Your Voice 2016
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Every day seems to bring fresh evidence of how a Donald Trump presidency could be a disaster on multiple fronts, whether it’s bragging about sexually assaulting women, implying his accusers are too ugly to assault, or suggesting in Wednesday night’s final presidential debate that he might not accept the election results. But that’s not all we have to look forward to if the Republican nominee wins next month: A Trump presidency could also be an unending series of battles in and about our courts.
Trump is by far the most litigious major party nominee in American history. In June, he was reportedly involved in at least 3,500 lawsuits over the past 30 years, including 50 that were still pending at the time.
While many are the kinds of cases you’d expect to be filed against a real estate developer, others raise major questions about his character, including a suit alleging Trump University defrauded students, another claiming Trump raped a 13-year-old girl (though recent reports have cast doubt on this claim), and two related cases in which Trump is suing restaurateurs who backed out of a Trump-led Washington, D.C., development project over his derogatory comments about Mexicans.
These cases won’t go away on Inauguration Day. Instead, they’ll continue making their way through the courts and pose a major distraction for President Trump. He could find himself repeatedly subpoenaed, deposed, and called to testify about his actions.
But Trump’s position as commander-in-chief would do little to help him avoid these distractions. Two decades ago, then-President Bill Clinton tried to delay Paula Jones’ sexual harassment suit against him until after his term of office ended in January 2001. But in a unanimous 1997 decision, the Supreme Court ruled that Clinton was not protected by an executive privilege that barred all lawsuits, allowing Jones’ case to go ahead. The Clinton v. Jones ruling would apply equally to suits against Trump, both those already pending and those yet to come.
And there will almost certainly be more cases to come, given Trump’s history of not paying vendors and the fact that at least 10 women have now come forward claiming he sexually assaulted them. For the latter, it’s possible that Trump could face criminal charges. The reality TV star’s history of lying—including at least one instance of lying under oath—could also put him at risk for perjury charges.
What’s more, Trump could face a litany of lawsuits challenging his actions as president. Modern presidential administrations are sued constantly; the state of Texas alone has sued the Obama administration at least 44 times in the last eight years, and multi-state suits against the federal government have increased significantly over the past two decades.
But while lawsuits are a fact of life for any administration, Trump’s lack of temperament—especially his tendency to act first and ask questions later—could make them both more likely and more contentious.
Trump’s signature promise to ban Muslims from entering the United States would most likely be challenged and heard by the Supreme Court. Existing precedent gives the president broad discretion in immigration matters, but legal scholars suggest that banning immigrants based on religion might violate the U.S. Constitution’s guarantees of freedom of religion and equal protection or the requirement that the president act in good faith in immigration matters (possibly a stronger claim, given that Trump’s ban would be based more on his gut feeling than on evidence). But the outcome would be uncertain, and a Trump victory at the Supreme Court could further provoke white supremacist sentiment in America.
A Trump administration may also routinely disregard rules for issuing and revoking administrative regulations. He’s promised, for instance, to revoke the Environmental Protection Agency’s Clean Power Plan, and roll back other major environmental regulations. But adopting or amending regulations is an onerous process that can take years.
Trump might order agencies to rush through changes without proper review of evidence, leading to extended litigation. For instance, trying to revoke the Clean Power Plan would almost certainly end up before the Supreme Court, as 18 states have sided with the EPA in the ongoing case challenging the plan and won’t likely let the issue drop.
Trump is by far the most litigious major party nominee in American history.
In many of these cases, Trump might engage in outbursts attacking judges for perceived partiality, and calling the independence of the judiciary into question. He’s already repeatedly accused the judge presiding over the Trump University case, Indiana-born Gonzalo Curiel, of being biased—based solely on his Mexican heritage. Such attacks could continue after a Trump inauguration, and even extend to the Supreme Court.
In the aftermath of Trump’s comments about Curiel, Republicans and Trump surrogates made repeated references to Supreme Court Justice Sonia Sotomayor’s years-old comment that “a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male” judge. (Sotomayor was born in the Bronx to parents of Puerto Rican descent.)
Although Trump said he doesn’t think Sotomayor should have to recuse herself in immigration cases, that could easily change the moment she asks a critical question during oral arguments. And given his campaign’s flirtation with the anti-Semitic alt-right, comments about the Jewish heritage of Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan are also possible (not to mention sexist comments about Sotomayor, Ginsburg, and Kagan).
And unless the Senate unexpectedly decides to act on Merrick Garland’s nomination, Trump would be able to nominate at least one justice to fill the vacancy left by the death of Antonin Scalia. Last month, Trump released a long list of potential Supreme Court nominees filled with conservative jurists, many of whom are best known for their strident anti-LGBT positions. But because Scalia was one of the court’s most conservative members, any replacement won’t likely shift it further right.
Trump could do far greater harm to the Supreme Court if another justice resigns or dies. Two members—Ginsburg and Anthony Kennedy—are over 80, while three more—Breyer, Clarence Thomas, and Samuel Alito—are over 65. Replacing either the left-leaning Ginsburg or the libertarian Kennedy (who has often voted with the court’s liberals on social issues) would mean a dramatic shift in the court’s balance of power for decades to come.
While Trump’s legal troubles might make for compelling television, they would be a disaster for America’s court system. A president who baselessly attacks judges for bias, lies with impunity even while under oath, and questions the legitimacy of democratic institutions would seriously threaten our judicial independence. Add in one or more Trump nominations to the Supreme Court, and it could be generations before we recover from the damage.