Few critical US
democratic institutions have escaped unsullied from a tangle with Donald Trump.
Now, the US Supreme Court faces its greatest test so
far from the former president.
On Thursday, the nine
justices will hear a case with critical implications for the 2024 election –
over the Colorado Supreme Court’s decision to remove Trump from the ballot
over the 14th Amendment’s “insurrectionist” clause. By
early next week, the Supreme Court may also be considering whether to hear
another Trump appeal, against a lower court decision to reject his demand for
absolute presidential immunity over his efforts to overturn the 2020 election
following his false claims of voter fraud.
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The pair of hugely
significant and politically charged cases could thrust the justices deeper into
a presidential election than at any time since the court decided the disputed
2000 election in favor of then-Texas Gov. George W. Bush over then-Vice President
Al Gore. The historic reverberations from its new venture into campaign
politics may echo even longer than the case that ended a bitter post-election
period a quarter of a century ago. And given Trump’s habitual refusal to accept
the rules and results of elections, no one would be surprised if the court is
dragged deeper into the partisan fray before or after November’s presidential
election, presuming Trump becomes the Republican nominee.
The idea that the
Supreme Court is above politics has long been rather quaint given generations
of sensitive decisions on politicized issues, including slavery, voting rights,
civil rights, desegregation, interracial and same-sex marriage, health care and
recently abortion. But no modern president has gone further than Trump in
daring to shatter the notion that judges are obligated to pursue a higher
calling than partisan politics – preserving the rule of law.
The four-times
criminally indicted Trump repeatedly sets out to lean on or discredit
institutions that can hold him accountable, restrain his power or contradict
his incessantly spun alternative realities. He draws them into his vitriol and
falsehoods in a way that has harmed their purported reputations for being above
the fray.
When he loses an
election, he claims it’s rigged; when the press reports the truth, he blasts
the “fake news”; when he’s investigated, he claims it’s a witch hunt; when he’s
indicted, he warns the grand jury is biased; when he loses a case, he condemns
the entire court system as corrupt. The mantra of victimization is now at the
center of a presidential campaign based on the perception that he’s being
politically persecuted and is driving his determination to dedicate a second
term to retribution.
How Trump works
the refs
Even though Trump
is not expected to attend Thursday’s oral
arguments at the Supreme Court, the justices know what’s coming.
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During his
high-profile trials, the ex-president has worked relentlessly to discredit the
legitimacy of courts and judges. In his civil fraud trial in New York, for
instance, he frequently clashed with the judge, and lambasted him, his staff
and the case in regular breaks outside the court room. Trump last month stormed out of a trial over a defamation case brought
by the writer E. Jean Carroll — shortly before a jury awarded her a stunning
$83 million victory. After an appeals court in Washington, DC, this week rejected Trump’s extraordinary and
anti-constitutional claims of total immunity over his attempts to overthrow the
2020 election, the former president’s eldest son, Donald Trump Jr., attacked
the legitimacy of the judges who ruled unanimously. “No one who’s been watching
is shocked by this partisan hackery but here we go,” he wrote on X. “Time for
SCOTUS to step in.” In several of the cases that the elder Trump is involved
in, judges have imposed gag orders to protect the integrity of the proceedings.
The ex-president’s
power over his supporters is such that millions of them readily accept his
falsehoods, coming to believe key institutions of government are corrupt. That
leaves America’s political system and the rule of law more compromised than
before. The result is that many voters, at least in his political base, discount
the gravity of Trump’s alleged offenses.
According to a CNN poll conducted late last month, 49% of
Republicans say Trump did nothing wrong following the last presidential
election. While 40% said his actions were unethical, just 11% said that they
were illegal.
Many of Trump’s voters
believe they have been let down by the government or have lost faith in
institutions, authority figures and experts. Trump’s success in portraying his
legal travails as one huge conspiracy plays into these feelings and threatens
to inflict long-term damage on the country’s democratic institutions. A legal
system that is regarded as bent and biased cannot long retain the confidence of
its citizens. The perception that law enforcement has overreached against Trump
has only solidified his supporters’ sympathy for him.
The prospect of being
dragged into the hyper-politicized arena of a presidential election is a
nightmare enough for Chief Justice John Roberts, who has often sought
to guard the high court against reputational damage from the country’s raging
politics.
But an election case
involving Trump, in a time of far greater partisan fury than the bitter
aftermath of the 2000 election, could be an even graver matter – especially if
any of the court’s rulings eventually go against Trump. The former president
doesn’t play by the same moral codes as Gore, who gracefully swallowed his
anger and accepted his electoral loss after the ruling in Bush v. Gore. In the
past, the high court’s adverse rulings against Trump have been greeted with
sharp criticism from the former president. He has also suggested that the
failure of the three justices he nominated – Neil Gorsuch, Brett Kavanaugh
and Amy Coney Barrett – to do what he wants is a symptom of disloyalty. That
attitude underscores Trump’s transactional nature and his obliviousness to the
duty of judges to the law.
“I’m not happy with
the Supreme Court. They love to rule against me. I picked three people. I
fought like hell for them,” Trump said in his notorious January 6, 2021, speech
in Washington that proceeded the mob attack on the US Capitol – which is at the
root of both of the cases swirling around the president that the court is
expected to face. “It almost seems that they’re all going out of their way to
hurt all of us and to hurt our country. To hurt our country,” Trump went on,
referring to the justices.
Trump echoed those
remarks ahead of the Iowa caucuses last month, as he opened an effort to work
the referees – or the conservative justices on the Supreme Court – with regard
to the Colorado case. He claimed that judges appointed by Democratic presidents
were brazenly partisan and moaned that those picked by Republican presidents
didn’t follow suit. “When you are a Republican judge, and you have been
appointed by, let’s say Trump, they go out of their way to hurt you, so that
they can show that they have been fair, fair, honorable people. It’s an
amazing difference.” Trump went on, “It’s a different wiring system or
something – but all I want is fair, I fought really hard to get really three
very, very good people … I just hope that they are going to be fair because the
other side plays the ref.”
How Trump leans
on judges
Any judge that
delivers verdicts contradictory to Trump’s view risks becoming a target.
The former president’s
attack on a district judge that ruled against the Trump administration in an
asylum case prompted Roberts in 2019 to try to insulate the judiciary from
politics. “We do not have Obama judges or Trump judges, Bush judges or Clinton
judges,” Roberts wrote in an extraordinary statement that did not name Trump,
but clearly had him in mind. “What we have is an extraordinary group of
dedicated judges doing their level best to do equal right to those appearing
before them.”
Ever since, including
in several cases in which the justices declined to hear or rejected Trump’s
allegations about the 2020 election, he has had a tense relationship with the
high court.
CNN’s senior Supreme
Court analyst Joan Biskupic reported in her book “Nine Black Robes” that Roberts became
increasingly skeptical of policies from a Trump administration that repeatedly
stretched the limits of the law. For instance, Biskupic wrote that Roberts
switched his vote to seal a 5-4 ruling against Trump’s plan to add a
citizenship question to the 2020 census form.
And Biskupic also
pointed out how Roberts quietly brokered strong majorities against Trump’s
attempts to keep his personal tax and other financial records from the
Manhattan district attorney and, separately, committees of the US House of
Representatives.
After Trump’s
presidency, he and the high court were again at odds. The justices blocked Trump’s bid to stop the
release of presidential records to a House committee investigating the January
6 attack, for instance.
None of these cases
will bear on how the court rules in the Colorado case, and if it decides
whether to take up Trump’s likely appeal on the immunity matter.
But history shows that
however the court rules, Trump’s response will be filtered through his highly
developed sense of injustice and suspicion of institutions of accountability
and his often self-serving interpretation of the law.
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