In Trump’s America, It’s No Surprise That The Supreme Court Is Giving Us Whiplash

Photo: Sarah Silbiger/Bloomberg/Getty Images.

On its last decision day of 2020, the Supreme Court has delivered a 7-2 decision in favor of allowing subpoenas for President Donald Trump’s tax returns and financial records to proceed, forcing Trump to relinquish his tax returns to circuit courts. This also means the highest court in the land has rejected Trump’s claims that he has “absolute” immunity in a New York state criminal investigation, making clear that he can be investigated while holding office.

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The court's other big decision today was McGirt v. Oklahoma, in which the Supreme Court ruled 5-4 in favor of verifying that half the state of Oklahoma is legally Indian reservation land in terms of the criminal justice system. According to the New York Times, this vote could reshape the way criminal justice works in eastern Oklahoma by preventing state authorities from prosecuting Indigenous people.

While both of these decisions came as welcome — but real — surprises to leftists, they were representative of the ways that this session of the Supreme Court has been full of shocks, a true mixed bag of progressive and conservative votes. Since early June, the Supreme Court has released a number of landmark decisions — from the future of the DACA program to ones involving contraceptive rights.

In many — though definitely not all —of these cases, reliably right-wing justices have voted with the left. There are also cases of liberal justices like Ruth Bader Ginsberg and Elena Kagan voting with the conservative justices, as Ginsberg did by siding with the energy company in the case about the Atlantic Coast Pipeline, and Kagan did by supporting the decision to allow employers to opt out of birth control coverage on "moral" grounds. Now, as dozens of cases have been postponed due to coronavirus, it's nearly impossible to gauge what the Supreme Court will decide next.

In June, in an outcome that shocked many — but especially members of the LGBTQ+ community — the majority-conservative Supreme Court issued a landmark ruling staying that federal civil rights law also protects LGBTQ+ workers from discrimination. This ruling will affect approximately 1 million transgender workers and 7.1 million lesbian, gay and bisexual workers.

The majority opinion written by Trump-appointed justice Neil Gorsuch, who wrote: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 

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In other progressive victories, the court first blocked a Louisiana abortion law that could have shut down almost all clinics in the state, with George W. Bush-appointed Chief Justice John Roberts siding with the left — despite his prior support for a similar law in Texas. Then, the Supreme Court prevented the Trump Administration from ending the Deferred Action for Childhood Arrivals (DACA) program, which serves to protect hundreds of thousands of immigrants from deportation.

Some of these decisions were unexpected because of which of the conservative justices, whether Gorsuch or Roberts, crossed idealogical lines. Others were shocking because they seem so internally contradictory. How does one judicial body protect abortion rights in Louisiana one week, and destroy access to birth control on “moral grounds” the next?

It's not only progressives who have been surprised by things like the LGBTQ+ decision and DACA decision — they also took President Trump and right-wing pundits off-guard, with Trump called some of the recent decisions "horrible and politically charged," saying that they're "shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives." The president also noted that conservatives are worried about losing 2nd Amendment rights and "everything else." Trump tweeted all this soon after the Supreme Court ruled against undoing DACA.

Still, even if you think the current Supreme Court is a confusing mess, just wait, because there's a good chance things will get even more chaotic. With a second Trump term now less and less certain, conservative justices Clarence Thomas and Samuel Alito are allegedly considering announcing their retirements, which would potentially give Trump the power to appoint two new, young, ultra-conservative justices to the court.

There would undoubtedly be pushback from Democrats (remember when Obama wasn't allowed to appoint a new justice in the last year of his presidency?), but if 2020 has taught us anything, it's this: Everything that's strange and bad, will only get stranger and worse.

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