The impeachment controversy drags Supreme Court into the politics of the Trump era
In the aftermath of a brutal and heavily politicized confirmation process of Justice Brett Kavanaugh, Chief Justice John Roberts seemingly sought to avoid being viewed as a politicalized body in the Trump era. Whether by purpose or accident, the 2018-2019 Supreme Court term was one of the most muted terms in recent memory. But that’s about to change. With the impeachment crisis in full swing, the Supreme Court may be forced involuntarily into the political fray of the 2020 presidential election. And even if the Supreme Court decides not to get involved in impeachment related cases, this crisis has the potential to undermine Chief Justice’s attempts to cast the court as a non-political entity.
Before the flareup of the impeachment crisis, Supreme Court watchers were already anxiously anticipating decisions in a handful of high-profile cases. These cases including a case dealing with certain restrictions on abortion, whether Title VII’s “because of sex” clause prohibits discrimination based on sexual identity and sexual orientation, the constitutionality of winding down the DACA program, and the first case to address the Second Amendment in over a decade. Decisions in these matters, and other scheduled cases, were expected to provide further insight into Kavanaugh’s impact on the Court as well as the direction of the Supreme Court under Roberts.
But President Trump’s threat to try to slow down or stop impeachment in the courts raises the possibility that the Supreme Court may be forced to intervene, overshadowing the cases on their calendar. If that happens, the Supreme Court would most likely have to explore the scope of executive privilege, the reach of the president’s executive power, or issues related to Congress’ impeachment procedures.
President Trump may attempt to prevent executive officers and others from testifying before Congress about internal discussions before or after the call between himself and the Ukrainian president based on a claim of executive privilege. That’s not unlikely, given that the State Department is already blocking some officials from testifying. Moreover, President Trump may argue that presidents possess a wide range of discretion in the fields of foreign policy and law enforcement and that the crux of the Ukrainian impeachment crisis improperly intrudes upon executive prerogative. So, President Trump may make the case that an impeachment based on executive decisions violates the separation of powers. Likewise, President Trump may argue that impeachment proceedings are procedurally defective in a host of ways, as he already is doing via his Twitter posts and a recent letter to Congress.
The potential cases deriving from these impeachment related issues, even if based on questionable legal arguments, may force the Supreme Court to revisit the so-called political question doctrine. This judicially created doctrine holds that the federal courts should not intervene in some instances that involve “political questions” that should be resolved by the political process itself.
Given Chief Justice Roberts’ inclination to avoid being viewed as a politicized body, it is likely that the Supreme Court may opt not to hear cases spawning out of the impeachment crisis. But paradoxically, the Supreme Court’s decision not to hear an impeachment related case may only serve to elevate the Supreme Court’s composition and its role as campaign issues in the 2020 presidential elections. The impeachment crisis presents a real Catch-22 situation for Roberts – all possible outcomes possess the potential to politicize the court in the eyes of the public.
After a muted 2018-2019 term, the new Supreme Court term has the potential to be one of the most monitored and politicized terms in recent memory. The public’s increased belief that the Supreme Court is another politicalized body, a notion that Roberts sought to quell, has the potential to undermine the legitimacy of the decisions issued by the Supreme Court during the current term. And that may further destabilize and delegitimize yet another institution in the era of Trump.
James Barney Associate Professor of Legal Studies, School of Security and Global Studies, American Military University. In addition to possessing a J.D., James has several master’s degrees, including in American politics and American foreign policy. This op-ed article is part of a year long project to assess the impact of Justice Kavanaugh’s confirmation on the Supreme Court. The opinions and comments stated in the following article do not represent the views of American Military University, American Public University System, its management or employees. This blog article, written by a licensed lawyer, is intended solely for educational purposes, not to provide any legal advice or to solicit clients in any U.S. or foreign jurisdiction.
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