What looks a lot like Donald Trump just being Donald Trump – hammering incessantly on a losing argument – may be far more strategic than it seems on its face. Berkeley Law professor Orin Kerr pointed out the possibility that there could be more to Trump’s blustering than meets the eye.
Last night I almost tweeted that Trump might be pushing round 2 of the census case in part to blame the Supreme Court and rally the base for 2020 on judges when he lost. I stopped because the idea seemed just too cynical. https://t.co/9WI6m2QwhW
— Orin Kerr (@OrinKerr) July 9, 2019
The U.S. Supreme Court ruled against Trump on the issue of including citizenship on the 2020 Census, although it did leave the door open for the administration to provide some heretofore unstated rationale and get an alternative ruling in the future.
After managing some of the chaos resulting from POTUS and his people being on obviously separate pages about their plan forward, Trump declared that he was considering including the citizenship question via executive order.
There’s certainly a chance that Trump will ignore SCOTUS’ directive – that he raise more solid justification for including the question – and just proceed via Executive Order. If that happens and the case ends up in court, Trump may well prevail on grounds that the matter falls within his Article II discretion.
On the other hand, though, there’s a solid chance that Trump will absolutely lose. Knowing that possibility, perhaps Trump is using this Census question as a campaign prop. Trump’s 2016 win was primarily bolstered by peddling the Gospel of Xenophobia to disgruntled voters. His base agrees with him on the census question. And an ongoing battle with federal courts would underscore the importance of his presidency – only Trump’s chosen judges can be trusted to make the right rulings on matters of national importance.
On July 4, Axios reported that an administration insider confirmed this line of thinking, saying, “I think that there’s a good argument to be made that even though the president may lose in litigation at the end of the day, going through that process ultimately makes it clear that it’s the chief justice, and not the Executive Branch, that bears responsibility for that unfortunate outcome.”
Blaming judges for unfavorable outcome is Page 1 of the Trump playbook; voting for Trump because of who he’ll appoint to the bench is Page 1 of his supporters’. In the 2016 election, one in five voters polled said the Supreme Court had been on their mind while voting. Of those, 56 percent of those who said SCOTUS nominees was their primary concern voted for Trump.
Those statistics are frightening when viewed in the context that at least one poll showed 10% of college graduates thought Judge Judy was a sitting SCOTUS justice, and Trump actually considered nominating Fox News personality Jeanine Pirro to the high bench.
During the last presidential election, talking points about SCOTUS appointments were primarily tied to voters’ views on abortion and candidates’ respective promises to expand or contract reproductive freedom. The census question affords Trump an even more useful opportunity: rally his troops to vote him in as appointer-in-chief of the judiciary while avoiding all that icky feminism on the abortion issue. If he could convince enough people to care about the relationship between the census and illegal immigration, this might be just the thing.
[image via Win McNamee/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.
Follow Law&Crime:
