Kavanaugh Should Be Embarrassed by Trump's Praise for His Tariffs Dissent

According to President Donald Trump, two of the three justices that he himself appointed to the U.S. Supreme Court are “an embarrassment to their families” because they voted against him in the recent tariffs case. In reality, however, what’s actually embarrassing is the kind of praise that Trump is now heaping upon the one Trump-appointed justice who did vote in his favor.

No president likes to lose in court. But Trump’s continued public seething in response to his SCOTUS loss on tariffs is even more unseemly than usual. “The decision that mattered most to me was TARIFFS!” Trump pouted over the weekend on social media. And “the Court knew where I stood” and “how badly I wanted this Victory for our Country.”

Yet two-thirds of Trump’s own Supreme Court appointees failed to give him what he so badly wanted. “The Democrats on the Court always ‘stick together,’” Trump complained. “But Republicans do not do this. They openly disrespect the Presidents who nominate them to the highest position in the Land.”

Did Justice Brett Kavanaugh cringe a little bit in humiliation when he read that? If not, he should have. Justices Neil Gorsuch and Amy Coney Barrett are getting berated by Trump because of their independence from Trump. Meanwhile, Trump is praising Kavanaugh for exhibiting deference and fidelity to the president who gave him his job. In effect, Trump is publicly patting Kavanaugh on the back for acting grateful and toeing the line. That kind of “compliment” from Trump is far more demeaning to Kavanaugh than any insult from Trump could ever be.

And it will also likely demean any future SCOTUS nominees that Trump may get to put forward. For example, suppose that the retirement rumors now swirling around Justice Samuel Alito prove to be true. Just imagine the scene later this year or next year when the would-be Alito replacement faces his or her Senate confirmation hearings. That nominee will undoubtedly be asked if he or she can be trusted to rule against the president who appointed them if that’s what the Constitution required in a particular case. In the past, answering such a question would have been a total no-brainer for any nominee: “Of course I’ll put the Constitution first, senator! What kind of lickspittle do you think I am?”

But the next Trump nominee may want to think twice before professing that kind of basic judicial independence in public, lest Trump get too upset about the “disrespect” shown to him and pull the plug on the nomination.

My longtime Reason colleague Brian Doherty died tragically last week from an accident at the age of 57. I was a fan of Brian’s work long before I ever met him and can still vividly recall my absolute surprise and delight when I discovered that he had cited an article of mine in his justly acclaimed 2007 book, Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement. I was an aspiring writer at the time, so seeing my name in the pages of Brian’s definitive book was a pretty big deal for me. I’ll always be glad that I got the chance to tell him about the morale boost that experience gave me and to thank him for it after we started working together.

Reason‘s Matt Welch and Nick Gillespie have each written beautiful tributes to Brian’s life and work that I encourage you to read. I’ll just add that he was a singular voice and will be missed. RIP.

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