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A Conservative Court and Trump’s Own Appointees Declare Their Independence

WASHINGTON — At his campaign rally last month in Tulsa, Okla., President Trump ranked his Supreme Court appointments among the biggest achievements of his tenure. “Two great Supreme Court judges!” he boasted. “So, we have two justices of the Supreme Court, Justice Gorsuch, Justice Kavanaugh, they’re great. They are — they’re great.”

He might not have felt so warmly Thursday after Justices Neil Gorsuch and Brett Kavanaugh categorically dismissed his claim to “absolute immunity” from investigators seeking his tax returns.

The two forceful decisions represented a declaration of independence not only by Trump’s own justices but also by the Supreme Court as an institution, asserting itself as an equal branch of government in the Trump era. No matter how often Trump insists that he has complete authority in this instance or that, the justices made clear Thursday that there were in fact limits, just as they did in landmark executive power cases involving Presidents Richard Nixon and Bill Clinton.

That a conservative court including two of his own appointees would so decisively slap down a Republican president’s expansive claim of constitutional power served as a reminder that institutional prerogatives still matter in Washington, even in a time of extreme partisanship. The court remains broadly conservative on a variety of important issues like religious freedom, but in cases on gay rights, immigration, abortion, and now executive power, it has defied the president repeatedly in recent weeks.


By forging a unanimous consensus on Trump’s immunity claim, Chief Justice John Roberts seemed to underline the point he made two years ago when he rebuked Trump by saying there were no “Obama judges or Trump judges.” Even on the overall votes on the two cases, both decided 7-2, he brought together four liberals and three conservatives, echoing the firm lines drawn by the court against other overreaching presidents.


“The truth is, President Trump’s arguments for immunity were so sweeping that it was almost impossible for any justice to really embrace them,” said Tom Goldstein, a prominent Supreme Court litigator and the publisher of Scotusblog, a website that tracks the court.

Still, the justices cut Trump something of a break by sending the two cases back to lower courts to now consider the merits of the subpoenas according to standards set by the court.

Every president since Jimmy Carter has voluntarily released his tax returns, but Trump has refused since 2015 when he first began running for the White House and said he was being audited.

Trump was seeking court protection beyond that enjoyed by any other president, arguing that he had “absolute immunity.”

That flew in the face of the principles set by the court since Nixon in 1974 lost his bid to shield tape recordings that implicated him in the Watergate cover-up.

Twenty-three years later, the court rejected a bid by Clinton claiming immunity while in office against a civil sexual harassment lawsuit brought by Paula Jones, a former Arkansas state worker. Both of Clinton’s appointees, Justices Ruth Bader Ginsburg and Stephen Breyer, rejected his position in the 9-0 decision in that case, Clinton v. Jones.

Both of those cases had cataclysmic results for the presidents involved. The disclosure of the Watergate tapes led to Nixon’s resignation, and the Jones case led to Clinton’s impeachment for perjury and obstruction of justice.

Like his predecessors, Trump was unhappy with the rulings, although aides sought to calm him by assuring him that he could continue fighting in lower courts. But he expressed deep anger at Gorsuch and Kavanaugh, seeing their votes as a betrayal, according to a person familiar with his reaction.


Like the president’s other aides, Kayleigh McEnany, the White House press secretary, focused on the fact that the court sent the cases back to lower courts for further proceedings with standards for Trump to meet if he wants to avoid subpoenas. “That language made it pretty clear that this was a win for the president,” McEnany said. “The justices did not rule against him.”

In a concurrence in the New York case, joined by Gorsuch, Kavanaugh flatly dismissed Trump’s constitutional argument. “In our system of government, as this court has often stated, no one is above the law,” he wrote. “That principle applies, of course, to a president.”