President Trump thinks it should be illegal for people to criticize the Supreme Court. Other people, though. Not him.
“I believe it’s illegal what they do,” Trump said on the campaign trail in 2024, about those who criticized judges’ decisions. “I believe they are playing the ref. They’re constantly criticizing some of our greatest justices and a lot of great judges.” He continued, “Playing the ref with our judges and our justices should be punishable by very serious fines and beyond that.” (Trump may have meant “working the ref”—a common strategy in sports of trying to pressure a ref to make decisions in your team’s favor.)
Trump criticizing the Supreme Court, however, is perfectly fine and not illegal at all. Earlier this month, a day after a majority of the justices rejected Trump’s effort to restrict voting by mail in the midterms, Trump lashed out in a post: “These are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of their original selves.” Trump accused the justices of being “bullied and cajoled by the Radical Left.”
As is nearly always the case with the president’s accusations, this was an illuminating projection. Trump fears that public pressure on the Supreme Court can sway the justices and how they rule. So when they don’t side with him, he assumes that’s what happened, and he trashes the Court in the hope that it will side with him the next time. He views criticism of the Supreme Court much as he views laws in general: When Trump or one of his allies wants to do something, such as use taxpayer dollars for cultish campaign ads, it’s legal. When his opponents want to do something, it’s illegal.
[Quinta Jurecic: The Supreme Court recognizes the danger of Trump’s election plan]
In fairness, all partisans more or less expect the jurists they appoint to interpret the law in a favorable way in salient disputes. As the legal reporter Jeffrey Toobin recounted in The Nine, in 2005, the conservative legal activist Manuel Miranda advised then-President George W. Bush, “No more Souters and no more Kennedys,” meaning that Bush should appoint reliable right-wingers, not justices who might turn out to be much more liberal than expected (David Souter) or conservative but not conservative enough (Anthony Kennedy). To continue the sports analogy, the Supreme Court today looks a lot like Italy’s 2006 Calciopoli soccer scandal, in which big teams were accused of influencing matches by ensuring they got assigned sympathetic referees—except what was a scandal in sports is standard for the highest court in America. The conservative legal movement hasn’t spent decades capturing the judiciary just to have a few squishy justices go rogue.
The fact that Trump makes this subtext text is a little embarrassing, but it’s not like he’s saying anything Americans don’t already know and understand.
More important is that Trump’s demands in the voting-by-mail case were utterly lawless. Trump issued an executive order in March directing the United States Postal Service to decide which voters receive their mail-in ballots based on whether their name matches newly created federal voter-registration lists, which are likely to be incomplete. In short, it would have allowed the USPS to determine who gets to vote by mail.
Trump has frequently accused voting by mail of being rife with fraud. Voter fraud is, in fact, extremely rare, and no evidence suggests that Trump’s order would prevent it. Although he has politicized the issue, mail-in ballots are actually used by voters across the political spectrum; Trump himself votes by mail.
A brief filed by election-law experts calls Trump’s claims “weak and speculative.” The real damage, the brief states, is to voters: “The rule threatens to disenfranchise millions of elderly voters, disabled voters, military voters and all others including the most vulnerable who depend on mail voting, in both red and blue states.”
[Duncan Hosie: The Supreme Court isn’t interested in facts]
It doesn’t matter how “weak and speculative” a case Trump makes, though; Justices Samuel Alito and Clarence Thomas are still likely to vote for it. They were the only two justices to publicly dissent from this month’s decision. (It is somewhat strange that the Trumpiest justices aren’t the ones he appointed). As it stands, the USPS voter-list scheme seems unlikely to be implemented before the midterms, though Trump may try again before 2028.
Trump has taken a few high-profile losses at the Supreme Court recently—in the tariffs case and in the birthright-citizenship case—but the Court has been more than willing to do his bidding most of the time. According to an analysis published by The New York Times in July, Trump’s second-term win rate at the Supreme Court was 62 percent, higher than any president since George W. Bush and far higher than in his first term. In the rare big cases he loses, Trump tends to lash out at the justices, hoping to bring them to heel.
“The Supreme Court has really let our Country down!” Trump complained on social media after the voting-by-mail decision. “It is a Court that will go down as having rendered some of the most destructive, hurtful, and damaging decisions in our Country’s history.”
This is the Supreme Court that eviscerated the Voting Rights Act in Louisiana v. Callais, sanctioned Trump’s overt racial discrimination toward Haitians in Mullin v. Doe, fabricated a right to presidential immunity that appears nowhere in the Constitution in Trump v. United States, and gave Trump unfettered control over agencies that are supposed to be independent. Considering that record, few could disagree that the justices have “rendered some of the most destructive, hurtful, and damaging decisions in our Country’s history.” Trump’s real complaint is they haven’t done that enough.
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