Federal Courts and Nominations

A POTUS-SCOTUS get-together? Past decisions, current cases could make it a little awkward 

By Robert Barnes 

If President Trump is really going to have the Supreme Court over for supper, it might be a good idea to lock down a date before things get awkward.

Or is it already too late for that?

A dinner between POTUS and SCOTUS appeared briefly on the president’s “week-ahead” schedule given to reporters last week. Hours later, a new version omitted any mention of the event. The Supreme Court referred questions to the White House, which said the get-together would be “rescheduled.”

But it’s unclear whether even a formal invitation was issued. The whole thing seemed to be more aspirational than actual.

If they do ever get together, there would be plenty to talk about — or, perhaps, to avoid.

Certainly, the nation’s highest court is never far from Trump’s mind. He has said his promise to nominate conservative justices and keep the court from moving left was instrumental to his victory, a way to woo evangelicals and other conservatives skeptical of him.

The recent confirmation of Justice Neil M. Gorsuch is the most substantial accomplishment of Trump’s first 100 days in office, and he has not been shy about promoting it. In a speech to the National Rifle Association on Friday, Trump pointed to Gorsuch as a perfect example of a campaign promise delivered.

Trump seems to at least hope that the high court is there as something of a backstop against a federal judiciary that for now has halted his most ambitious plans on immigration.

“See you in the Supreme Court!” he tweeted again last week.

Trump’s revised travel ban, targeting refugees and immigrants from several countries, seems headed to the justices’ docket sooner rather than later. It has been put on hold by federal judges at opposite ends of the country, and two of the nation’s appeals courts will review those decisions in the coming weeks.

The losing side will surely bring the issue to the Supreme Court.

Last week, Trump’s ire was for a federal judge in San Francisco who put on hold his executive order threatening the loss of federal funding for cities that do not cooperate with federal efforts to deport those in the country illegally.

U.S. District Judge William H. Orrick, a Barack Obama nominee, pulled out two Supreme Court rulings supported by conservatives in deciding in favor of challengers San Francisco and Santa Clara.

One, written by Justice Antonin Scalia, held that local officials could not be forced to make background checks required by federal gun-control laws on new gun buyers. The federal government “may not compel the states to enact or administer a federal regulatory program,” Scalia wrote.

The other was part of Chief Justice John G. Roberts Jr.’s ruling upholding the Affordable Care Act in 2012. While keeping most of the law intact, Roberts wrote that it was unduly coercive of Obama and the Democratic Congress that passed the bill to threaten states with the loss of Medicaid funding if they did not go along with the prescribed expansion of the program.

On that, Roberts was joined by all of the court’s conservatives and two of its liberals.

So there is always plenty that draws the court and the president together, whether they have dinner together or not.

Any interaction between Trump and the justices has been in formal settings. Obama visited the court before his term began, but Trump did not. The justices attended Trump’s inauguration, of course, and some went to his first address to Congress. All were in the Rose Garden to see Justice Anthony M. Kennedy administer the judicial oath to Gorsuch, his former law clerk.

Socializing among the president and the justices used to be more common. In recent years, it seems to be limited more to official events such as state dinners. But news clips indicated that Presidents Jimmy Carter and George W. Bush held informal dinners for the justices.

At an event last week organized by the Constitutional Accountability Center (CAC), a group of lawyers who practice before the court were asked if a private dinner bringing together the head of the executive branch and the leaders of the judicial branch seemed appropriate.

Washington lawyer Erin Murphy, a former Roberts clerk, said that when she first heard about the possibility of a dinner, “I had this gut reaction that, ‘Oh, that’s unusual.’ So I was surprised to learn it really wasn’t unusual.”

Donald B. Verrilli Jr., who worked in the Obama White House and then served as the president’s solicitor general, said he thought it “a little extreme” to insist that the president and justices not interact beyond their official roles.

“The idea that any justice’s vote would be affected one way or another by whether they’d had this dinner or not seems pretty far-fetched to me,” he said.

Others mostly agreed, with caveats about timing and some unique aspects of the Trump presidency.

“Major initiatives of this administration are likely to come before the court in the near term,” said Brianne J. Gorod, the CAC’s chief counsel, and that would be “one factor to keep in mind” in assessing the propriety.

Ajmel Quereshi, assistant counsel at the NAACP Legal Defense and Education Fund, mentioned Trump’s propensity for tweeting criticism of the federal judiciary. “Certainly if a tweet came out after the dinner, that would be relevant,” he said.

The justices have a lot of experience interacting with lawyers who are their friends or former clerks or past rivals, as well as groups that in past lives might have been allies or enemies.

Roberts told an audience recently that one thing the justices do to maintain a good working relationship is to have lunch together on the days the court hears oral arguments. They talk about current events, sports, opera, children and grandchildren, he said. The only rule: no talk about work.

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