Contempt of the Court

President Trump and Senate Minority Leader take turns throwing barbs at Justices

Baylynne Brunetti / Contributor / The USD Vista

Throughout American history, there have been presidents who have shown contempt for the Supreme Court of the United States. There have been feathers ruffled and snarky comments directed at decisions throughout the interactions between the executive and judicial branch, but there has never been anything as outlandish as President Trump’s interactions with the Supreme Court. Presidents have not gone out of their way to target individual justices. This behavior has geared us toward an even higher rhetoric of disrespect and sexism from the executive office. 

In a tweet late last month, President Trump claimed that Justices Sonya Sotomayor and Ruth Bader Ginsburg were biased against him and should recuse themselves from all Trump-related cases. This is not the rhetoric that should be displayed against justices sitting on the highest court in the nation. It is a blatant disrespect toward yet another government institution. 

First and foremost, in Justice Sotomayor’s dissent in Department of Homeland Security v. New York, she never once directly criticized President Trump. Sotomayor dissented in the dispute over a Trump administration regulation that would make it more difficult for immigrants who use public benefits, Medicaid, housing and other non-cash assistance, from obtaining green cards. Sotomayor also observed that the conservative majority’s pattern “has benefited one litigant over all others.” She is referencing that the conservative majority is displaying a pattern that is siding with the Trump administration in a majority of cases. In her dissent, Sotomayor wrote, “It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”

She added that when the administration wins, it often swiftly returns. “The Government wants more,” Sotomayor notes, “Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each. And with each successive application, of course, its cries of urgency ring increasingly hollow.” 

Justice Sotomayor is not wrong. The Trump administration, in its almost four years in power, has brought an unprecedented amount of “emergency” cases to the high court, even though the government presents almost no convincing evidence of an emergency. Historically, the government has jumped over lower courts to appeal to the Supreme Court on rare occasions to block adverse rulings before they are fully litigated. 

The Trump administration, however, has done so with considerable success and increased regularity, particularly in immigration-related cases. Stephen I. Vladeck, a professor at the University of Texas School of Law, called attention to the pattern of behavior that Sotomayor was criticizing in a November 2019 paper in the Harvard Law Review. He found that Trump’s solicitor general sought emergency stays in 20 cases in the first 2 ½ years of Trump’s term, including six to stop nationwide injunctions against bans on travel from certain majority-Muslim countries and three involving Trump’s policy barring transgender Americans from serving in the military. By comparison, in all 16 years of the Barack Obama and George W. Bush administrations, the solicitors general filed a total of eight stay applications. The Trump administration, in its usual fashion, continues on an unprecedented path with little respect to any political institution. 

In regards to Justice Ruth Bader Ginsburg, President Trump has held a derision toward her since his campaign in 2016. Justice Ginsburg commented on how President Trump was inconsistent and she did not see him as a viable candidate. She then apologized after her comments went public since it is frowned upon for the justices to express partisan opinions. But, President Trump has latched onto the comment to further degrade her mind, her character, and her decisions on the court. Just add Justice Ginsburg and Sotomayor to President Trump’s list of Twitter attacks as his Twitter fingers further degrade our political institutions. 

However, the president has not been the only person singling out justices in a divisive tone. Last week, Senate Minority Leader Chuck Schumer spoke at a protest on the steps of the Supreme Court in regards to an abortion case that the court is scheduled to hear. Schumer stated that conservative Justices Neil Gorsuch and Brett Kavanaugh would “pay the price” if they restricted abortion rights. The next day, he went onto the senate floor to apologize for the way his statement was interpreted, and he was referring to a “political price” to pay. It would be hypocritical of me to not criticize Schumer for his commentary directed at the court. Schumer acted in a very Trump-like fashion and no sitting senator, especially the Senate Minority Leader should be calling out Supreme Court justices by name, even if the intent was to protect a woman’s right to choose. The difference however, is the apology and clarification that followed suit. 

I will, however, call out the hypocrisy that stemmed from the comments made by Senate Majority Leader Mitch McConnell. In response to Schumer’s address on the senate floor, McConnell went on a massive rant criticizing Democrats. McConnell called Schumer’s comments “astonishingly reckless and completely irresponsible,” claiming Schumer “threatened two associate justices of the U.S. Supreme Court. Period.” Where was McConnell’s criticism of President Trump when he called Justices Sotomayor and Ginsberg by name, calling for them to recuse themselves for doing their job?

Ultimately, it is very rare for justices to recuse themselves from cases, let alone from all cases involving a certain person. It happens when there is an immense conflict of interest, not when a justice has made a comment about the president before he was even in office. President Trump does not get to demand judicial recusal because of a comment, or a respectful dissent. This is another strong-arming Trump tactic to prevent two liberal justices from hearing cases that affect him. We should be very concerned about the lack of respect geared at two high-powered women by Trump. High-profile cases are on the line in the upcoming judicial docket and it would be obtuse to not draw a link between attacks on the justices of the court and the abortion cases about to be argued before them. The fact of the matter is, no sitting president, senator, representative or elected official should be criticizing the Supreme Court justices by name. The court is meant to be a non-partisan institution and should remain so as they continue to interpret our constitutional qualms.