—Andrea Scoseria Katz, NYU School of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]
If recent polls are anything to go by, U.S. President Donald Trump’s chances for reelection in November 2020 look increasingly imperiled. This weekend, a dismal turnout in a campaign rally held in the Trump stronghold of Oklahoma, the President’s first since the outbreak of Covid-19, led one commentator to pronounce that a “tipping point in Trump’s popularity” had been crossed.
Yet, when it comes to the courtroom, the actions of Trump and his subordinates in the executive branch suggest a far different picture: an administration emboldened to advance its own interests via expansive legal interpretation, and convinced of support among friends in high places in the judicial branch—an assumption hardly unreasonable given that Trump has made 199 federal judicial appointments to date, including 52 appeals court judges and two Supreme Court justices, the second-highest total ever by an American president at this point in his administration.
Increasingly bold courtroom stands in recent months are easy to spot. Having long sought the repeal of universal health care, the administration announced in May that it was taking the unusual step of refusing to defend the constitutionality of the 2010 Affordable Care Act in court. This month, administration lawyers engaged in a belated, seemingly ill-fated attempt to use the courts to block the release of a memoir full of damaging revelations by Trump’s former national security adviser. In February and again, last month, Attorney General William Barr personally intervened to request a more lenient criminal sentence for two Trump allies; one career prosecutor resigned in protest, calling such moves “egregious” and a “betrayal of the rule of law.” Last week, Barr attempted to coerce the resignation of a federal prosecutor investigating former Trump associates by announcing the latter’s “resignation” late on a Friday night. After the prosecutor retorted that he had “no intention” of leaving office, the attorney general was forced to ask the president to step in and officially fire him.
These are the actions of an administration that, while suddenly vulnerable in the polls, still counts on reliable allies in the judiciary. But there are signs that the Trump administration may have overplayed its hand.
Last week, the Supreme Court handed down two decisions that shocked the conservative administration. The first, Bostock v. Clayton County, held that federal anti-discrimination law prohibits a private employer from firing gay or transgender employees. Strikingly, two members of the Court’s reliable conservative majority defected to vote with the liberal wing, including Neil Gorsuch, a 2017 Trump appointee who authored the 6-3 opinion.
More narrowly reasoned—but with more resounding implications for the constitutional balance of powers—was Department of Homeland Security vs. Regents of the University of California, a 5-4 opinion that held that the Trump administration had acted in an “arbitrary and capricious” manner when it suddenly rescinded legal protection from deportation for children brought to the United States by illegal alien parents. The decision turned on a seemingly arid procedural question: whether the agency in charge of U.S. immigration enforcement had conducted its own internal review of the Obama-era policy before taking the drastic step of rescinding it. Yet, for what it revealed about the Court’s posture toward the legal arguments proffered by the Trump administration, the opinion was telling.
Almost exactly two years ago, the Court upheld a presidential order suspending the entry of aliens into the United States from a handful of mostly Muslim-majority nations. Plaintiffs alleged that the “travel ban” had been motivated by impermissible racial animus, citing a long litany of Islamophobic statements by Trump on the campaign trial. Writing for a 5-4 majority, Chief Justice John Roberts deemed Trump’s personal statements irrelevant to the Court’s review, rejecting plaintiffs’ “request for a searching inquiry into the persuasiveness of the President’s justifications.” So long as the Trump administration supplied a “facially legitimate and bona fide” reason for the ban, the Court would refrain from “look[ing] behind the exercise” of presidential power.
Last week, it was a very different Chief Justice Roberts who, considering the sudden termination of the Deferred Action for Childhood Arrivals (DACA) program, rejected the administration’s proffered rationales as “convenient litigating positions” adopted nine months after the federal agency had announced the program’s termination, and “after three different courts had identified flaws with the original explanation.” Although the Chief Justice again rejected the notion that discriminatory animus had motivated the change of policy, and refused to consider Trump’s own unflattering words about Latinos from the campaign trail, Roberts did allow that courts “may consider plaintiffs’ extrinsic evidence” in reviewing challenged government measures. Roberts’s opinion held that the administration had failed to adequately consider key issues, especially the ways in which it might mitigate the effects of DACA’s termination on beneficiaries. The decision does not prevent the administration from again trying to terminate the program, but given its emphasis on careful administrative reasoning, such a step may be difficult during the brief remainder of the presidential term.
Whatever these cases mean for the Supreme Court’s own separation of powers jurisprudence, it is worth pointing that, among the lower federal courts, an appetite for confrontation with the President is not exactly new. Though Trump has taken advantage of a compliant Congress to radically reshape the federal judiciary, his administration has also sustained “an extraordinary record of legal defeat” in the courts since Trump took office in January 2017. Whereas the U.S. government ordinarily prevails about 70% of the time in cases involving challenges to federal regulatory policy, as of May 2020, Trump’s win rate is a shocking 7%. The apparent explanation—as with Trump’s recent Supreme Court defeats—is a sheer failure to convincingly explain agency actions, which, observes one administrative law expert, “mak[es] it very easy for the courts to reject them because they’re not doing their homework.” Compound such inadequacies with an apparent proliferation of basic errors in litigation, as well as Trump’s audacious and often-unhelpful tweets and public comments (invoked in at least a dozen of the decisions), and the overall impression is one of unprofessionalism and extreme disregard for procedural norms—not, obviously, a posture likely to win friends in the legal profession.
In this light, Chief Justice Roberts’s apparent unmasking as a “bulwark against Trumpism” may not be such a surprise. Truth and probity in government appear to be major concerns of the Chief Justice. Again, in 2019, it was Roberts who, rejecting the Trump administration’s efforts to use the national census to enhance the political influence of white voters at minority voters’ expense, wrote that the justices are “not required to exhibit a naiveté from which ordinary citizens are free.”
Of course, to see in these recent decisions evidence that the Court, led by its institutionalist-at-heart Chief Justice, will beat a retreat from the steady drift to the right it has undertaken since Roberts’s installation in 2005 is completely unsupported by the evidence. With major decisions on abortion, religion in public schools, and the right to contraception set to be handed down (possibly within the week), the Supreme Court has every opportunity to continue to mold American law in a more conservative direction. Nonetheless, it may not be farfetched to suppose that the Court has slowly developed a new, more stringent standard of review of unilateral executive actions at a time when, with crises besetting the globe from a viral pandemic to an economic downturn to racial riots, a dearth of leadership is potentially so fatal. It may be that a kind of hydraulic balancing function is at work where, as dysfunctionality in the administration increases, the Court will take on a progressively larger role. This trend has already been observed in other systems.
The ultimate test of the Court’s position will come in Trump v. Mazars, a decision likely to be delivered before the Court adjourns for its summer recess in late June or early July. Trump’s lawyers have urged the Supreme Court to declare that Congress has no power to seek court enforcement of subpoenas for the production of the president’s financial records (also being sought in a separate state criminal investigation), a position necessarily implying that a sitting president would be almost entirely immune from sanctions whatever. So far, Trump has lost twice on this question at the district-court level and twice at the appeals-court level.
Last week, President Trump tweeted a bewildered question about the latest Supreme Court decision against him: “Do you get the impression the Supreme Court doesn’t like me?”
The President’s suspicions will be tested—yet again—in a matter of a few weeks.
Suggested citation: Andrea Scoseria Katz, The Increasingly Thankless Task of Judicial
Deference: A Conservative Court Struggles with Audacity and Incompetence in the
Trump Administration, Int’l J. Const. L. Blog, June 24, 2020, at: http://www.iconnectblog.com/2020/06/the-increasingly-thankless-task-of-judicial-deference-a-conservative-court-struggles-with-audacity-and-incompetence-in-the-trump-administration/
 Fred Barbash and Deanna Paul, “The real reason the Trump administration is constantly losing in court,” The Washington Post (Mar. 19, 2019).
 David Landau, Political Institutions and Judicial Role in Comparative Constitutional Law, 51 Harv. Int’l L.J. 319 (2010).