Supreme Court tires of Trump


More than 120 years ago, in the words of his fictional bartender, Mr. Dooley, the humorist Finley Peter Dunne created one of the most quoted observations about the nation’s highest court: “The Supreme Court follows the election returns.”

Dooley had it half right: Sometimes, the court anticipates them.

That was the lesson of this week’s dramatic and surprising decisions from the high court: Across Washington, senior officials have started to anticipate the end of the Trump presidency and have adjusted themselves accordingly.

And in a self-reinforcing cycle, their moves influence politics, making President Trump‘s anticipated defeat more likely. Power begets power; weakness begets weakness. The skein unravels.

Roberts rules

The arc of the Supreme Court’s reactions to Trump shows a steady decline in the majority’s willingness to defer to the president and to put up with the administration’s habitual flouting of legal norms. The shift can be read in three decisions handed down in successive Junes by Chief Justice John G. Roberts Jr.

The first, in June 2018, concerned Trump’s ban on travel to the U.S. from several mostly Muslim countries.


The travel ban had been one of Trump’s earliest actions in office, and by the time it got to the Supreme Court, it had been significantly revised, loosened in some regards and worked over by lawyers to make it more acceptable. Still, lawyers for several states, including Hawaii and California, told the court that Trump had gone too far, violating procedural protections for would-be immigrants and acting out of anti-Muslim prejudice.

Roberts rejected all those claims. His decision for a 5-4 majority repeatedly emphasized the need for the court to show deference to the executive branch, especially on national security, and he turned aside the suggestion that the court should, in effect, peek behind the curtain and examine the president’s motives.

“Whether the president’s chosen method of addressing perceived risks is justified from a policy perspective is irrelevant,” he wrote. “We cannot substitute our own assessment for the Executive’s predictive judgments on such matters.”

Rejecting the idea that Trump’s anti-Muslim remarks during his campaign made his subsequent decisions suspect, he decried what he saw as an effort to unfairly hold Trump to a standard not applied to his predecessors.

“The entry suspension is an act that is well within executive authority and could have been taken by any other president,” he wrote. “The only question is evaluating the actions of this particular president in promulgating an otherwise valid proclamation.”

One year later, when the time came to rule on Trump’s effort to add a citizenship question to the Census, Roberts’ willingness to defer to executive judgment had clearly begun to wear thin. So had his tolerance for the administration’s efforts at sleight of hand.


But only to a point.

Roberts’ decision in that case, again for a 5-4 majority, rejected the argument by lawyers for New York and other Democratic states that the decision to put the citizenship question onto the Census was “arbitrary and capricious” — the standard set by the Administrative Procedure Act, the basic law governing how federal agencies do their work.

Secretary of Commerce Wilbur Ross, whose agency oversees the Census Bureau, “was required to consider the evidence and give reasons for his chosen course of action. He did so. It is not for us to ask whether his decision was the best one possible or even whether it was better than the alternatives,” he wrote. He chided the court’s four liberals, who wrote a separate opinion, for “second-guessing.”

But, he said, while the executive branch did have broad discretion, it couldn’t simply make things up.

“The sole stated reason” that the administration gave for adding the question to the Census “seems to have been contrived,” he wrote, in ruling against Trump.

The court “cannot ignore the disconnect between the decision made and the explanation given,” he wrote, adding that the justices were “not required to exhibit ... naiveté.”

His closing words pointed to future cases: “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”


Administration officials could have taken that as a plea — or a warning. Instead, Trump denounced Roberts, and his administration proceeded on course.

Which brings us to this week and Thursday’s decision that blocked Trump from stripping immigration protection from hundreds of thousands of young people who came to this country illegally as children.

This time, Roberts took the step he hadn’t taken in the Census case. He joined the four liberals and said that the administration’s move met the “arbitrary and capricious” standard for being overturned.

The key fault he focused on was precisely the one that lay at the heart of the two previous cases: The people challenging the administration claimed that officials had violated the procedural rules because they were being dishonest about what they were up to. This time, Roberts was prepared to agree.

As in the travel ban and Census cases, administration officials had brushed aside normal procedures in their effort to rescind President Obama‘s Deferred Action for Childhood Arrivals program.

As was widely reported at the time, they acted the way they did because Trump needed political cover. The president wanted to end DACA to appeal to the anti-immigrant fervor that animates many of his core supporters. But he also wanted to portray himself as sympathetic to the young immigrants, the Dreamers, who benefit from the program.

To allow Trump to have it both ways, officials contrived to present the move against DACA as something Trump had no choice in. Then-Atty. Gen. Jeff Sessions, not yet totally in Trump’s doghouse, proclaimed that DACA had been enacted illegally by Obama. The then-Acting Secretary of Homeland Security, Elaine Duke, followed with a memo saying that based on Sessions’ declaration, she had no alternative but to end the program.


That, Roberts said, was simply untrue. Even if Sessions was correct — and notably only three justices said they agreed that DACA was illegal — the administration had several options, he wrote. Officials could have ended only the part of the program to which Sessions had clearly objected. They could have wound it down more slowly, giving Dreamers time to adjust. They could have tried to modify the program.

He quoted two of the court’s most famous former members, Justices Oliver Wendell Holmes and Hugo Black, that in dealings between the government and individuals, both sides “must turn square corners.”

The conclusion he drew seemed to sum up a growing exasperation with the administration’s refusal to follow the rules.

“Particularly when so much is at stake,” he wrote, “this is not the case for cutting corners.”

The political impact

The DACA ruling capped a week of losses for the administration, as David Savage wrote. The justices refused to consider a raft of cases that challenged state and local gun control rules. They turned aside the administration’s challenge to California’s immigrant sanctuary law.

And, most notably, in a 6-3 decision, they held that federal civil rights law bans discrimination against gays and transgender individuals in employment, a position the administration had argued against and that many social conservatives in Trump’s coalition see as a dire threat.


All those decisions undermined one of Trump’s major arguments for his reelection — that conservatives “have no choice” but to vote for him because his Supreme Court nominees will rule in their favor on key issues.

He responded with characteristic choler and self-pity.

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives,” he wrote on Twitter, then argued, in effect, that if reelected, he could do better.

“We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”

“Do you get the impression that the Supreme Court doesn’t like me?” he wrote in another Twitter message.

To what extent the rulings will dampen social conservatives’ enthusiasm to show up and vote for Trump remains to be seen. Four months from now, a Supreme Court ruling in June may not be top of mind for many voters.

Trump could try again to rescind DACA, as Molly O’Toole wrote, although doing so before the election could cause more political problems for him. On both that issue and job discrimination against gay Americans, large majorities of the public side against Trump and his conservative allies.


Moreover, the court could still issue other decisions that conservatives will like more: They have a major abortion case remaining, for example, a dispute over Louisiana’s restrictions on abortion clinics that could give the court’s conservatives an opportunity to begin to step away from Roe v. Wade. A ruling on that case could come as early as Monday.

For now, however, as Savage wrote, many on the right are angry at Justice Neil M. Gorsuch, the author of the court’s ruling in the gay rights case, and at Roberts, who has been a target of right-wing ire ever since he ruled in favor of the Affordable Care Act in 2012.

That just adds to the problems Trump already faces as he continues to sink further behind Joe Biden in national and state polls.

The most recent Fox News poll, released Thursday, illustrates the problem. The poll found Trump trailing Biden nationally 50%-38%. A month ago, Fox had found Biden ahead by 8 percentage points.

The poll, taken Saturday through Tuesday, found troubling signs for Trump among some key groups: He led Biden 66%-25% among white evangelical Christians. But that’s a group he won with 80% support in 2016, according to exit polls. Similarly, conservatives supported him 67%-22%, significantly down from the support he had from that group in his race against Hillary Clinton.

Trump needs those numbers to improve if he’s to have a chance of a comeback against Biden. This week’s high court rulings aren’t fatal to that hope, but they definitely don’t help.

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Bolton’s book

As if Trump didn’t have enough problems, the next few months will feature several books dishing on the president and his family. Trump’s niece plans a book about the family’s dysfunction, for example.

But the volume getting White House attention this week is John Bolton‘s account of his tenure as Trump’s National Security advisor. Eli Stokols distilled five things you should know about Bolton’s book for those who don’t want to wade through more than 500 pages of sometimes turgid prose.

The book contains harsh criticism of Trump as “unfit” for office and willing to sacrifice national goals for his political and family interests. The administration also claims that it includes classified material and has gone to court to seek a restraining order blocking publication, as Del Wilber wrote. Officials have also mulled possible criminal prosecution.

A court order blocking publication is highly unlikely, and Trump’s efforts to block the book have so far only drawn more attention to it. Meantime, as Trump calls Bolton and other former top aides “dopes,” he inevitably causes voters to wonder why he hired them in the first place, Stokols, Noah Bierman and Chris Megerian wrote.

Biden’s weakness

As Michael Finnegan wrote, Biden launched a new ad campaign this week that took advantage of soaring fundraising to go on offense in states that Trump won in 2016. By contrast, Trump’s campaign is entirely on defense at this point.

There’s no question that Biden has enjoyed a highly successful month. He’s managed, so far, to keep the spotlight on Trump, making the election a referendum on the incumbent, which the president is losing.


But as Evan Halper and Janet Hook wrote, the weakness in that strategy, which concerns many Democrats, is that a lot of voters are left without much of a sense of who Biden is. The voters are more anti-Trump than pro-Biden, polls show.

“The biggest challenge is filling in Joe Biden,” said Robert Gibbs, Obama’s former press secretary. “People know he was the vice president, but not a lot else.”

Police reform faces tough road in Congress

Republicans unveiled their police reform bill this week as Democrats advanced theirs in the House. As Sarah Wire wrote, the two bills take very different approaches. The Democrats, for example, would ban police use of chokeholds nationwide. The Republicans would give local police departments incentives to stop using chokeholds, but would not enact a ban.

It remains unclear whether Congress can come to a compromise or whether both sides will wait to see who wins the next election.

Across the country, mayors and police chiefs have taken symbolic steps to show support for Black Lives Matter. But activists still see ‘waffling’ and want more concrete action, Megerian and Elliot Wailoo wrote.

And Wailoo, O’Toole and Jie Jenny Zou examined a controversial Minnesota police training company which critics say provides police training that can be used to justify misconduct. The company is set to provide training for the LAPD later this year.


Keeping the money flowing

Government loans to small business have helped save millions of jobs, but Congress lacks a plan to keep the money flowing after the current program runs out at the end of July, Don Lee wrote. Many economists fear that if the support stops, economic recovery will crash.

And Noam Levey looked at one of the potential lasting impact of the coronavirus: It could forever change how you go to the doctor.

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