The Volokh Conspiracy
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Trump Goes Postal On Gorsuch, Kavanaugh, and Barrett
What did the Justices tell Trump during their interviews to make the President think otherwise?
Last night, I wrote a post titled, "Chief Justice Roberts Goes Postal on Trump's USPS Rule." In candor, I was waiting for the other shoe to drop, and for Trump to go postal on SCOTUS. It came this morning. The Truth Social entry is long:
Republicans just got another bad decision from the United States Supreme Court, one that the Court System took forever to give, and then blamed it, in part, on no time left to implement a solution to our totally CORRUPT and out of control Mail-In voting "disaster," which is a laughing stock all over the World, and where we are the only country that has to endure such a Nation Destroying SCAM. Justices Alito and Thomas, legends both, strongly disagreed with this horrible, highly political, ruling. It is a big loss for Republicans, and America itself, and makes cheating by the Radical Left "Dumocrats," on Mail-In Ballots, a much easier thing to do - And now they have an open field to do so! The Supreme Court has really let our Country down! Certain Justices are petrified of these crazed and depraved Democrats, and are totally unable to show the courage necessary to save our America. Their horrible decision on Tariffs will be costing the U.S.A., for many years to come, Trillions and Trillions of Dollars. They didn't even state, "money paid does not have to be paid back," much to the benefit of entities that truly hate our Country, and have been RIPPING IT OFF FOR YEARS, unnecessarily costing us, immediately, Billions of Dollars. Likewise, the Supreme Court's Decision on Birthright Citizenship is a complete and total disaster for America, and has already led to massive corruption with respect to "citizenship" in our Country. The damage done to America is incalculable, and they know this, just as everyone else does - It is an irreparable and unrecoverable harm! The Court's inability and unwillingness to do the right thing for our Country will go down, in a very negative way, in the annals of History. This Supreme Court is bullied and cajoled by the Radical Left into making decisions that have set America back at least a hundred years. These are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of their original selves, a Court that is costing the United States Trillions of Dollars with shockingly bad rulings that are of such magnitude that it won't be easily possible for our Country to recover or heal. It is a Court that will go down as having rendered some of the most destructive, hurtful, and damaging decisions in our Country's history. It is not easy for me to write this criticism of the United States Supreme Court - it will likely cost me dearly for years to come - but I feel it my obligation and duty, as President, to do so for the America we love! Thank you for your attention to this very important matter. God bless the U.S.A. President DONALD J. TRUMP
Has there ever been a President more disappointed in the Justices he appointed? We can rule out all Democratic Presidents, as their justices (like the Postal Service) always delivery. I don't recall that George W. Bush has ever said a negative word about Chief Justice Roberts. George H.W. Bush publicly praised Justice Thomas, even as he likely privately though him too conservative. President Reagan was not active long enough to see the sorts of decisions that Justices O'Connor and Kennedy would render. President Nixon lost the votes of three of his appointees in the Watergate Tapes case, but he held back any public criticism. I think you have to go back to President Eisenhower, who blasted Chief Justice Warren, though he was surprisingly quiet about the far more impactful Justice Brennan.
Trump's posting has a few important kernels of truth.
First, Trump is right that the courts (aided and abetted by the Supreme Court) let this case drag on for months, such that when the merits finally went to the Court, it was almost certainly impossible to change the rules at the last minute. The Court can't give Justice Jackson a month to write a pointless dissent and then claim that Trump waited too long. Of course, the Postal Service portal still do not exist, so the policy could never go into effect. But that is on the government, not the Court.
Second, I will repeat a point I've made before. President Trump has no interest in Justices Thomas or Alito retiring. They're the only members who support him in tough cases! Trump's time horizon ends on January 20, 2029. What happens after that point is someone else's problem.
Third, Trump writes:
Certain Justices are petrified of these crazed and depraved Democrats, and are totally unable to show the courage necessary to save our America. . . . This Supreme Court is bullied and cajoled by the Radical Left into making decisions that have set America back at least a hundred years.
The single most important attribute for any Supreme Court nominee is a proven record of showing courage from legal elites. No, the "dogma" myth is not evidence of such courage. My criticism would be limited if the Court had simply ruled the timing, the policy cannot be put into place, without saying a word about the merits. But Chief Justice Roberts, along with Justices Gorsuch and Kagan, wanted to signal to the public (that is, elites) to not worry, as this policy will never go into effect. All the usual rules about standing and judicial minimalism were set aside.
Fourth, Trump charges that the Justices told him something different during their interviews:
These are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of their original selves…
It is often said that a Justice is never more conservative than on the day he was nominated. But maybe the more accurate answer is on the day he interviews with the President. As soon as the President makes the selection, the Justice can disregard whatever it is he told the President. The same goes for whatever a Justice told Senators.
Fifth, Trump acknowledges that there is a cost to his post:
It is a Court that will go down as having rendered some of the most destructive, hurtful, and damaging decisions in our Country's history. It is not easy for me to write this criticism of the United States Supreme Court - it will likely cost me dearly for years to come - but I feel it my obligation and duty, as President, to do so for the America we love!
Trump is fully aware that criticizing the Justices will likely result in some form of retaliation. I'm sure his lawyers tell him this. But he feels compelled to do it, knowing the costs.
Perhaps Trump should just go along with the Democrats and agree to expand the Court to 13 members, right now.
