeal from a U.S. Court of Appeals for the 3rd Circuit ruling slamming Trump’s unconscionable attempt to undo the election. (Trump’s lawsuit “seeks breathtaking relief: barring the Commonwealth from certifying its results or else declaring the election results defective and ordering the Pennsylvania General Assembly, not the voters, to choose Pennsylvania’s presidential electors,” the court of appeals held.)
Trump’s judicial appointees are not squishy progressives or even moderates. They will, no doubt, part company with Democratic-appointed justices (as well as the chief justice) on abortion, affirmative action and gun regulation. However, they are still judges whose personal reputations, education and training do not permit them to rubber-stamp Trump’s crackpot legal schemes. These cases may not offer solace to those who fear the high court will run roughshod over precedent in furtherance of conservative ends; they should, however, remind “rule of law” conservatives that Trump and his ilk have little respect for the Constitution, however it is interpreted.
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