By Noah Feldman
Is Donald Trump trying to throw his own Supreme Court case? The president’s bid to be the Shoeless Joe Jackson of high-court litigation took a big step forward with an astonishing series of early-Monday-morning tweets. He insisted on calling his executive order restricting travel from six majority-Muslim countries a “travel ban,” denounced his own Department of Justice for watering down the original order, and — incredibly — called for strengthening the ban, presumably after the court has upheld the revised order.
All four tweets will be quoted by opponents of the travel ban. All four substantially strengthen the case for blocking the order as unconstitutional. Taken together, they amount to a nightmare scenario for the office of the solicitor general that must represent the president in court. Short of actually saying that the point of the order was to express anti-Muslim animus, there’s not much Trump could have done to weaken his case more.
Taking the tweets chronologically, Trump began by contradicting his lawyers and insulting the judiciary. “The lawyers and the courts can call it whatever they want,” he said. But he would call the order “what we need and what it is – A TRAVEL BAN.”
Insisting that the executive order is a “travel ban” is problematic on multiple legal levels.
First, there’s the tone of contempt for the legal process itself. The lawyers in question are Trump’s: The opposition is happy to call the order a travel ban. When you insult your own lawyers, the rest of the legal system tends to notice.
As for insulting the lower court judges who have treated the order as a travel ban, that’s practically begging the Supreme Court to vindicate those judges. Even Justice Neil Gorsuch, during his confirmation process, suggested that attacks on the judiciary trouble judges. The rest of the justices, who unlike Gorsuch owe Trump nothing, are going to be extremely vigilant about the legitimacy of the judiciary as a whole.
You can almost hear Justice Elena Kagan making a deadly serious joke in oral argument, asking some hapless attorney from the solicitor general’s office whether she should be calling the order a travel ban, as the president tweeted, or an executive order, as the lawyers have put it.
Of course, the legal briefs that Trump’s administration has filed don’t call the order a travel ban. And there’s a reason for that: A travel ban is at this point really difficult, not to say impossible, to defend in court.
Linguistically, a travel ban sounds a lot like a Muslim ban — which is what the original ban was popularly called, and what gave rise to multiple courts’ conclusion that the order was motivated not by national security but by unconstitutional anti-Muslim prejudice.
The Justice Department strategy, such as it is, has been to minimize the idea that the current executive order is just a direct continuation of the original Trump idea floated during the campaign and tainted by previous statements by the president as well as his adviser Rudy Giuliani, who at one time claimed that Trump had asked him to find a way to make a Muslim ban legal.
Trump’s second tweet further devastated the department’ strategy by suggesting the direct continuity of the second order with the first. Bizarrely, Trump said that the Department of Justice — not the White House — “should have stayed with the original travel ban, not the watered down, politically correct version they submitted” to the Supreme Court.
Leave aside the fact that the second executive order came from the White House over Trump’s signature, not from the Department of Justice. By saying that it was “submitted” to the Supreme Court he is suggesting that the only point of the second version was to survive judicial review. Calling it politically correct and watered down strongly indicates that he doesn’t mean it.
In a case where the president’s intention is all-important, this is madness. Trump is essentially saying that he intended the second order to be the same as the first, just gussied up for the justices. Lawyers on the other side can now state almost unequivocally that the second order should be treated as identical to — and continuous with — the first.
The justices are also unlikely to be amused by the idea that the president himself thinks he revised the order to influence them, rather than out of any sincerity. The contempt for the justices, the court and the legal process will bring out the justices’ protective instincts for their institution and the Constitution it represents.
Then there’s the fact that in the second tweet Trump came very close to repudiating the second order altogether. He is, after all, the president. He isn’t just insulting his own order. He’s almost repealing it.
Evidence for this impulse comes from the third tweet, which says the Department of Justice should ask for expedited review before the court — and “seek a much tougher version.” The department has already asked for a fast review, so what’s new here is the astonishing statement that someone should try to bring back the first executive order. Whether Trump knows it or not, that someone would have to be Donald Trump.
Telegraphing to the Supreme Court that if it upholds his “watered down” travel ban, Trump will take the opportunity to bring back the original ban or something stronger, is telling the justices that Trump is playing them.
And in the end, that’s the most disastrous aspect of this truly disastrous sequence. Trump is communicating as clearly as is humanly possible that he considers the judicial process to be a game. The final tweet denounced the courts as “slow and political.” Trump clearly thinks he can outpoliticize the courts, who won’t tweet back at him.
Chief Justice John Roberts is going to see these tweets. This court is his legacy. There is zero chance that Roberts would like to go down in history as the chief justice who rolled over for a contemptuous, dismissive president.
Trump is going to lose in the Supreme Court. After Monday morning, the question is, by how much. If he pushes any harder, Trump may well get a unanimous ruling against him. He has seriously misjudged the only audience that matters at the moment: the one with nine members.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg View editorial board or Bloomberg LP and its owners.