“That’s not how any of this works!”
Remember that line from the popular insurance ad, in which a confused senior citizen made a Facebook “wall” on an actual wall?
Well, the Supreme Court effectively said the same thing Monday, rebuffing the Trump administration’s petition for expedited review of its plan to end the Deferred Action for Childhood Arrivals policy.
DACA is currently shielding 700,000 “Dreamers” – undocumented people brought to the United States as children – from deportation. (There are estimated to be around 3.6 million Dreamers, but only 800,000 registered with DACA.) The Trump administration has announced plans to end DACA on March 4, but two courts have placed temporary injunctions barring them from doing so.
Following the normal process of judicial review, the Trump administration has appealed each of those decisions to the relevant courts of appeals. But it also asked the Supreme Court to leap-frog over that process and hear the case now.
The Court said no.
"It is assumed the court of appeals will act expeditiously to decide this case,” the Court said in its brief order denying the Trump administration’s request.
In other words, that’s not how any of this works. While the Court does rarely short-circuit the usual appeal process, it does so only in emergencies: last-minute death penalty appeals, for example, when the Court’s decision is literally a matter of life and death.
No such circumstances exist here. There’s no evidence that continuing DACA for another few months will constitute any actual danger to anyone. On the contrary, ending DACA would have irrevocable effects if it led to deportations of young adults who have lived in the United States for effectively their entire lives. That’s why two courts have enjoined the Trump policy while the lawsuits proceed.
As a result of the Supreme Court’s decision, DACA will remain in place while the two cases wind their way up to the Court, where they will inevitably land. The Dreamers have won a temporary reprieve. March 4 is no longer Judgment Day. Even if Congress fails to act, DACA will remain for a few more months.
Now, you might ask, why waste time and money litigating cases at two appeals courts when everyone knows this issue will have to be resolved by the Supreme Court?
Well, the rule of law, that’s why. The judicial system is structured the way it is for a reason. We have a tiered court system, an orderly process of appellate review, and a structure that has been in place for two centuries.
Besides, sometimes contentious issues are resolved during the appeals process – as may well be the case here, if Congress finally acts to make DACA the law, rather than just an administrative priority list, as it is now. It’s quite possible that denying the Trump request will save judicial resources, since Congress can easily make the whole question moot.
But really, this isn’t about judicial resources at all. It’s about Donald Trump’s personal contempt for the Ninth Circuit Court of Appeals, and his fundamental misunderstanding of the role of judges in a democracy.
In a series of unprecedented, outrageous, authoritarian tweets, Trump has blasted the Ninth Circuit for daring to disagree with him. Take one example:
Of course, that is wrong in several ways.
First, the Ninth Circuit is not reversed any more than other courts of appeals. According to research conducted by the Washington Post, sometimes its reverse rate is above average (in 2015-16, it was reversed 80% of the time, higher than the 67% average) and other times it is below average (in 2014-15, its rate was 60% and the average was 72%).
If all those rates seem high, remember that the Supreme Court only takes cases where there’s a high probability of reversal. As a percentage of total decisions, the Court reversed the Ninth Circuit only 0.1% of the time.
Second, all parties “forum shop” when filing cases. That’s why the Court’s biggest case this week, on public sector unions, came through the more conservative __ circuit. And indeed, based on various Big Data analyses, the Ninth Circuit is more liberal than most, though less liberal than others.
But most importantly, it is not normal, good, or democratic for a sitting U.S. president to call out an appellate court and describe the entire court system as “broken and unfair.” Back when presidents were true heads of state, their job was, in part, to uphold the constitution and the system the constitution put into place. There’s no evidence that the Ninth Circuit is doing anything other than what it is supposed to be doing: hearing cases and issuing reasoned decisions. The fact that sometimes Donald J. Trump loses does not make the system broken.
By now, most of us are inured to Trump’s infantile outbursts. The trouble is, Trump’s petulance is accompanied by actions, led by his administration and by a conservative legal counterculture paid for by a small group of extremist billionaires.
Already, a record number of judges – mostly hard-right conservatives – has been nominated, and almost all have been confirmed on a fast-track process by the same Senate that stalled President Obama’s nominees for months, or forever. Led by Leonard Leo at the Federalist Society and Don McGahn in the White House, the last twelve months has witnessed the most successful and comprehensive court-packing scheme in American history.
All presidents leave their mark on the federal judiciary, but this one has already scarred it beyond recognition – not with Republicans or ordinary conservatives, but with Trumpist extremists, right-wing bloggers, and documented bigots.
Moreover, Trump’s imprecations against the rule of law have trickled down to “mini-Trumps” around the country, one of whom just proposed impeaching half of the Pennsylvania Supreme Court because he didn’t like its decision in a gerrymandering case.
And Trump’s denigration of the rule of law extends to the most important legal battle he faces: the Mueller investigation into the Trump campaign’s ties to Russia. Each time Trump denies the legitimacy of courts, judges, lawyers, the Department of Justice, and the FBI, he undermines the American institutions that may soon become his adversaries.
And that’s what this DACA case was really about. This was about Trump hating the American justice system (and anything else that gets in his way) and refusing to believe that he can actually lose a fair fight.
The trouble is, each hammer-blow Trump delivers to the American rule of law weakens our country’s democratic institutions. As expected, the Supreme Court refused to sign onto this particular denigration of the federal judiciary.
But what happens when Trump reshapes that Court as well?