Trump Judges Are Enabling Trump’s Agenda and Self-Interest
By Elliot Mincberg, Senior Fellow, People For the American Way
After the recent Supreme Court argument during which its right-wing justices appeared ready to approve the Trump administration’s damaging plan to add a citizenship question to the U.S.2020 census, commentators expressed concern that the Court has “become a rubber stamp for Trump.”
That hasn’t happened completely yet, since Chief Justice Roberts joined the Court’s moderates in a 5–4 ruling last December that rejected Trump’s effort to immediately put into effect a ban on individuals seeking asylum anywhere other than a formal port of entry.
But Trump’s two Supreme Court appointments, Justices Brett Kavanaugh and Neil Gorsuch, have done their best to approve every action by the Trump administration that has come before them. The same is true of Trump’s court of appeals appointments, who have also tried to enable Trump’s agenda and self-interest. Unless jurists like Roberts stand up to the Trump administration and the Senate rejects some of Trump’s far-right nominations, the Supreme Court — and all our federal courts — may indeed become rubber stamps for Trump.
Start with the Supreme Court. Gorsuch and Kavanaugh have been key votes in several 5–4 rulings that have enabled Trump’s agenda. Last June, Gorsuch was the deciding vote in the 5–4 decision that upheld Trump’s infamous Muslim ban. As Justice Sotomayor explained in dissent, the holding effectively approved “official religious prejudice” and “upend[ed] this Court’s precedent.”
This year, Kavanaugh and Gorsuch have already cast key votes in several cases. In March, Kavanaugh and Gorsuch voted to reverse an appellate court in a 5–4 decision that ruled that immigrants who have been released after committing crimes as minor as illegally downloading music can be picked up even years after their release and detained indefinitely pending possible deportation. The ruling also applies to legal immigrants who have been in this country for decades, and aligns closely with Trump’s anti-immigrant agenda. As Justice Breyer explained, the decision means that such immigrants can be detained for years, even though they may never be deported, and “will work serious harm” to many immigrants and “to the principles for which American law has long stood.”
And in a ruling that could have come out the other way if Kennedy rather than Kavanaugh were still on the Court, the Court voted 5–4 in January to dissolve preliminary injunctions in two lower courts and permit Trump’s military transgender ban to take effect while the litigation goes forward, which could take a year or more. As one veteran put it, the holding “has made it harder for every commander in the military,” since each will “have to look at some of the best troops we have and kick them out for being honest about who they are.”
Trump’s appellate court judges have acted similarly. In a recent decision, Trump-appointed D.C. Circuit judge Greg Katsas cast the deciding vote to restrict lower court judges’ ability to release grand jury material to the public, even long after a grand jury has finished its work. That ruling could immediately benefit Trump by preventing public release of grand jury material from Robert Mueller’s report on Russian interference in the 2016 election.
In 2018, Trump Fifth Circuit Judge Don Willett cast the deciding vote to strike down a federal law and give the president the power to fire for any reason the head of an independent housing finance agency established by Congress. The decision followed then-Judge Kavanaugh’s dissenting argument that the Consumer Financial Protection Bureau should similarly be subject to presidential control, an argument rejected by the D.C. Circuit because it “flies in the face” of Supreme Court precedent. In fact, the full Fifth Circuit is now reconsidering the decision although, now that it is headed by a Trump appointee, the agency has switched sides and argued that Trump should be able to fire its director for any reason.
Trump has made clear that he will continue to try to use the federal courts to advance his agenda and interests, vowing to fight “all the subpoenas” by House committees exercising their oversight responsibilities and even to “head to the U.S. Supreme Court” if impeachment proceedings begin against him. If judges appointed by previous Republican and Democratic presidents follow the law and not Trump’s interests, as many have previously done, his efforts should not succeed. But Trump judges and justices have already enabled much of his agenda, and we can only expect more such rulings in the future, particularly if more Trump judges are added to our federal courts.