The Telegraph – It’s hard to think of a worse figurehead for the resistance to the president’s agenda.
It has been some time since US President Donald Trump has asked his supporters “are you tired of winning yet?”, but in recent weeks the president has piled up so many victories at the Supreme Court that keeping up with them all could well prove an exhausting task.
The judiciary has not always been so amenable to Trump. In the months after his return to office in January, dozens of Democrat-appointed judges, and some Republican-appointed ones, too, blocked or stayed numerous policies and directives from the executive branch, obstructing much of Trump’s agenda and the electoral mandate behind it. Almost all of those rulings, however, were issued by lower-level federal district courts or mid-level circuit courts. At the Supreme Court – America’s final court of appeal – matters have been rather different.
Despite much frustration over adverse lower court rulings, Trump’s Justice Department has deftly appealed many of them, frequently via the Supreme Court’s emergency petition procedure. Emergency rulings are generally handed down without a written justification explaining the Court’s legal reasoning and without a statement of how its nine justices voted, though the justices are free to issue such statements and publicly declare how they voted.
This gambit of appealing to the Supreme Court on an emergency basis has paid off. In rapid succession, the court has ruled that Trump can legally deport illegal immigrants en masse, including to places other than their countries of origin. It chose not to immediately quash his inauguration day executive order ending birthright citizenship – a longstanding policy that automatically confers citizenship on all children born on US soil to foreign parents.
The Court has temporarily allowed Trump’s Defence Department to ban transgendered individuals from military service. It has permitted the Department of Government Efficiency (Doge) to examine private Social Security records and avoid scrutiny under the Freedom of Information Act. It has upheld Trump’s dismissal of appointed officials from independent government boards.
Last week, a hotly contested emergency ruling allowed the president to sack large numbers of federal government employees, whose jobs had been temporarily saved by lower-level court injunctions. Perhaps most significantly, the Supreme Court has limited the ability of lower-level federal courts to issue universal injunctions, a much-needed step towards stopping relatively junior activist judges from assuming the power to effectively dictate national policy.
Even in cases that continue to be adjudicated in the federal court system, which can take years to conclude, an emergency ruling’s immediate effect can often render continuing litigation moot. Illegal immigrants who are deported to distant countries are unlikely to return, whether or not they eventually prevail in the US legal system. Sacked federal workers might, even if successful in litigation, find it hard to go back to radically altered workplaces in which their positions might well have been eliminated. Dismissed federal board appointees who prevail in court will almost certainly have been replaced by new officials by the time they theoretically win, leaving them with little more than a moral victory.
Even so, many Democrats are still looking to the Supreme Court for salvation. Divided, demoralised, and unpopular, they seem to believe that they have found an effective leader of the resistance in the one justice who has proved willing to oppose practically everything the president stands for.
Justice Ketanji Brown Jackson was nominated by Joe Biden to fulfil a cynical campaign promise to appoint a black woman to the Supreme Court. The former president made that pledge reportedly because he required the support of South Carolina kingmaker Rep Jim Clyburn to win the decisive South Carolina primary in his 2020 quest for the Democratic presidential nomination. An early sign that she was a poor choice came during her Senate confirmation hearings. She refused to provide a definition of the word “woman”, despite Biden being quite open that she had been chosen in part because of her own sex.
Although Jackson has since reliably turned up among the dissenting faction in many of the recent pro-Trump Supreme Court rulings, even her own judicial colleagues have been unable to hide their disdain for some of her arguments. In the case that reined in the universal applicability of lower federal court decisions, Justice Amy Coney Barrett, writing for the majority of the Court, said she found Jackson’s arguments “extreme” and “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself”. In the case evaluating whether Trump could dismiss federal employees, in which Jackson cast the only dissenting vote, her Democrat-appointed counterpart Sonia Sotomayor dismissed her argument in short order.
Even Jackson doesn’t seem to claim any particular interest in trenchant legal analysis. “I just feel that I have a wonderful opportunity to tell people in my opinions how I feel about the issues. And that’s what I try to do”, she bizarrely told ABC News in a recent interview. If Democrats “feel” she can lead any form of opposition, they would do well to remember that their last presidential candidate largely based her campaign on “joy” – and lost.