Constitutional experts immediately derided Trump’s faulty legal analysis. But the more striking message, the day after the court considered the administration’s plan to put a citizenship question on the 2020 Census, seemed to be Trump’s consistent theme that he views the nation’s highest court as an ally, and safeguard against lower court defeats and congressional opponents.
His administration’s lawyers have tried to leapfrog the legal process to seek the high court’s quick review of adverse rulings and nationwide injunctions by lower courts, which they say handicap Trump’s initiatives in numbers that can’t be defended. They are ready, too, to go to court as the president resists demands from congressional Democrats investigating his conduct, business dealings and personal finances
Liberal critics of the president say his rhetoric seeds doubts about the Supreme Court’s independence, complicates the role of Chief Justice John G. Roberts Jr. and could taint the victories Trump achieves there.
“President Trump views the Roberts Court as his potential, perhaps literal, ‘get out of jail free’ card,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. She added: “The question is, what does Chief Justice Roberts do?”
There is a vast difference between the 17th chief justice’s aspirational message of judicial independence and the 45th president’s realpolitik view that some judges (those who are Republican-appointed) are his friends while others (those installed by Democrats
) are his foes. And Trump has explained the legal process in a way not found in textbooks on American democracy.
“We will then be sued . . . and we’ll possibly get a bad ruling, and then we’ll get another bad ruling and then we’ll end up in the Supreme Court, and hopefully we’ll get a fair shake, and we’ll win at the Supreme Court,” he said in
February, during a Rose Garden event at which he declared a national emergency.
Keith E. Whittington, a Princeton University political science professor, who teaches a course called “Constitutional Difficulties in the Age of Trump,” said he thinks the president misjudges the court as an ally but adds, “It’s one of the odd features of the Trump presidency that he says things out loud and in public that other people might say in private.”
Trump’s confidence in the high court seems borne of the fact that he’s nominated two of the five conservative justices that make up the court’s majority — Neil M. Gorsuch and Brett M. Kavanaugh. The president said this week he was pleased with Kavanaugh’s questioning in the census case, an adviser said.
The president and the first lady are friendly with Justice Clarence Thomas and his wife, Ginni Thomas, having shared dinner at the White House.
But Trump declared Roberts a “disaster” during the presidential campaign because of the chief justice’s pivotal vote upholding the Affordable Care Act. The two have a cordial if limited relationship now, and Roberts wrote the court’s opinion last term upholding Trump’s ban on travelers from some majority Muslim countries.
That decision discounted Trump’s statements in interviews and tweets, and focused on the president’s power to control entry into the country.
“The issue before us is not whether to denounce the statements,” Roberts wrote. “It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
Last week, the conservative majority seemed inclined to defer to the administration’s decision to add a citizenship question to the 2020 Census, despite predictions from census officials that it could result in an undercount of millions of people, and a finding by three federal judges that Commerce Secretary Wilbur Ross obscured the truth about how the decision came about.
“With this court, they seem very inclined to put on blinders when it comes to really parsing the president’s words and understanding the motives driving the policy actions he’s undertaken during his presidency,” said Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law.
That has not been the case in lower courts. A Washington Post analysis found an extraordinary string of legal defeats for the administration that has stymied large parts of the president’s agenda on the environment, immigration and other matters.
Judges have rebuked Trump officials for failing to follow the most basic rules of governance for shifting policy, including providing legitimate explanations supported by facts and, where required, public input.
That has stoked Trump’s ire, and led to some of his outbursts questioning whether one judge could be fair because of his ethnicity and deriding an “Obama judge” who ruled against the Trump administration.
Roberts rebuked the president for the latter, releasing a statement in November saying that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Trump was hardly chastened. “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country,” Trump shot back on Twitter.
Trump has referred to Supreme Court justices as Democrats and Republicans, current and former aides say, and has bragged that he thinks he may get one or two more chances to remake the court
During Gorsuch’s nomination process, Trump was angry that the Colorado judge had told a Democratic senator that it was wrong for the president to criticize federal judges or refer to them as partisan. Trump worried that Gorsuch would not be “loyal,” The Post reported, and mused about withdrawing the nomination. The president has since referred to the nominations of Gorsuch and Kavanaugh as triumphs.
Trump is right that challengers to his policies have sought out sympathetic judges largely on the East and West coasts, although such a tactic is not unusual. Those judges have issued a number of nationwide injunctions against Trump’s initiatives, which is a relatively recent phenomenon.
William Jay, a Washington lawyer who frequently argues before the Supreme Court, was at the Constitutional Accountability Center’s event last Thursday reviewing the Supreme Court term, and brought a more conservative viewpoint.
He noted that those challenging the president’s policies are careful to criticize his motives, not his power.
“A lot of the states and advocacy groups that are bringing these challenges very much want the next president to have all the power the statutes confer, but they don’t want President Trump to be able to rely on that broad grant of authority.”
Whittington, the Princeton professor, said that presidents have long bemoaned “activist” judges or those who “act like legislators.” But Whittington, who describes himself as a libertarian and is a frequent speaker at Federalist Society events, said Trump’s language often goes beyond that.
“Some of the rhetoric Trump has used — talking about the courts directly as allies, talking about Republican and Democratic judges, talking about judges of Mexican ancestry and whether they can be fair to him — on that point, it’s not just that the rhetoric is unusual and unconventional,” Whittington said.
“The substantive message being sent is really very different from what other presidents have said about courts, and I think is very corrosive.”
Trump’s tweet about impeachment may indicate his preoccupation with the Democratic House’s ongoing inquiry.
The Constitution leaves impeachment to the House, with a trial to be conducted by the Senate. In a 1993 opinion, the Supreme Court was unanimous in rejecting a federal judge’s plea that justices review his impeachment proceedings. The court’s opinion specifically mentioned the difficulty of judicial review in the case of a presidential impeachment.
And Kavanaugh wrote in a 2009 law review article that impeachment, rather than prosecution, is the remedy when a president “does something dastardly.”
“No single prosecutor, judge or jury should be able to accomplish what the Constitution assigns to the Congress,” Kavanaugh wrote.
But other issues dear to the president — declaring a national emergency over migration at the border, his plan to restrict transgender men and women from serving in the military — could end up at the Supreme Court.
Trump has told White House aides that he would take the battle over his tax returns to the high court, where he believes he would win.
And two legal advisers to the president said the White House is going to fight most subpoenas issued by House investigators and they think they will have a receptive audience at the U.S. Court of Appeals for the D.C. Circuit and at the Supreme Court.
“More than anything, what’s the choice?” one adviser said. “He’s not going to just comply with Congress with their overreaching demands.”