The justices of the U.S. Supreme Court gather for an official group portrait to include new Associate Justice Neil Gorsuch, top row, far right, Thursday. June 1, 2017, at the Supreme Court Building in Washington. Seated, front row, from left are, Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice of the United States John Roberts, Associate Justice Clarence Thomas, and Associate Justice Stephen Breyer. Back row, standing, from left are, Associate Justice Elena Kagan, Associate Justice Samuel Alito Jr., Associate Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch. (AP Photo/J. Scott Applewhite)
But what about the retirement’s effects on the future of a possible litigant before the court: President Trump himself?
Several possible constitutional crises are brewing over Robert Mueller’s investigation into Russian interference, collusion and obstruction of justice, some of which – such as the president’s power to pardon himself – could raise legal questions that only the Supreme Court can answer.
So with Kennedy’s retirement, the question becomes, what will President Trump expect of his appointee once he’s the one before the Court?
One good turn…
President Trump seems to operate under the quid pro quo principle: I do for you and then you do for me. He may thus view favorable votes by his Supreme Court nominees in any future dispute with Mueller as another perk of his power to nominate them.
Trump certainly views protecting the president as part of his attorney general’s job description. He has repeatedly expressed anger at Attorney General Jeff Sessions’ decision to recuse himself in the Russia investigation, saying that he expected Sessions to protect him.
There’s reason to think Trump views judicial appointments the same way.
As a candidate, Trump said that a Mexican-American judge ruled againsthim in a lawsuit because he was planning to build a wall on the Mexican border. His reaction demonstrated a belief that judges often rule on the basis of bias.
Indeed, it seems the only point at which Judge Neil Gorsuch’s confirmation to the Supreme Court was at risk was when he criticized President Trump’s statements about the federal judiciary in a meeting with a senator. When Trump got wind of the critique, he was apparently tempted to pull the nomination altogether out of fears Gorsuch would prove himself disloyal, though he declined to do so.
So the president won’t likely be a proponent of judicial independence. But what about the nominee? How can senators and the American public learn if he or she will put the law above loyalty to the president?
How to find independence
One place you shouldn’t look for clues about a nominee’s judicial independence are confirmation hearings. They are, almost every serious person agrees, a joke.
Apparently, being a Supreme Court Justice is too good a job for nominees to introduce even a modicum of risk to their chances. That means the nominees don’t say anything whatsoever about what they really think.
For example, 15 years before her own nomination to the court, Justice Elena Kagan argued in a law review article that confirmation hearings were a “farce.” She wrote that “it is an embarrassment that senators do not insist” that a nominee “disclose their views on important legal issues.”
During her own Senate hearings, when Sen. Herb Kohl – a Democrat – offered Kagan the chance to disclose her own views, she demurred, declining to answer the very questions she had said should be put before nominees.
In response to this kabuki dance, Sen. Kohl – a member of the same party as the nominating administration – laughed. He muttered an incredulous “My, oh my,” and moved on to antitrust-related questions that didn’t earn any real answers either. Despite Kagan’s previously stated views, once she was a Supreme Court nominee – and had the chance to choose substance over farce – she took farce. Other recent nomination hearings, including Justice Samuel Alito’s and Justice Gorsuch’s, were similarly substance-free.
So you should feel free to ignore questions and answers during the confirmation process about whether the nominee will be independent regarding any Trump-related issues that might come to the court.
This question — whether a nominee will be loyal to the president instead of the Constitution — is always asked. Only a nominee who didn’t want the job would say, “Well, I wouldn’t have the job without the president’s nomination. So of course I’m going to consider returning the gift when I get the chance.”
The law is their master
A more fruitful place to look is history. And the last time a president was fighting for his job in the Supreme Court, the justices he appointed chose loyalty to the law over loyalty to their nominator.
In 1974, President Nixon’s lawyers were in the Supreme Court arguingthat tape recordings in Nixon’s office relating to the Watergate scandal were protected by executive privilege.
If Nixon had reason to bet on winning, it was because he had appointed four of the nine justices his counsel was arguing to — Justices Warren Burger, Harry Blackmun, Lewis Powell and William Rehnquist. In Nixon’s view, he had reason to be confident about his chances. As late as 1973, Nixon was referring to Burger, Blackmun and Powell in a discussion with Burger as “my guys,” calling them “great” and hoping to get yet “another one” on the court after Rehnquist. More disturbingly, they also discussed other cases then-pending before the court.
Rehnquist recused himself because he had worked in the Nixon Justice Department just before being confirmed. However, the other three justices voted unanimously, along with their colleagues, just 16 days after oral argument, holding that Nixon’s tapes were not constitutionally protected. The court found that even though executive privilege was important, allowing Nixon to invoke it to protect his recordings would “cut deeply into the guarantee of due process of law” that it was the court’s “basic function” to protect.
Justice Gorsuch, Trump’s first appointee to the court, has obviously not yet had the opportunity to rule on a claim directly brought by his nominating president, as did Justices Powell or Blackmun or Chief Justice Burger. So we can’t know for sure how he would react in a similar case. At this early date we don’t even know who Gorsuch’s new colleague and fellow Trump nominee will be.
And because justices’ votes are more ideologically reliable in contested cases now, the Supreme Court is a much more political place than it was in the 1970s.
But a political Supreme Court is not necessarily one that lacks independence. It would be wrong to assume that justices in general, or President Trump’s justices in particular, will eventually rule in his favor if the issue arises.
The Supreme Court has shown in the past that it is better than that. And if the current court winds up being worse, we will all be the worse for it.
Enrique Armijo is an Associate Professor of Law and Associate Dean of Academic Affairs, Elon University