Saturday, June 26, 2021

SCOTUS Is Not Donald Trump's Court

            In two checkered careers, Donald J. Trump has demanded complete loyalty from those around him – first, foremost, and always. Thus, it was no surprise that the former president voiced his disappointment with two of the justices he appointed to the Supreme Court after they cast pivotal votes this month [June 17] to spare Obamacare from being struck down.

The Court’s 7-2 decision in California v. Texas was not the first or even the most stinging of setbacks that Trump suffered from the Court over the past year after packing it with three doctrinaire conservatives: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett

“I am very disappointed,” the barred- from-Twitter former president said in an interview with the conservative outlet, Real America’s Voice on June 21, as reported  in The Washington Times. “I fought very hard for them, but I was very disappointed with a number of their rulings.”

Trump has been obsessed, Ahab-like, with trying to repeal Obamacare since before he ran for the presidency. The Trump administration Justice Department  supported Texas’s legal challenge to Obamacare despite the government’s presumptive responsibility to defend a federal law when challenged in court.

The Biden administration changed positions in February after the case had been argued. With new lawyers on the case, the government argued that even if the Court found the individual insurance mandate unconstitutional, the Court should remove that provision without invalidating the entire law as Texas and the Trump administration had urged.

The Court’s decision left the underlying issue unsettled, but instead dismissed Texas’s lawsuit outright on the ground that the red states had failed to prove the kind of concrete injury needed to establish legal standing to bring the suit.

Trump suffered two more personal setbacks earlier in the term when the justices simply refused to give full consideration to Trump’s improbable efforts to block the Manhattan district attorney from enforcing the subpoena for Trump’s tax returns and financial records or to overturn the presidential election.

The Court had ruled in the previous term that Trump, as president, could not claim immunity from a grand jury subpoena issued in a state criminal case. Trump’s two justices, Gorsuch and Kavanaugh, differed with the majority somewhat in proposing in a separate opinion a higher standard for the Manhattan district attorney to meet in order to enforce the subpoena.

Trump made his most audacious request to the Court by supporting the complaint filed by Texas and other Republican states, Texas v. Pennsylvania, that sought to overturn Joe Biden’s victories in four battleground states. The Court dismissed the complaint on December 11 with a single paragraph that found Texas had “no cognizable interest” in challenging election procedures used in other states.

Trump filed a motion to intervene in that case that was never acted on. But it has been learned since then that Trump in December instructed White House lawyers to draft a new complaint in the name of the United States, and send it to the Justice Department for filing. The acting attorney general Jeffrey Rosen let the draft complaint sit without filing it.

On rhe day of his inauguration as president, Joe Biden triumphantly declared that “democracy has prevailed.” Trump and his unhinged supporters continued to dispute the election results, going so far as to storm the U.S. Capitol on the very day that the Senate was to meet to confirm Biden’s election (Jan. 6).

With the Supreme Court’s 2020 term about to end, it can also be reported, triumphantly, that the rule of law has prevailed, despite Trump’s worst efforts. Even with three Trump justices on the Supreme Court, the former president can claim no significant victories over the past year. In another of the setbacks, the Court refused to reinstate Trump’s so-called “stay in Mexico” policy for asylum applicants after a lower federal court had ruled the policy illegal.

The Biden administration formally repealed the policy with the litigation still pending. Several red states sought to intervene in the case to try to salvage the policy, but the Supreme Court denied the motion.

Given Trump’s minimal understanding of separation of powers, Trump surely expected better rulings from the Court over the past year. But the Framers gave the Supreme Court a measure of independence for good reason and that independence has served the country well even if presidents must learn to live with disappointments.

Just ask Richard Nixon for one or Ronald Reagan for another. Nixon campaigned in 1968 on an anti-busing platform, but his chief justice, Warren E. Burger, led the Court just three years later – with Nixon in office, well before Watergate – in a unanimous decision that upheld the use of busing as a remedy in school desegregation cases.

Ronald Reagan campaigned on an anti-abortion platform and was out of office by the time when two of his justices, Sandra Day O’Connor and Anthony M. Kennedy, provided critical votes in 1992 for reaffirming the landmark abortion rights decision Roe v.Wade. [820]

Exiled in Mar-a-Lago, Trump can fret and fume about disloyal justices all he wants, but his words will not matter to the justices one whit. Before taking the bench, each of them solemnly promised to ‘administer justice without respect to persons and to do equal right to the poor and to the rich.”

The Trump-packed Court may yet do damage to the rule of law, but with one term almost completed the worst has yet to come to pass.

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