This past week, the U.S. Supreme Court handed down three rulings that were music to the ears of liberals: The court declined to take up a case, brought by the Trump administration, challenging California’s sanctuary cities’ rights in withholding cooperation from ICE. It ruled against allowing workplace discrimination against LGBTQ Americans, with Trump-nominated Justice Neil Gorsuch penning the decision. And finally, with Chief Justice Roberts casting the swing vote and writing the majority opinion, it held that the way in which the administration had sought to scrap DACA wasn’t legally sound and that, for now at least, DACA would continue.
Now don’t get too excited. This is hardly a liberal renaissance on the court. In fact, over the last three years the conservative justices have sided with the Trump administration in an array of high-profile cases. They have allowed the Muslim travel ban to go into effect. And they have permitted the administration to begin construction on its border wall using funds diverted from other projects, to implement the MPP protocols that hold asylum seekers south of the border while their cases are wending their way through U.S. courts, and to implement Public Charge rules drastically restricting immigrants’ access to safety net programs — all while the underlying legal arguments are still playing out in the lower courts.
But Trump wants more. He expects total submission and fealty from the courts. The rulings this past week, the DACA one in particular, got under Donald Trump’s skin in a big way. And so, he did what he always does in such situations: He took to Twitter. On Thursday, he wrote: “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 continued, as he has done of late, by returning the issue to guns — a non-sequitur at best, but a concept he believes rallies his base like few other themes. “We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”
Continuing his twitter fusillade against the Supreme Court, Trump wrote: “The recent Supreme Court decisions, not only on DACA, Sanctuary Cities, Census, and others, tell you only one thing, we need NEW JUSTICES of the Supreme Court. If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and … Religious Liberty, among many other things, are OVER and GONE!”
Meanwhile, taking their cues from Trump, his political wingmen on Capitol Hill were personalizing their attacks on the judiciary — and on the conservative figure of John Roberts — to an extraordinary degree. Sen. Tom Cotton (R-Arkansas), who has recently been positioning himself as the post-Trump Trump, as well as Sen. Ted Cruz (R-Texas), took to conservative media to urge Roberts to resign and to critique his legal judgment in the wake of the DACA decision.
That Trump is attacking the most conservative Supreme Court in decades as being a plaything of the radical left is in one sense bizarre. But, it is also entirely predictable. From the get-go, Trump has shown nothing but contempt for the concept of an independent judiciary. When rulings go his way, he basks in the glory; but when rulings go against him and his friends, he has long used his platform to intimidate and to smear judges, lawyers — even members of juries.
Back in late February, he personally attacked the jury forewoman in the Roger Stone case. This attack came fast on the heels of Trump’s urging the Justice Department to reverse its sentencing recommendation for Stone; and of his decision to bypass the rigorous process that usually accompanies presidential pardons, and to pardon a who’s who of white collar crooks in one fell swoop.
Trump also declared earlier this year that he was the law, and that he had the absolute right to intervene in any criminal case as he desired. And, as he ratcheted up the intimidation campaign, he announced that Supreme Court justices Sonia Sotomayor and Ruth Ginsburg should recuse themselves from any cases involving Trump or Trump organizations.
These past months, in a period when the Senate’s acquittal of Trump following his impeachment in the House cemented his notion of legal invulnerability, Trump has massively increased his campaign against the independence of the judiciary. While one could argue that earlier attacks, such as when he accused a Mexican-American judge of being incapable of impartiality simply by virtue of his ethnicity, were more rhetorical than practical — that they were designed to enthuse his base and enrage his opponents — this recent batch of actions has a direct impact on how the legal system functions. Essentially it creates an impression that the president and his friends are above, or outside of, the law; and that the institutions and propaganda tools of government are now being weaponized to ensure that those in Trump’s inner circle can’t be held to account.
There’s an authoritarian’s playbook here, and Trump is using it to full effect. His methods are those of the strongmen rulers of today’s Poland and Hungary, Russia and Turkey; or of past rulers in Germany and Italy. Attacking the independence of the judiciary has been a central political tactic of Poland’s governing Law and Justice Party over the past five years. And it’s how the Russian political system has, since the late 1990s, become little more than a plaything for Vladimir Putin. One attack after the next, on both individual judges and, more generally, on the principle of an independent judiciary, has taken the system in Poland and in Russia seemingly beyond the point of no return. In Trump’s America, a similar assault on the judiciary is now underway: attack judges when they rule against you; work out end-runs around their rulings; or simply ignore judicial decisions and dare the courts to try to impose their legal will.
Earlier this year, the Ninth Circuit court of appeals blocked the administration’s dangerous policy — known, in true Orwellian-speak, as the Migrant Protection Protocols (MPP) — of forcing asylum seekers to remain in Mexico, in squalid and dangerous camps south of the border, while they await their court hearings. A few hours later, the court stayed its own ruling until after the weekend, to allow the government to appeal the decision, and Customs and Border Patrol immediately sent out an exclamation-point punctuated tweet announcing the agency would immediately begin enforcing MPP again. However, while this was unfolding, a Trumpified bureaucracy was giving every indication that it would do pretty much whatever it wanted vis-à-vis asylum seekers.
Trump’s immigration agencies, in particular, have flouted legal rulings time and again. Indeed, within hours of the first ruling against MPP, reports were circulating that the administration, backed by conservatives in Congress, would use emergency powers to close the border to migrants, citing the threat of coronavirus as its justification. This just hours after Trump declared, at a political rally in South Carolina, that the focus on coronavirus was a “new hoax” dreamed up by corrupt Democrats to undermine his presidency. By April, that border had, indeed been closed. It remains closed today, and, as a result, the administration has virtually halted all asylum entries, and has also abandoned any pretense of due process, instead simply throwing thousands of people back over the border.
Closing the border to asylum seekers immediately after a court ruling to open the border to them may be technically legal, in an emergency context, but it certainly undermines any notion that Trump and his team abide by court rulings that they dislike. They are using the courts solely as a political tool, to further their goals around immigration, deregulation and the like. They are also showing an increased willingness to cite emergency needs as a way around any and every decision that they do not like. Justice Sotomayor’s dissent to the recent Supreme Court ruling allowing Public Charge rules to kick in, and to begin fundamentally reshaping U.S. immigration policy, highlighted this rush to declare “emergencies,” and suggested that such claims “ring increasingly hollow.”
Trump’s governing style is that of men such as Hungary’s Viktor Orbán, Poland’s Mateusz Morawiecki and Brazil’s Jair Bolsonaro. Everything — be it public health crises, immigration or corruption investigations — is viewed as an emergency; and, the government is, increasingly, citing these “emergencies” as reasons to not abide by lower court rulings it finds inconvenient, and to fast-track appeals to the conservative-dominated Supreme Court, where it knows it has a more sympathetic audience.
In the main, it has been racking up wins at the Supreme Court. But, as this past week has shown, even Chief Justice Roberts has his limits. Trump brooks no dissent — be it from senators or from judges. He now believes Roberts is his enemy. He also believes any member of the Justice Department who investigates any wrongdoing by Trump or any of his associates is also to be considered a mortal foe.
On Friday evening, the day after the Supreme Court embarrassed Trump over DACA, the Trumpified Department of Justice, under Attorney General Barr, announced that the Manhattan U.S. Attorney, Geoffrey Berman, who was investigating Rudy Giuliani, was resigning, and that, in his stead, Trump would nominate a loyalist with no prosecutorial experience. In a twist, however, Berman said that he wasn’t resigning, that he had learned of his supposed resignation via a press release, and that he wouldn’t voluntarily step down. His actions signified just how concerned career figures in the Justice Department are by Trump and Barr’s ongoing assault on the independence of the legal system.
A few hours before his embarrassingly poorly attended Tulsa rally, Trump responded in true Banana Republic fashion by firing Berman. Astoundingly, in a quite shameless instance of deflection, Barr announced that this was because Berman had “chosen public spectacle over public service.” The term “double-speak” doesn’t even begin to cover the foulness of this sentence.
When political leaders systematically undermine the legal process, democracies die. Trump doesn’t want a country subject to the rule of law; instead, he craves a politicized justice department, an entirely pliant court system, and a carve-out that allows him and his acolytes to do whatever they want, to plunder and to pillage with impunity. He craves loyalty above legality, and then dares to claim to be “your law and order president.” In fact, as is becoming clearer by the day, he’s nothing more or less than a two-bit villain — one whose drawing power is fading fast — playing a reality-television strong-man.