Opinion: Did Gorsuch subtweet Trump on the role of the courts?

Not content with politicizing a terrorist attack against one of America’s closest allies, the tweeter-in-chief is now making life difficult for the lawyers who may have to defend his revised executive order on immigration before the Supreme Court.

At 6:29 a.m. Monday, President Trump tweeted: “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C..” Eight minutes later, he added: “The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!”

These evidently unlawyered ejaculations followed a tweet over the weekend in which Trump linked the need for the “Travel Ban” – terminology his press secretary has foresworn – to Saturday’s terrorist attack in London.

“We need to be smart, vigilant and tough,” the president tweeted as reports of the violence were coming in. “We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!”

As Garrett Epps noted in the Atlantic, Trump had undermined the arguments of his own acting solicitor general, including the assertion that the revised order represents the president’s own considered judgment about the needs of national security and is not a Muslim ban or a ban of any kind. Epps added: “It is more dangerous to be Donald Trump’s friend than his enemy.”

More doubtful is the suggestion that by trying to pressure the federal courts, Trump has jeopardized their independence. The Brennan Center for Justice, a liberal legal think tank, sounded this alarm Monday, warning that Trump’s “troubling pattern of attacking judges and the courts for rulings he disagrees with . . . threatens our entire system of government.”

If anything, I suspect that Trump’s tweets have stiffened the spine of the judiciary, including members of the Supreme Court.

On Friday, Justice Neil Gorsuch, Trump’s own appointee, addressed an audience at Harvard and celebrated the fact that “the government can lose in its own courts and accept the judgment of those courts.” In the terminology of Trump’s favorite medium, Gorsuch may have been subtweeting the president.

That doesn’t necessarily mean Gorsuch will rule against Trump if the court takes up the issue of the executive order. But if he did, it wouldn’t be the first time a justice disappointed the president to whom he or she owed his position on the bench. Justice Elena Kagan, who was not only appointed by President Obama but served as his solicitor general, ruled against his administration on several occasions. (One of the silliest arguments of Democratic senators who opposed Gorsuch’s nomination was that he might not be independent of Trump.)

The fact that judges are inured to Trump’s tweets doesn’t exonerate him for attacking “so-called judges” or claiming, as he did in a tweet on Monday, that the courts are “slow and political.”

Presidential contempt for the courts can undermine public confidence in them. But Trump’s tweets about the courts arguably have brought more contempt on himself.

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