Can the Supreme Court Save Itself?

With a rogue malignant narcissist in the White House and a Congress where Republicans no longer care about facts an, indeed the rule of law, the last institution left to protect the nation and constitutional norms is is the U.S. Supreme Court.  With the appointment of two ideologues to the Court by Trump, the question now is one of whether the Court will become yet another of the Republican partisan political agenda and, in the process lose the respect of the majority of Americans.  Courts are expected to follow the rules and not support the whims and demands of a would be autocrat and rely to a large extent on public acceptance of their rulings as their source of legitimacy.  As a column in the New York Times argues, the Court finds itself on a precipice that will determine if it becomes viewed as merely a partisan body that no longer follows the long established rules of operation. Rules, which if followed would require rulings against both the Trump administration and Trump personally in his effort to hide his tax returns (which must contain some bombshells given the desperation with which he seeks to hide them from view).  Here are column highlights:

I’m often asked these days whether there is anything the Supreme Court can do to extract itself from the partisan trap into which the rancid confirmation process and the court’s own behavior have driven it. It’s a hard question because, of course, individual justices have deeply held views that happen for the most part to map onto the views of the presidents who named them to their seats.

That wasn’t always the case — think Chief Justice Earl Warren, named by President Dwight Eisenhower, or Justice Harry Blackmun, appointed by President Richard Nixon. But it’s the case now, and it’s unrealistic to suppose that either the five conservative Republican-appointed justices or the four moderates named by Democrats would — or even should — put their basic beliefs about the Constitution or the interpretation of statutes on the shelf in an effort to persuade the public that the court is not just another political institution.

But the recently argued case involving young undocumented immigrants known as Dreamers and the pending effort by President Trump to quash subpoenas seeking his tax information from his personal accountants suggest that there is something the court can do. These are extraordinary cases, to be sure, but they easily — even obviously — lend themselves to resolution by ordinary rules.

And that would be the point: business as usual, no matter who’s in the White House. Although President Trump and his attorney general, William Barr, have excoriated lower-court judges as agents of “the resistance,” in fact it’s the judges who have been following the rules and the administration that behaves as if the rules apply only to everyone else.

The case involving the Deferred Action for Childhood Arrivals program, or DACA, is a prime example. . . . The case is not about DACA’s legality or presidential discretion. It’s about rules: whether in rescinding DACA, the president adhered to the core principles of administrative law. Judges in four federal judicial districts found that he did not.

The Administrative Procedure Act doesn’t tell the government what to do. It simply requires that actions of federal agencies be supported by reasoned decision-making. When challenged, agencies have to provide explanations that are plausible and consistent rather than “arbitrary and capricious.”

It was on this basis that the administration’s effort to add a citizenship question to the 2020 census crashed and burned in June. The judges who blocked the plan, including Chief Justice John Roberts in his majority opinion, did not, as Attorney General Barr implied in a speech last week to the Federalist Society, “inquire into the subjective motivation behind governmental action. . . . The judges simply put the administration’s stated reason (to aid the Justice Department’s enforcement of the Voting Rights Act) side by side with the facts (the request had not originated with the voting rights enforcers) and decided that the distance between the two was too great to meet the test of reasoned decision-making.

[Trump] The president would almost certainly have gotten away with rescinding the DACA program if he and his lawyers had simply said, “We don’t like DACA, it’s inconsistent with our approach to immigration policy in the following ways, and we’re getting rid of it.” But the lawyers couldn’t say that because President Trump had promised “the Dreamers” at the start of his administration that they would have his continued support. So the explanation the lawyers offered was that they had to terminate the program because they had discovered that it was illegal.

Rejecting this conclusion as “conclusory” and “virtually unexplained,” Judge John Bates of the Federal District Court in Washington took an unusual step. Rather than issuing an immediate injunction to block the rescission, he gave the administration 90 days “to better explain its view that DACA is unlawful.” Instead, the administration came back with what amounted to a new explanation of a different kind: that DACA was sending the wrong message by seeming to endorse and invite illegal entry into the country.

Responding in a second opinion, Judge Bates said that to accept what he called the “messaging rationale” would violate a basic principle of administrative law, which requires judges to disregard after-the-fact explanations “for why the agency could have taken the action.” Quoting a precedent from the federal appeals court in Washington, Judge Bates said that an agency’s subsequent explanation “must be more than a barren exercise of supplying reasons to support a preordained result.”

[I]f the administration wants to offer policy-based reasons for terminating DACA, it has to explain its policy choice, including why the need to end the program outweighs the fact that some 700,000 DACA recipients have built their lives around their ability to remain in the United States. Judge Bates said that when an agency is terminating an existing policy, the Administrative Procedure Act requires a “more substantial justification” than usual if the “prior policy has engendered serious reliance interests.”

So that’s how the ordinary rules would work in the DACA case. It’s not particularly complicated, but the conservative justices appeared to be having a hard time with it when the case was argued last week.

When it comes to the president’s effort to shield his tax returns, the justices need to do even less than that.

Two appeals by the president, in his private capacity and represented by private lawyers, have reached the Supreme Court in the past week. One, Trump v. Vance, is a formal appeal from a ruling by the federal appeals court in New York upholding the validity of a grand jury subpoena obtained by the Manhattan district attorney, Cyrus Vance, and served on the president’s accountants for his personal and business tax records.

“Any presidential immunity from state criminal process does not extend to investigative steps like the grand jury subpoena at issue here,” Chief Judge Robert Katzmann wrote for the appeals court. Any further question, he added pointedly, “is purely hypothetical.”

The Trump lawyers’ Supreme Court petition, referring to Mr. Vance as “politically motivated,” “a lone county prosecutor,” instructs the court that “a sitting president should be categorically immune from state criminal process.”

Whether the Supreme Court ultimately grants review in these cases is purely discretionary. In their preliminary posture, and in the absence of conflicting opinions from other courts, the cases don’t satisfy the justices’ ordinary, if loosely defined, criteria for cases worthy of their attention. The president’s lawyers appear to recognize this, compensating with their hyperbolic language about the dire consequences to the presidency and the country if the subpoenas are enforced.

I remember similar arguments in the Paula Jones case, when President Bill Clinton’s lawyers went to the Supreme Court with the claim that a sitting president should not be subject to a lawsuit. Mr. Clinton lost that argument by a vote of 9 to 0.

What should the court do with the Trump tax cases? If the justices play by their ordinary rules, they will turn them down.

DACA supporters have criticized the administration’s position that “the law is making us do it” on the ground that the administration is seeking to evade responsibility for a decision that while perhaps popular with the president’s base, is likely to be unpopular with the country as a whole once mass deportations of DACA recipients begin.

And if the justices don’t follow the ordinary rules of administrative law, the Supreme Court will own it too — as it will own President Trump’s effort to keep his tax returns secret if the justices don’t steer clear of his cases. Can the Supreme Court save itself from itself? We’re about to find out.