As Trump boasted in 2018, “The Supreme Court is one of the main reasons I got elected President.” During the 2016 presidential contest, he made a major plank of the potential opportunity to fill the vacancy caused by the death of Justice Antonin Scalia.
During a news conference in India on Tuesday, Trump labeled Sotomayor’s dissenting comments in a recent immigration case, which the Trump administration had won, as “so inappropriate,” and earlier, as he denounced both Sotomayor and Ginsburg on Twitter, referred to Ginsburg’s 2016 remark in a CNN interview that he was a “faker.”
The federal bench has been a flashpoint for Trump, who suggests on Twitter and elsewhere that he believes his judicial appointees will side with him, while Democratically appointed judges will automatically do the opposite. He touts his efforts to remake the judiciary. In the first three years of his term, he had records for swiftly placing judges in prestigious appeals court positions.
This has mattered as the law in America has shifted to the right. Pending cases will further test the Trump effect, as the justices are set to resolve in upcoming months disputes over abortion rights, protections for LGBTQ workers and gun regulation, as well as, more personally to Trump, cases involving subpoenas for his tax returns and other financial documents.
Trump likely knows that, overall, his interests are prevailing at this Supreme Court. The 2018 appointment of Kavanaugh, following the 2017 appointment of Neil Gorsuch, solidified the conservative majority on the nine-member bench.
Sotomayor often finds herself on the losing side of cases. The recent opinion that riled Trump, involving a new financial test for green-card applicants that disfavors low-income immigrations, came in dissent to a 5-4 order permitting the Trump policy to take effect.
Sotomayor emphasized a point that is relevant amid the new Trump criticism: The Supreme Court has been siding with the Trump administration to prevent lower court judges from blocking new policies before their validity has been tested.
“It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it,” Sotomayor wrote in the dispute over a Trump administration regulation that would make it more difficult for people who use public benefits, even for modest periods and even if Medicaid, housing and other non-cash assistance, from obtaining green cards.
Sotomayor, the court’s first Latina justice, also pointedly observed that the conservative majority’s pattern “has benefited one litigant over all others.” And she added that when the administration wins, it often swiftly returns. “[T]he Government wants more.”
So what does Trump want?
He declares Sotomayor and Ginsburg should recuse themselves from cases involving his administration, because of their remarks.
Under federal ethics law, judges are supposed to recuse themselves if their impartiality might reasonably be questioned, but the justices are their own arbiters of that standard. At the Supreme Court, recusals rarely are sought and rarely occur.
Despite Trump’s harsh words for Ginsburg in 2016 (“Her mind is shot — resign!), his administration has never asked that she sit out a Trump administration case.
Trump administration lawyers may have believed they lacked sufficient grounds or that such a recusal request was unnecessary.
When asked at a news conference to clarify his Twitter remarks regarding Sotomayor, Trump said, “Her statement was so inappropriate when you’re a justice on the Supreme Court. It’s almost what she’s trying to do is take the people that do feel a different way and get them to vote the way that she would like them to vote.”
Based on his past declarations of the Supreme Court as an election-year advantage, he is likely to continue running against liberal justices. And if he wins in November, he would have the chance to create a court even more to his liking.