Courting Trouble

The road to re-election for Trump was never going to be smooth or easy. With the top court giving judgments which are critical of the president, it is a warning to him about how democracy works.

By Kenneth Tiven

AS the US presidential elections near, multiple events in the last 12 months have thrown substantial roadblocks to victory for US president Donald Trump. This includes the US Supreme Court giving adverse judgments which caused Trump to ask his Twitter followers: “Do you get the impression that the Supreme Court doesn’t like me?”

Some of the recent developments which affected, and in some cases, energised Americans from all political points of view are: The Covid-19 pandemic killing more than 1,25,000 Americans with no end in sight; the economic shutdown which made 40 million unemployed; nationwide protests after a viral video captured the murder of an African-American man by a Minneapolis police officer; excessive force and teargas against peaceful protesters across the White House which amplified protests against racism and redefined Black Lives Matter as a diverse national coalition; current polling even by organisations favourable to Trump suggest he is 12% points behind presumed Democratic nominee Joseph Biden; presidential power unable to convince courts to use prior restraint to stop publication of critical books by departed staff; a half-empty 20,000-seat stadium for his first campaign rally in months in Tulsa, Oklahoma, a seriously pro-Trump state, and a growing deficit in his claims of invincibility at the polls.

Trump went into a black mood when the Supreme Court, dominated by conservatives, provided two adverse rulings for the Republican Party. In both cases, Chief Justice John Roberts was a crucial affirmative vote. When nominated by President George Bush in 2005, Justice Roberts said: “Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.”

Like a sports replay, here are the critical cases involving Justice Roberts that have frustrated the president. It is not wise to think the Court has turned into a reliable countervailing force to an erratic and autocratic leader, but it has sent him a warning about how democracy works in the American constitutional system.

  • Immigration, DACA

Petitioner: Department of Homeland Security, et al.

Respondent: Regents of the University of California, et al.

In 2012, there was a signature effort by President Barack Obama to have the Department of Homeland Security (DHS) create the Deferred Action for Childhood Arrivals (DACA). This would postpone the deportation of undocumented immigrants who had been brought to the US as children. This assigned them work permits to obtain social security numbers, pay taxes and become part of “mainstream” US society.

Trump had made it clear while campaigning that he disliked everything that Obama had done, especially related to immigration. He ordered the phase-out of DACA in 2017 based on a claim that it was an “unconstitutional exercise of authority by the Executive Branch”.

Congressional Democrats vowed to help DACA recipients, dubbed The Dreamers and estimated to be about 700,00, while urging Trump not to end it. The University of California fought the government in court on behalf of students. Chief Justice Roberts was the deciding vote in a 5-4 decision which said the DHS decision was wrong and the result of flawed administrative actions under existing laws. Nothing stops the Trump Administration from trying again, but there may not be enough time to complete anything before the November election.

Two years ago, this chief justice wrote the opinion upholding President Trump’s Muslim travel ban and five years before he wrote the opinion dismantling the Voting Rights Act. The vote in both was 5 to 4. However, this case was all about procedure. The chief justice said the government’s effort was so inadequate as to make the decision “arbitrary and capricious”, framing it as a conventional case about administrative procedure. Initially, Trump reacted as expected, criticising Justice Roberts and the Court as “horrible and politically charged”, but later toned it down, calling the decision a “no-big-deal request for enhanced papers”. His goal remains dismantling the DACA programme.

Conservative colleagues in the Court and in the political world described Trump’s opinion as niggling at best and, at worst, disingenuous. Justice Clarence Thomas wrote that this was “an effort to avoid a politically controversial but legally correct decision”. He was joined by two other conservative Justices.

  • Equality Issues

Petitioner: Altitude Express, Inc., et al.

Respondent: Melissa Zarda, executor of the estate of Donald Zarda, et al.

The Court’s decision consolidated three cases: Gerald Bostock, who was fired from a county job in Georgia after he joined a gay softball team; Donald Zarda, a skydiving instructor who was fired after disclosing he was gay to a client and Aimée Stephens who was fired from a Michigan funeral home two weeks after telling her boss she intended to live full-time as a woman.

It seemed odd that Chief Justice Roberts who silently joined Justice Neil Gorsuch’s 6-3 majority opinion bringing LGBT people within the protection of the federal anti-discrimination law was the same chief justice who wrote a snarky dissenting opinion five years ago when the Court upheld the constitutional right to same-sex marriage. He was on the losing side of Obergefell v. Hodges and for the only time, read part of his dissent from the bench.

The case that legalised same-sex marriage nationwide in 2015 was based on constitutional issues, while the LGBT ruling concerned a statute: the Civil Rights Act of 1964. At issue was whether Title VII of the Act, which prohibits employment discrimination “because of such individual’s … sex”, also prohibits discrimination on the basis of sexual orientation or gender identity. The unexpected ruling was widely applauded. It means a company cannot fire an employee just because it disagrees with someone’s sexual lifestyle.

Chief Justice Roberts a year ago wrote the 5-4 majority opinion that blocked the president’s plan to add a citizenship question to the 2020 census. The proposal failed the essential requirement of administrative law for “reasoned decision making”, similar to his logic in the DACA case. Chief Justice Roberts dismissed the administration’s proffered good-government rationale as pre-textual, or as the dictionary puts it, “dubious or spurious”.

Regarding the immigration case, Roberts wrote: “This is not the case for cutting corners.” That’s a sentence sure to be echoing in the halls of the solicitor general’s office, which represents the government before the court, where Chief Justice Roberts once worked and where he honed his ability to speak to the Supreme Court. It appears that five of the nine Justices have trust issues with the president and his administration. It’s complicated with four colleagues to his left and four to his right. He speaks for the Court from a centre chair determined not to let it be seen as a lapdog for the president.

Linda Greenhouse, a journalist who covered the Supreme Court for years, wrote: “The Court was realigning itself, as it has done historically, with its own sense of what the public wanted and expected from it. No great Supreme Court case is only a question of law. It is always also an episode in the ongoing dialogue by which the Court engages with the society in which it operates and in which the justices live.”

Chief Justice Roberts’s pivotal role in the Court will likely be highlighted in its closing weeks, as it considers important cases involving the separation of church and state and abortion.

And as for the battle between Trump and the Supreme Court, it will likely come at the end of this court term. That is probably when the justices will decide his long-running battle to shield his personal financial records from Congress and a New York prosecutor.

Regardless of what happens in the presidential election, Trump and the Court have not seen the end of each other.

—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels

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