Trump reeling from two Supreme Court defeats

The US Supreme Court delivered the second blow to Trump this week when it ruled 5-4 on Thursday that Trump’s executive order rescinding the Deferred Action for Childhood Arrivals (DACA) program was not valid because the reasoning behind it was ‘arbitrary and capricious’.. This follows the 6-3 ruling on Monday that said that employers who fired employees because they were gay, lesbian, or transgender violated the law.

The US supreme court has rejected Donald Trump’s bid to end the program that made it possible for undocumented immigrants brought to the country as children to live and work in the US without fear of deportation.

More than 652,800 people, including doctors fighting the coronavirus, were waiting on the decision about the program, Deferred Action for Childhood Arrivals, commonly known by its acronym Daca.

Daca allowed young people, known as Dreamers, who were raised without legal immigration status in the US, to obtain renewable, two-year authorizations to live and work in America. It did not provide a path to citizenship.

Chief Justice John Roberts wrote the 5-4 majority opinion, arguing that the Trump administration’s decision to end the program was “arbitrary and capricious”.

The case hinged primarily on whether the Trump administration followed proper procedure in its decision to end Daca – not whether it could legally end it. As the majority opinion states, “all parties agree that it may”.

Thursday’s decision leaves open the possibility that the Trump administration could seek, again, to end the program, though it would be difficult to do so before the November election.

The fact that the opinion highlighted the ‘arbitrary and capricious’ nature of the action as the reason for striking it down is interesting since that phrase pretty much describes everything that Trump does. Mark Joseph Stern explains how and why Roberts arrived at that conclusion.

Roberts’ opinion is strikingly similar to his decision last year blocking the census citizenship question. In each case, the Trump administration cut corners in a mad dash to enact new policy. In each case, it provided dubious, flimsy, and outright dishonest reasons for its actions. In each case, it hoped the Supreme Court’s conservatives would disregard its ineptitude and mendacity and serve as a rubber stamp. And in each case, Roberts refused to play along, drawing a line in the sand. The chief justice is not a closet liberal, but he is a stickler for the rules. And he is not willing to let Trump bend those rules without, at a minimum, a more plausible pretext.

At bottom, Roberts’ opinion is about political accountability. If Trump and his allies want to strip lawful status from Dreamers, the chief justice indicated, they must be clear and candid about their reasons for doing so. The American people deserve to know why an administration would take such a dramatic and damaging step. Trump’s appointees cannot just claim, without persuasive evidence, that they are legally obligated to end DACA. At the end of the day, the president, who is accountable to the voters, must own his decision.

Being the vindictive person that he is, there is no doubt that Trump will not only try to eliminate DACA once more, he will use it as a rallying carry in his re-election campaign. While he will not be able to boast that he kicked out all these undeserving furriners, he can argue that he needs to be re-elected so that he can try again. He has already begun the process, throwing in the completely unrelated Second Amendment into the mix because why not?

And of course he has started whining about how everyone is being mean to him, tweeting “Do you get the impression that the Supreme Court doesn’t like me?”, because as a narcissist, everything is all about him.

I have been thinking about these two court decisions as well as the 2014 Obergefell decision outlawing state bans on same-sex marriage and the 2012 Windsor case that preceded it that struck down the infamous Defense of Marriage Act. These have dumb-founded conservatives who thought that they had a 5-4 lock on the court and would get their way on every issue.

We should not be too encouraged by these decisions, however, and begin to think that some kind of realignment favoring liberal views is occurring. The court is still very conservative on most issues, especially those that involve protecting the financial interests of the oligarchy. What we are seeing is a bit of light on some social issues. Why this is the case one can only speculate.

One thing to note is that the court is ever mindful about popular opinion and one way that they may be influenced by it is through their law clerks. Each supreme court justice hires four law clerks every year. It is these clerks who research the issues and write drafts of opinions. They also act as sounding boards for the justices. These clerk positions are highly prized and the justices get to pick the best and brightest recently out of law school to serve in these positions. It is not a stretch to imagine that when it comes to social issues, these young people are very much in touch with the prevailing zeitgeist among their generation. They likely view full equality for the LGBT community as an obvious good and are not nearly as xenophobic as your typical Trump supporter. So perhaps in the discussions the justices have with their clerks, their thinking helped sway at least some of the justices’ views.

It is interesting that chief justice John Roberts voted with the four liberal justices in both cases. It was he who also joined them in 2019 in saving Obamacare and also blocking the census citizenship question because the Trump administration lied about why it included it. This has resulted in the crazies questioning his conservative bona fides, even though he did not support the Obergefell and Windsor cases, and even filed a highly indignant dissent in the Obergefell case. It was now retired justice Anthony Kennedy who joined with the four liberals to give a 5-4 majority in those two cases.


  1. says

    I’m afraid that they are signalling with the “arbitrary and capricious” that if the administration had competent lawyers that argued it better, they could have gotten away with it.

  2. Pierce R. Butler says

    I get the impression that Roberts takes his cues from the pro-corporate wing of the Republican Party (who appreciate Dreamers as a talented, motivated, and low-cost labor pool), and feels somewhat offended by the arrogant yahoos of the party’s hyperchristian faction(s).

  3. sonofrojblake says

    “reeling”? Hardly. As you go on to say, this is practically a campaign plan. He NEEDS to be reelected because just having a Conservative majority in the supreme Court obviously isn’t enough. Its almost as though they’re trying to help him get reelected by making these decisions. Decisions they can easily row back on if Biden were to win. Still got that majority.

  4. Owlmirror says

    I’m afraid that they are signalling with the “arbitrary and capricious” that if the administration had competent lawyers that argued it better, they could have gotten away with it.

    Or it could be that any argument they could make would be “arbitrary and capricious”, because “arbitrary and capricious” is another way of saying “bigoted”.


  5. Andrew G. says

    The second amendment isn’t quite unrelated, because the other thing the SCOTUS did was to decline to hear all of the 10 or so gun-rights cases that were up for appeal.

  6. jrkrideau says

    An interesting take by a non-USian on why the US Supreme Court decision was as it is

    The decision of the US Supreme Court, that the Civil Rights Act prohibits discrimination based on sexual orientation and gender identity was entirely predictable, based on the century old observation of the fictional Irish-American bartender Mr Dooley observed “The Soopreme Court follows the illiction returns.”

Leave a Reply

Your email address will not be published. Required fields are marked *