//  6/28/18  //  Commentary

Throughout his presidency, Donald Trump has thumbed his nose at the courts and made a mockery of the Constitution.  Rather than checking Trump, the Supreme Court under the leadership of Chief Justice John Roberts is giving in to Trump, thereby inviting him to keep flouting the rule of law.  No wonder Trump continues to act as if no one can tell him what to do.

Now, with the retirement of Justice Anthony Kennedy, this will get even worse.  Trump’s first nominee, Justice Neil Gorsuch quickly joined Justice Clarence Thomas at the far right end of the Court.  Everyone expects that Trump will once again seek to push through the Senate another staunchly conservative jurist.   

Last year, when President Trump lambasted “ridiculous rulings” against his Muslim travel ban, he tweeted “see you in the Supreme Court.”  Now, in a 5-4 opinion written by Chief Justice Roberts, the Supreme Court has given him what he wanted.  Burying their collective heads in the sand, Roberts and his conservative colleagues refused to follow the clear import of the Constitution’s text, history, and values, and they ignored the clear anti-Muslim animus that gave rise to the ban.  In so doing, they empowered President Trump to engage in the rankest form of religious bigotry.  As Justice Sonia Sotomayor wrote in what will go down as one of the finest dissents of her career, “the First Amendment stands as a bulwark against official religious prejudice and embodies our Nation’s deep commitment to religious neutrality and tolerance.”  She concluded that “[o]ur Constitution demands, and our country deserves a Judiciary willing to hold the coordinate branches to account when they defy our most scared legal commitments.”  The conservative majority gave Trump the dangerous power to write his prejudices into law.

Not only that.  Chief Justice Roberts gave Trump the ability to rewrite immigration law, empowering him to make an end run around immigration laws enacted by Congress that require equal treatment of immigrants, no matter where they are from.  In 1965, Congress enacted a flat ban on national origin discrimination in the issuance of immigrant visas.  But Roberts allowed Trump to impose the very kind of discrimination Congress prohibited, effectively giving the President a lawmaking power the Constitution denies him.  Our Constitution’s Framers, who revolted in opposition to the tyrannical rule of a king, refused to give the President the kind of concentrated power Roberts and his colleagues have now given to Trump.  Worse still, the Court’s conservative wing—the members of which waxed eloquent about the limits of presidential authority when Obama was President—did not even consider the damage they are doing to our system of checks and balances.  

The Muslim travel ban ruling, as bad as it is, hardly stands alone.  Back in February, in Jennings v. Rodriguez—another setback for immigrants’ rights—the same conservative majority refused to limit the President’s power to detain immigrants for prolonged periods of time without the possibility of bail, over a scathing dissent written by Justice Stephen Breyer that insisted that “[f]reedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.”  The government’s position inJennings predates the Trump Administration, but the ruling establishes a precedent that President Trump will surely double down on every chance he gets to dramatically expand immigrant detention.  Now, as President Trump seek to impose prolonged indefinite detention on immigrant parents and their children—potentially for years—during criminal or immigration proceedings for improper entry or removal, Jennings looms especially large.

These rulings cutting back on the rights of immigrants and empowering President Trump to wield sweeping powers at the border are only one piece of the story.  A huge theme of the Supreme Court’s Term has been the Trump Administration’s repeated ideological flip-flops.  In case after case, the Trump Administration abandoned previously held positions in an effort to move the law sharply to the right, and won.  Indeed, many of the biggest conservative 5-4 victories of the Term were cases where the Trump Administration flipped positions. 

The Trump Administration flip-flopped in a number of biggest conservative wins, such as Janus v. AFSCME, which jettisoned four decades of precedent in order to overturn state agency fee laws requiring government employees to pay the fair share of costs of collective bargaining, Abbott v. Perez, which upheld Texas’s racially discriminatory redrawing of its district lines, Husted v. A. Philiip Randolph Institute, which gave states the green light to purge voters for non-voting, and Epic Systems Corp. v. Lewis, which closed the courthouse doors of employees banding together to vindicate their federal rights.   

The Supreme Court did not always go as far as the Trump Administration’s wanted.  In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court refused to embrace the view that baking a cake is a form of speech and that commercial sellers have a First Amendment license to discriminate against same-sex couples planning a wedding celebration.  But the Justices still gave the Trump administration a victory, concluding that the commercial bakery had been denied the neutral and respectful consideration the Constitution’s Free Exercise Clause required.  In this regard, Masterpiece was an outlier.  In many of the biggest cases of the Term, the Supreme Court’s conservative majority pushed the law to the right just as the Trump Administration urged.  Trump’s appointee to the Court, Justice Gorsuch—who repeatedly took some of the most extreme conservative positions on the Court—cast a critical vote in many of these cases.     

Chief Justice John Roberts and his conservative colleagues were largely silent in the face of these flip-flops.  This marked a decisive shift.  During Obama’s presidency, Chief Justice Roberts repeatedly grilled Solicitor General Donald Verrilli about the positions the government took, remarking that “the position that the United States is advancing today is different from the position that the United States previously advanced.”  Roberts called the Obama Administration’s views “disingenuous” and suggested they were less deserving of deference.  But this Term, the Supreme Court’s conservative justices were silent in the face of these multiple flip-flops.  In case after case, they rewarded the Trump’s Administration efforts to move the law sharply to the right.  This spate of 5-4 decisions will only encourage more of the same in years to come.

Not surprisingly, both before the Supreme Court and in the lower courts, we’ve seen the Trump Justice Department makes a series of outlandish legal claims, seeing just how far they can go before the courts will intervene.  In the travel ban litigation, Solicitor General Noel Francisco claimed that President Trump had stated that he had no intention of imposing a travel ban.  In the lower courts, the Trump Administration has resorted to what can only be described as lies to justify its legal positions.  The Administration has claimed that it was required by law to forcibly separate immigrant parents from their children, and that it added a citizenship question to the 2020 Census to better enforce the Voting Rights Act.  The Administration has made the far-fetched claim that the courts would be effectuating Congress’s intent by invalidating the Affordable Care Act in its entirety, even though Congress left in place key parts of the law, such as the individual mandate, when it recently made other changes to the law.  The Supreme Court’s opinions of this past Term, which have repeatedly moved the law to the right in the ways Trump asked for, encourage these brazen claims.

As this Term at the Supreme Court ends, two things are clear.  We have a President who thumbs his nose at the Constitution and the rule of law, and a Supreme Court that is willing to let him get away with it.


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