Donald Trump vs. the courts
Supreme Court judges should never be taken for granted
We all learned an important lesson last week. While any president of the United States has a wide array of powers conferred upon him or her by the American constitution, no president, not even a President Donald Trump, has absolute power and no president is above the law.
Last week, the 9th United States Circuit Court of Appeals, located in San Francisco, ruled that Trump’s Executive Order banning entry into the United States for a period of three months for persons coming from seven predominantly Muslim countries, while also indefinitely prohibiting entry for anyone from Syria, was unconstitutional and thus of no force or effect.
In now predictable fashion, President Trump expressed outrage over this decision, stressing that the three judges on the Court of Appeal were putting American national security in jeopardy. In their unanimous judgment, the judges found that the federal Attorney General had failed to show any evidence that all people from these seven countries posed a threat to America.
The Trump White House now has the option of appealing this judgment to the United States Supreme Court for a final resolution, or drafting a new Executive Order on immigration that would comply with the American constitution.
If President Trump authorizes an appeal to the Supreme Court in Washington, D.C., the federal government will be bringing an appeal to a court with only eight sitting judges. Last year, Mr. Justice Antonin Scalia, a republican appointee with pronounced conservative instincts passed away, leaving the U.S Supreme Court divided between four noted conservative judges facing off against four noted liberal judges.
President Obama sought to tip the scales of justice to the liberal side with the nomination of Judge Merrick Garland, but Republicans in the Senate refused to even consider his appointment. Under the American constitution Senate confirmation of a president’s nominee is required in order for that person to be appointed to the Supreme Court.
Now, this open seat on the court is subject to President Trump’s initiative and he, not surprisingly, has selected a noted conservative judge, Neil Gorsuch to replace Mr. Justice Scalia.
This nomination is now in the hands of the Senate and also, not surprisingly, Senate Democrats are balking at Judge Gorsuch’s appointment. While it’s probable that the Senate will eventually confirm Gorsuch in that he tends to be seen as a moderate conservative, don’t expect such Senate confirmation to come any time soon.
This means that if Trump appeals his Executive Appointment travel ban to the Supreme Court, the eight judges on this court may come to a 4/4 split decision. In such a case, the rules of the Supreme Court stipulate that a majority of the court has not overturned the lower court decision, meaning that the lower court decision is upheld as valid law.
Once again we may see a vivid example of the constitutional limitations on President Trump’s power. It’s also intriguing to speculate on how the Supreme Court might deal with this matter even if Judge Gorsuch was on the court. While court-watchers have long noted a tendency for the members of the court to divide between liberal and conservative approaches to law, justice and the constitution, these divisions are never set in stone.
In the 1970s and 80s, Mr. Justice Warren Burger, a republican-nominee, came to be a swing-vote on notable cases dealing with equal rights, the abolition of the death penalty, and the abortion decision of Roe v. Wade. Likewise, Mr. Justice John Roberts, the current Chief Justice and also a republicannominee, cast the deciding vote to uphold the constitutionality of Obamacare in 2012.
Supreme Court judges should never be taken for granted. And their ultimate loyalty is not to the president who nominated them but to the constitution they are sworn to protect.