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Chief Justice John Roberts,whose relationship with Trump has been bumpy, nonetheless shepherded the opinion in the case that mattered most to him. Roberts wrote the July 1 decision that gave Trump substantial immunity from criminal prosecution and ensured he would not face trial for charges of election subversion from the 2020 presidential contest.
Overall, the reconstituted Supreme Court has diminished norms and transformed the law, beginning with the court’s upholding of Trump’s travel ban in 2018, then its reversal of Roe v. Wade and abortion rights in 2022, and finally its groundbreaking move to shield the president from prosecution.
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In January 2017, the justices numbered only eight. Justice Antonin Scalia had died on February 13, 2016, and Senate Republicans had blocked any consideration of then-Judge Merrick Garland, President Barack Obama’s choice to succeed Scalia, making the vacancy a top issue in that presidential campaign.
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Inside the court, according to law clerks from that time, a receptiveness to some compromise across ideological lines remained. In the justices’ initial look at the travel ban order, theyallowed it to take partial effect, against “foreign nationals who lack any bona fide relationship with a person or entity in the United States” but blocked the ban for people with the requisite relationships.
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Law clerks recalled an atmosphere of wary cooperation. The clerks were still having lunch together and enjoying weekly “happy hours” without the impending ideological rancor.
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“There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protect,” Kennedywrote.
“An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
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Gorsuch and Kavanaugh have been Trump’s most reliable allies among the three. That was seen earlier this month when they dissented (with Thomas and Alito) as the majority rejected Trump’s plea to block his sentencing in the Manhattan hush-money case.
Last May, a New York jury found Trump guilty of 34 counts of falsifying business records related to “hush money” paid during the 2016 election to adult film actress Stormy Daniels, with whom he allegedly had an affair. (Trump has denied the affair.)
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During Trump’s first term, Justice Thomas appeared to have the tightest relationship with him. Trump invited Thomas and his wife, Ginni,to a private lunch in 2018. Ginni Thomas, a longtime conservative activist, separately attended Trump’s White House celebration when he was acquitted in February 2020 by the Senate after his first House impeachment.
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“Help This Great President stand firm, Mark!!!” she wrote on November 10, 2020. “You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.”
Earlier this January, Trump’s relationship with Alito was in the spotlight when it became known that he took a call from the president-elect about a former law clerk seeking a position in the new administration.
It is not uncommon for justices, conservative or liberal, to tout their former clerks for jobs in a new administration or with any potential employer. TheTrump and Alito conversationoccurred, however, as the justices were about to take up Trump’s plea to avoid sentencing in the hush-money case.
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Chief Justice Roberts has minimized that trend as well as national attention on ethical concerns. He focused in his annual report issued December 31 instead on the court’s critics who he said have engaged in “intimidation” and “disinformation.”
“Public officials, too, regrettably have engaged in recent attempts to intimidate judges – for example, suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations,”Roberts wrote.
From the beginning of his first campaign, Trump, in fact, has claimed individual federal judges ruled against him based on politics.
His public attitude toward the Supreme Court fluctuated. When he lost initial immigration cases in lower courts in the early months of his first term, he posted on social media, “See you in the Supreme Court.” But in 2020, when the justices narrowly rejected one of hisimmigration initiativesagainst children who had been brought to America without documentation, he wrote on Twitter, “Do you get the impression that the Supreme Court doesn’t like me?”
By and large, Trump had scant reason to complain, and he was effusive last July calling the court’s immunity decision “a win for the Constitution and democracy.”
Lawyers who represented Trump in such personal litigation are now slated to represent his administration on policy, includingD. John Sauer, whom Trump has tapped to be the federal government’s top lawyer before the Supreme Court. In recent filings in the hush-money case and the dispute over Congress’ ban on TikTok, Sauer laid out an even more expansive vision of Trump’s presidential power.
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