Donald Trump discovers US Supreme Court is prepared to stand up to him – Henry McLeish

Donald Trump receives a stinging rebuke from the US Supreme Court, but there are still worrying signs for the rule of law in America, writes Henry McLeish.
Donald Trump was furious after the US Supreme Court ruled against him (Picture: Pablo Martinez Monsivais/AP)Donald Trump was furious after the US Supreme Court ruled against him (Picture: Pablo Martinez Monsivais/AP)
Donald Trump was furious after the US Supreme Court ruled against him (Picture: Pablo Martinez Monsivais/AP)

President Trump is raging at recent US Supreme Court rulings which challenge his political, legal and constitutional invincibility. Amidst crumbling poll numbers and a pitiful handling of the coronavirus crisis, his niece, psychologist Mary Trump, has described her uncle in a new book as “the most dangerous man in the world”.

The Supreme Court of the United States (Scotus), one of the most popular institutions in the US, is the highest and most powerful court in America, handing down rulings which are often groundbreaking, sometimes controversial, and nearly always contested by supporters of both the Democratic and Republican parties.

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As the custodian of the Constitution, Scotus concentrates on the law, but is invariably criticised for its perceived partisanship and right-leaning credentials, especially when ruling on issues of gun control, religion, abortion, race, gender and voting rights, known in America as the “cultural wars”.

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The court was established as part of the US Constitution in 1789, when the Framers decided to vest federal judicial power on “one supreme court and such inferior courts as the Congress may from time to time ordain and establish”. The first meeting took place in February 1790 in New York.

Appointed for life, one chief justice and eight associate judges deliberate in the highest court in the federal judiciary. It is the court of last resort for those looking for justice and plays an essential role in ensuring that each branch of government recognises the limits of its own power. To protect civil rights and liberties, it can strike down laws that violate the US Constitution.

Finally, the court sets appropriate limits on democratic government by ensuring that “popular majorities cannot pass laws that harm or take advantage of unpopular minorities” and it can also strike down presidential directions.

Justices reject Trump’s immunity claim

The best-known power of Scotus is judicial review, or the ability to declare legislation or executive acts in violation of the constitution: a power not found within the constitution itself. Overall, it aims to ensure that the changing views of a majority do not undermine the fundamental values, common to all Americans, especially freedom of speech, of religion and the due processes of law.

But last week something unexpected happened. Only months away from the elections in November, the justices rejected Trump’s claim of immunity over his tax and financial records and paved the way for New York prosecutors to subpoena the President. This was the latest in a series of rulings that have infuriated Trump.

Earlier, Scotus had stopped the Trump administration from moving forward with plans to end a programme protecting 650,000 undocumented immigrants, the Deferred Action for Childhood Arrivals.

This followed a landmark civil rights victory for gay and transgender workers. Completing this unprecedented rejection of Trump-inspired policies, a Louisiana law, which would have effectively ended abortion in the state was struck down.

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In characteristic fashion, Trump lashed out at these judgments, suggesting this was “prosecutorial misconduct” and “a political witch hunt”. For Trump, this was betrayal. His two appointments are there to serve him, not the country.

At his recent rally in Tulsa, he had ranked his Scotus appointments as “among his biggest achievements”, arguing that “we have two justices of the Court, Kavanaugh and Gorsuch, they’re great”. Both of Trump’s appointees voted against his “absolute immunity” from investigators seeking his tax returns.

Attacks on the judicial system

Of greater significance was the pushback by the George W Bush appointee and Chief Justice, John Roberts who, increasingly frustrated and irritated by Trump’s behaviour and his disrespect for the law and legal institutions, said: “No citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding”.

This was a stinging rebuke to Trump.

The President, a populist, authoritarian and xenophobic narcissist, is experiencing unprecedented reversals of his signature policies. Since his election in 2016 he has attacked and undermined judicial institutions, trying to shape them in his own contorted image. He seemed to be succeeding, but these recent setbacks, surprising as they are, will boost the morale of progressively minded Americans who oppose a President who has no respect for institutions or the rule of law.

But away from the Scotus there is another onslaught on the courts and judicial system being inspired by Trump and orchestrated by majority Senate Leader Mitch McConnell who, to quote Bloomberg News journalist Laura Litvan, is creating his own legacy in the make-up of the judiciary.

To the exclusion of urgently needed legislation, the Senate is being turned into “a machine that cranks out conservative judges”.

The Senate leader, sometimes known as the “Grim Reaper”, has helped confirm Senate approval for 192 federal judges, including 137 district court judges, and in addition 51 appellate judges and two Supreme Court justices since 2017. No president since Ronald Reagan has made so many changes.

A slide toward authoritarianism

By the end of his presidency, Trump may have replaced more than a quarter of his judges. This may be his greatest legacy, a major threat to the impartiality of the judiciary, a strengthening of conservatism on the bench, a right-leaning boost to winning the cultural wars and a roll-back of woman’s, civil, voting, consumer and environmental rights.

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These appointments are influenced by the Federalist Society, an organisation of conservatives and libertarians that argue and advocate for a textualist and originalist interpretation of the US Constitution. These are fundamentalists with an incredibly narrow view of the law.

Trump is doing incalculable damage to the judicial system. This is how countries slide towards authoritarianism, while the complacent argue it could never happen here.

In the spirit of authoritarianism, the President said: “These horrible and politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republican or Conservative”. Fomenting civil strife is never far from the president’s mind.

In his search for revenge, Donald Trump reveals his vindictive self. Commuting the 40-month sentence of Roger Stone, after multiple instances of law-breaking – including obstruction of justice, lying to Congress and witness tampering –the President is, beyond any reasonable doubt, guilty of cronyism, corruption and contempt for the rule of law.

Mary Trump is right. Her uncle is the most dangerous man in the world.

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