The morning after the Supreme Court reviewed his administration’s most
important case of the term, President Trump informed the justices he
might have another task for them.
“I DID NOTHING WRONG,” Trump tweeted Wednesday. “If the partisan Dems
ever tried to Impeach, I would first head to the U.S. Supreme Court.”
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.
Trump gestures toward Gorsuch, center, during his swearing-in ceremony at the White House in 2017. Kennedy, now retired, is at right. (Ricky Carioti/The Washington Post)
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 analysisfound
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.”
