//  11/12/18  //  Commentary

In a new Washington Post op-ed, I criticize DOJ's recent flood of petitions seeking "emergency" Supreme Court intervention in cases challenging Trump Administration policies. Here's the introduction:

The Justice Department has implemented a new strategy for defending President Trump’s most controversial policies: Declare an urgent threat to the executive branch, bypass ordinary judicial procedure and rush straight to the Supreme Court. Over the past few weeks, it has made this move in cases involving climate change, immigration, the 2020 Census and Trump’s ban on military service by transgender people. The department’s aggressive tactics rest on a rather overt calculation that the court’s right-leaning majority will nearly always side with the administration — and that five justices will repeatedly bend the rules to kill cases against Trump.    

 It seems unlikely that a majority of the Supreme Court is enthusiastic about this development. Chief Justice John G. Roberts Jr. is deeply committed to preserving confidence in the court as a branch of government that speaks “for the Constitution,” not “one party.” That concern also appears in statements by many of his colleagues. As Justice Elena Kagan has observed, “It’s an incredibly important thing for the court to guard — this reputation of being fair, of being impartial, of being neutral, and of not being some extension of the terribly polarized political process and environment that we live in.”

By treating the Supreme Court as a willing ally rather than a neutral arbiter, Trump’s lawyers are encouraging a dangerously cynical view of an institution whose public legitimacy is its very lifeblood. Worse, by filing a slew of irregular petitions that require immediate action, the department is forcing the court to navigate a political minefield.

Read more here

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The decision is justifiable as a bright-line rule, but the case was not quite the no-brainer that the justices imagined

Michael C. Dorf

Cornell Law School

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Cornell Law School