Q&A – The Supreme Court and Trump's National Emergency

Today’s question was submitted by Laurie.

I'm afraid I don't have confidence in the Supreme Court, particularly John Roberts. He's turned out to be a liberal and not particularly interested in upholding the Constitution. I don't want Trump's EO going to the SCOTUS.

Bottom Line: I’ve heard a lot of this since Friday’s National Emergency declaration. There’s a general lack of confidence in Chief Justice John Roberts by many conservatives. It reminds me of what I researched last summer when Justice Anthony Kennedy announced his retirement. I’ll simply say that perception and reality are often different when it comes to Supreme Court Justices. 

Utilizing Washington University's School of Law's Supreme Court Database, I picked out only split decisions in which 5 justices decided the outcome. Using that barometer here's the ideological breakout on the court Pre-Gorsuch: 

  • Alito: 84% conservative 
  • Roberts: 82% conservative 
  • Scalia: 81% conservative 
  • Thomas: 80% conservative 
  • Kennedy: 71% conservative 
  • Breyer: 21% conservative 
  • Sotomayor: 19% conservative 
  • Kagan: 18% conservative 
  • Ginsburg: 15% conservative 

A couple of takeaways. First, the most conservative justice, Alito, is virtually as conservative as the most liberal justice, Ginsburg is liberal. Second, is that while Kennedy was least conservative of the perceived "conservative" block of judges, he was far more conservative than not. But as generally conservative as Kennedy was in his time on the court, Chief Justice Roberts has been the second most conservative justice on the court. Surprised. I’m certain in conservative circles that almost to a person there’s a belief that Thomas is more conservative than Roberts. My point is this, there‘s long been a disconnect between perception and reality. I don’t know how Justice Roberts will rule on any legal challenge to President Trump’s National Emergency declaration. I do know that if the perception is that he’d ideologically be less reliable on the issue than say a Justice Thomas for example, that’d be historically incorrect. By the way, I have little to no doubt that the President’s order will stand at the end of all of this. The money sought, is the construction fund money I previously articulated could be allocated because it’d already been approved by Congress and Donald Trump is the Commander-in-Chief of the military.

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Photo by: MANDEL NGAN/AFP/Getty Images

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