A month before the Supreme Court takes up cases over his tax returns and financial records, President Donald Trump on Tuesday made the unusual suggestion that two liberal justices should not take part in those or any other cases involving him or his administration.
The remarks critical of Justices Ruth Bader Ginsburg and Sonia Sotomayor, New Yorkers like Trump, came during a news conference in India, where Trump was wrapping up a 36-hour visit full of praise and pageantry. They followed tweets in a similar vein.
Justices decide for themselves when to step aside from cases the court is considering, and it is highly unlikely either justice would sit out cases involving Trump, including two cases the court will hear on March 31 over subpoenas for Trump’s tax, bank and financial records. The president wants the justices to reject demands for the records issued by House committees and the Manhattan district attorney.
The justices and Chief Justice John Roberts, who chided Trump in 2018 for his criticism of an “Obama judge,” had no comment, court spokeswoman Kathy Arberg said.
Trump’s comments were the most critical he has been of sitting justices since he took office, though he has not shied away from piling on complaints about federal judges who have ruled against him or, notably, convicted ally Roger Stone. Even as he was flying home from India on Tuesday, Trump tweeted from Air Force One that U.S. District Judge Amy Berman Jackson, as well as the jury foreperson for Stone’s trial, were “totally biased.”
His comments about Ginsburg stem from interviews in 2016 with The Associated Press and other media outlets that were critical of Trump, then a candidate for president. She quickly apologized for her “ïll-advised” remarks, but Ginsburg has not recused herself from any Trump case so far.
His ire at Sotomayor appears to be referencing a dissenting opinion she wrote on Friday. The president said the justice was “trying to shame people with perhaps a different view into voting her way and that’s so inappropriate.”
But regardless of party and ideology, justices have said they write dissenting opinions to do just that — change the minds of people with whom they disagree through persuasive reasoning. Indeed, sometimes draft dissents are so successful that they become majority opinions of the court.
Sotomayor wrote the opinion in a dispute over the administration’s new wealth test for immigrants. Lower courts had blocked the new policy from taking effect nationwide, but the court split 5-4 in January, with conservatives in the majority, granting a stay of the lower court orders. This allowed the rule to take effect everywhere but in Illinois, because that state was under a separate court order blocking the policy.
Then on Friday, the court granted the administration’s emergency request to be allowed to enforce the rule in Illinois, too. Again, the four liberal justices noted their dissent, but Sotomayor went further, issuing a written opinion.
“Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each. And with each successive application, of course, its cries of urgency ring increasingly hollow,” Sotomayor wrote.
Trump’s complaints about judges began well before he won the White House. He harshly criticized Roberts for his vote in 2012 to uphold the Affordable Care Act. In 2016, he said he wouldn’t get a fair hearing in a lawsuit over Trump University in front of an Indiana-born judge of Mexican descent, Judge Gonzalo Curiel, because Trump had proposed building a wall along the U.S-Mexico border.
The criticism continued once Trump was in office. In 2018, Trump lambasted an “Obama judge” who had ruled against a Trump asylum policy. That provoked the rare rebuke from Roberts.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” Roberts said.
He added, “The independent judiciary is something we should all be thankful for.”
Trump, needing the last word, defended his own comment, tweeting defiantly, “Sorry Justice Roberts.”