Wednesday, November 28, 2018

Litman: 'Roberts has too much integrity to permit Trump’s imbecility to affect his legal judgment'

Harry Litman, a former U.S. attorney and deputy assistant attorney general wrote for the USA Today that many presidents, beside Donald Trump,  have taken issue with judicial decisions on the merits. Most famously, President Abraham Lincoln excoriated Chief Justice Roger Taney’s scandalous analysis in the Dred Scott case. Andrew JacksonDwight Eisenhower and Barack Obama, among others, also have disagreed with the court.
Trump’s harangue differed from all of these in its scorn and sheer demagoguery. He made no effort — if he were even capable of doing so — to challenge the court’s legal reasoning. His Willie-Horton style argument was rather that the court’s application of the law was making the country less safe. 
The only even remote analogue to Trump’s assault on the independent judiciary was Franklin D. Roosevelt's 1937 court-packing plan to enlarge the court and add justices sympathetic to his policies. FDR offered arguments on the merits, but he also played a bit dirty, telling the country in a fireside chat that the courts “have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.”
It was a mistake that cost Roosevelt. The court-packing plan failed to win public support, and it retarded his efforts to enact the ambitious series of laws that brought the country out of the Great Depression.
If history is any guide, Trump’s attacks will backfire and hurt him politically.  Unfortunately, as has so often seemed the case over the past two years, history is not any guide. Trump's sole political lookout is his roughly 43 percent base. From that standpoint, the contempt of the majority is a political plus stoking the same fires that got him elected. And his nose-thumbing at legal and cultural elites — and they don’t come more elite than the chief justice of the United States — similarly tends to delight the only voters he cares about.
Moreover, Trump needn’t worry that Roberts will continue to engage with him. Roberts would never stoop to carrying out a personal battle with the president, which would be bad for public confidence in the court and demeaning to him personally.
But hasn’t Trump made it more likely that the court will rule against him if some landmark case involving his presidency and even his liberty comes before it? In a word, no. Roberts has too much integrity to permit Trump’s imbecility to affect his legal judgment.
On the other hand, that same integrity bodes ill for Trump if his fortunes are one day put in the court’s hands — for example in a legal battle over a subpoena for the president’s testimony. The court is likely to bring Trump to heel (and, I would predict, in an opinion authored by Roberts and joined by Justice Brett Kavanaugh).
That is not because of its personal distaste for this president, but because Trump’s general claim to be above the law is constitutionally offensive and untenable. Should the court one day make that clear, its mandate will prove the ultimate test of Trump’s contempt for the rule of law.
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