For the second time in a week, President Donald Trump has suffered a withering defeat at the Supreme Court. The decisions that blocked the termination of the Deferred Action for Childhood Arrivals program and delivered a landmark opinion in favor of LGBTQ workers caused the embattled President to blast out his disappointment.
“Do you get the impression that the Supreme Court doesn’t like me?” Trump asked his Twitter followers.
“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” he said.
The decisions, coming down as the election heats up, wave a warning flag to Trump’s base, which has largely looked past his previous chaotic tweets and other antics since the beginning of his tenure because they believed his implicit promise to win at the Supreme Court.
Instead, Trump has suffered two losses – one delivered by his own nominee Neil Gorsuch. The decisions come as the presidential candidates prepare to emerge after the Covid-19 quarantine onto the public stage.
Heading out on the trail, Trump might have some explaining to do.
Instead of the Supreme Court, bolstered by two of his nominees, taking a hard right turn, it feels more like a swerve: two big losses so far, some wins, with other cases on abortion and Trump’s tax returns still to come.
By the end of the term, the picture could look different. Still to come is a major case concerning the independence of federal agencies and the separation of powers. That is a cornerstone issue for the Trump administration.
The court is also examining the first abortion case heard by Justice Brett Kavanaugh and Gorsuch. And at oral arguments, some of the conservative justices suggested Congress may have gone too far in broad ranging subpoenas for Trump’s personal records.
But for now, the Supreme Court is issuing opinions Trump did not expect, unsettling a President who won the presidency in part based on promises he made about the Supreme Court.
Monday, Trump was reserved after the landmark LGBTQ win. He said he’d live with it. Thursday, he was no longer muted. He was left to tell his base that they should vote for him so he could add even more justices to the Court. “We need more Justices or we will lose our 2nd Amendment and everything else. Vote Trump 2020,” he said.
Left unsaid was the fact that his own nominee ruled against him in the LGBTQ case and now presumptive Democratic nominee Joe Biden can run on a platform to strengthen DACA.
“I will continue to stand with DACA recipients, their parents, and their families at every step, and in November, joined by millions across this country, we will reject the President who tried to rip so many of our family members, friends, and coworkers out of our lives,” Biden said in a statement.
And Trump will be the candidate in court still trying to phase out the program.
DACA
With DACA, Trump predicted a win at the Supreme Court. After bruising losses in the lower courts, the Justice Department could have gone back to the drawing board and rescind the program in a way to avoid legal issues. Instead, the administration went to the Supreme Court. Back in November 2018, the President promised victory on the South Lawn. “We want to be in the Supreme Court on DACA,” he told reporters.
“That’s where,” he said, “we’ll be given a fair decision.”
But the justices sat on the petition for months, only agreeing to hear it at the end of last term.
When the justices finally stepped in to take up the case and then decide against him, they directly contradicted the Justice Department’s legal position.
Chief Justice John Roberts’ opinion boiled down to him saying that while the administration had the authority to end the program, it hadn’t done it the right way.
“Roberts formed a narrow majority with the more progressive justices not because he disagrees with what the Trump administration is doing, but because he disagrees with how they did it,” CNN legal analyst and University of Texas Law professor Stephen Vladeck said.
Trump has said mixed things about those brought to America while as children but are undocumented in the past
“Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military?” He asked on twitter on September 14, 2017.
But by November 12, 2019, his message was different. “Many of the people in DACA, no longer very young, are far from ‘angels’” he tweeted. “Some are very tough, hardened criminals” he said, ignoring the fact that participants are only eligible if they have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors.
The Gorsuch factor
In the DACA case, Neil Gorsuch was in dissent. But Monday, he was the author of the landmark opinion clearing the way for LGBTQ workers to benefit from protections under federal civil rights laws.
Trump allowed that the decision was “powerful” and he didn’t criticize his nominee, perhaps realizing that Gorsuch would likely be in his corner on issues such as abortion and the separation of powers.
In the past, Gorsuch has cast key votes in favor of Trump’s legal positions.
But other judicial conservatives didn’t hold back suggesting a new schism.
Sen. Josh Hawley, a Missouri Republican who is a former clerk to Roberts, took to the Senate floor to say the decision represents “the end of the conservative legal movement.” He was deeply critical of the majority opinion’s reliance on traditionally conservative legal tools of interpretation to rule in favor of the LGBTQ community. “If textualism and originalism give you this decision,” he said, “an outcome that fundamentally changes the scope and meaning and application of statutory” than “those phrases don’t mean much at all.”
He stressed that he wasn’t personally criticizing Gorsuch, who he said was doing what he “thought was best.” But he said he did question how the judges in the majority “ended up on that bench.”
Such criticism falls into the lap of the Trump administration and conservative groups who have pushed through Trump’s nominees with ferocity.
