Today, in response to a 5-4 decision finding Trump’s attempt to “arbitrarily and capriciously” end DACA and deport hundreds of thousands, POTUS tweeted that maybe the Supreme Court doesn’t like him. After all, he got an unfavorable decision earlier this same week whereby discrimination on the basis of sex, under Federal cilvil rights law, was determined to include include gay and trans people.
Forget about the fact that Trump makes these decisions about himself, instead of the millions directly affected by his administration’s blatant cruelty. Forget also that today’s decision is hardly a landmark as it turns on a procedural defect in the administration’s effort to end DACA. Theoretically, Trump can just start the process again and try not to make another mess of the procedure.
But this brings us to Trump’s question du jour. Do you get the impression that the Court doesn’t like him? Well, if he’s just making this about outcomes, then the only person he should be worried about is the Chief Justice not liking him. Roberts is now the swing vote.
I know we think of the Supreme Court as hallowed ground with quasi spiritual significance (that’s how I thought about the Court growing up), but it is also a working institution that has a clear mandate and mission. Numerous cases come before the Court throughout the year. There is a docket. It needs to be managed. The Court has some luxury to deliberate at length, but wasting time and mismanaging the business of the Court is not permitted.
On the contrary, this isn’t just the big leagues for lawyers and judges. This is the Hall of Fame! Only the best of the best should be here. There is an expectation that the lawyering will be up to a standard befitting the highest Court in the land. While this may not apply to pro se litigants, it is certainly the standard that the government should adhere to when arguing cases before the nine highest judges in the land.
Supreme Court justices, and particularly Chief Justices, know that administrations come and go, but members of the Court endure for decades. In order for the Court to fulfil its Constitutional duty, it must maintain credibility. An overtly politicized court has no credibility and its rulings will lack authority. Some will say that the Court is always politicized and it is only now, in our red-pill awakening, that we finally see.
While exhausting, that argument has some merit. It may provide a not wholly inaccurate historical characterization. But even if we accept that the Court has been (secretly?) politicized, it should not stop us from holding it to a higher standard going forward. You may say I have rose-colored glasses, but I still want the highest Court in the land to aspire to something special and important.
And you know who shares my opinion on that? John Roberts. As with the DACA case and the Muslim ban from early in Trump’s presidency, Roberts is concerned that this administration is not good at governing and doesn’t really care about procedural rules. Being President doesn’t mean you can just do stuff. If you want to change the way the government is functioning, then there is a way to do that. Roberts appears to be exasperated that Trump and the DOJ think they don’t have to follow established rules.
And note, we are not just talking about “norms.” I know Trump was elected to “burn it all down” or something, but there is a thing called the rule of law. Roberts, in some ways, sees himself as an important caretaker for that rule of law. And he’s going to continue to enforce the rules and deliver the appropriate response when those rules are broken.
The more Trump breaks those rules, whether inadvertently or on purpose, the more Roberts will be willing to side with the Court’s progressives.