The expression “But Gorsuch” needs to be updated to “Et tu, Gorsuch?” after Donald Trump’s “first and most important accomplishment” as the White House has put it, sided with the four liberal Supreme Court justices in a decision this week. Adding insult to injury, Gorsuch was the deciding vote in a 5-4 ruling against Jeff Sessions and the Trump administration’s efforts to achieve one of its primary objectives: deporting immigrants who have committed crimes. And per The Washington Post, Trump was “incensed that Gorsuch had voted against the administration on an immigration case.”
Think about that for a moment. Gorsuch, a man Trump has repeatedly praised, even awkwardly in front of him at this year’s State of the Union, ruled against the Trump administration and allowed a man who had committed burglary twice to remain in the United States. Add to that, conservatives have frequently cited Gorsuch as the primary, if not sole, reason to still support Trump despite both his decidedly non-conservative views on certain issues and his bigotry such as defending white supremacists in Charlottesville last August as “fine people.” In fact, “But Gorsuch” became a meme for how those on the right continued to embrace Trump at all costs. This also holds true for some on the religious right who have called Gorsuch’s appointment a “bright star in a dark sky.”
Well, so much for all that. In the decision released Tuesday, Trump’s golden boy Gorsuch joined in the opinion written by liberal Justice Elena Kagan to strike down a provision of the Immigration and Naturalization Act that called for the deportation of any non-citizen, including legal immigrants like defendant James Dimaya, who was twice convicted of burglary under California state law. The four liberal justices, together with the conservative savior Gorsuch, ruled that the law was unconstitutionally vague because it didn’t adequately define what constituted a “crime of violence.” The result is Dimaya remains in the United States.
The five majority justices made a nuanced legal argument that relied on a prior decision authored by the late Justice Scalia. While this makes for great discussion in the hallowed halls of the Supreme Court and in law schools across the country, in the real world, Gorsuch’s decision has sparked outrage among the very people who had once lavishly praised him.
Headlines in conservative publications give you a sense of how irate they are. One read, “WHOA! Gorsuch just sided with liberal justices in an immigration ruling against Trump!” Others blared, “5-4: Gorsuch Sides With Court’s Liberals In, Er, Deportation Case” and “Gorsuch Casts Deciding Vote on Immigration Case—It May Surprise You.”
Breitbart.com ran an interview of a former immigration judge blasting the ruling, warning Americans that “very dangerous aliens” are not going to be deported because of this decision and also published another piece claiming that “Migrants’ lawyers celebrated the decision.” And over on the Drudge Report, comments to the decision included one reader asking: “I wonder if Pres Trump is going to start attacking Associate Justice Gorsuch via Twitter?”
Well, Trump did actually take to Twitter Tuesday to vent over this decision with two tweets that combined to read: “Today’s Court decision means that Congress must close loopholes that block the removal of dangerous criminal aliens, including aggravated felons. This is a public safety crisis that can only be fixed by.... Congress—House and Senate must quickly pass a legislative fix to ensure violent criminal aliens can be removed from our society. Keep America Safe!”
And while Trump vented privately about Gorsuch, he obviously can’t go after Gorsuch by name or with a derogatory nickname like #NothingNeal. That would’ve brought even more attention to the fact that the person Trump touted as “a man of great and unquestioned integrity” and whom he praised at last April’s NRA national convention as “really something very special" had cast the deciding vote against his administration to stop the deportation of an immigrant who had committed two crimes.
But make no bones about it, it’s clear that there was no joy in the Trump administration. Trump’s Department of Homeland Security put out a sharply worded statement slamming the decision, invoking very Trumpian themes: “Today’s ruling significantly undermines DHS’s efforts to remove aliens convicted of certain violent crimes… By preventing the federal government from removing known criminal aliens, it allows our nation to be a safe haven for criminals and makes us more vulnerable as a result.”
Could this be the beginning of Trump’s worst nightmare about Gorsuch coming true? Trump last year reportedly shared with Republican congressional leaders his concerns about his nominee to the high court: "He's probably going to end up being a liberal like the rest of them.” Adding, "You never know with these guys.”
True, there’s a history of Supreme Court Justices moving ideologically once on the bench. The most famous recent example was of former Justice David Souter who had been nominated by President George H.W. Bush in 1990 but ending up shocking the right by up consistently voting with the liberal members of the Court.
That’s not likely with Gorsuch. But one or two more decisions like Gorsuch made in Sessions v. Dimaya and there goes Trump’s “first and most important accomplishment” down the drain. And it also puts pressure on conservatives who claim they were still on board with Trump solely because of “But Gorsuch” to come up with a new excuse for why they are supporting a man who has espoused non-conservative views and trafficked in bigotry, racism and sexism to win the White House.