This week, the president has suffered two defeats stinging to the supreme Court, but these defeats could prove politically advantageous for him.
During a tumultuous week in the United States, the supreme Court has rendered two decisions widely interpreted as a defeat for the president Trump and those who believed they could count on the conservative majority to always play solidly in their favor.
First, is to misunderstand the nature of the Court as to assume that the five judges conservatives and the four judges, liberals will always form compact blocks on all questions of ideological impact.
Secondly, it is also a bit simplistic to interpret this episode as being disadvantageous to Trump.
A blow to the religious right
On Monday, the Court supported by a majority of 6 against 3, a decision of the lower courts, making illegal certain forms of discrimination in employment against persons who are homosexual, transsexual, transgender, or other sexual identities as non-conventional (LGBTQ+).
In the specific case covered by the judgment, the Court held that the prohibition to dismiss a person on the sole basis of his sexual identity prevailed on the religious freedom of the employer which spoke of this right to justify the dismissal.
According to the Court, the case was covered by the current restrictions that prevent discrimination on the basis of sex.
This decision was not entirely surprising on the part of the Court, which has upheld the right of persons of the same sex and against the strong resistance of the religious right, but what has surprised more than one is that the decision was written by Neil Gorsuch, the first judge to be named by Donald Trump.
The conservatives who believed that all of the judges appointed by Trump were to look systematically in their favor, they took their hay.
An obstacle to the anti-immigration Trump
On Thursday, the Court made another controversial decision, by a majority of 5 against 4 written by chief justice John Roberts, invalidated a presidential decree of Donald Trump seeks to overturn the presidential decree of Barack Obama to approximately 650 000 young illegal immigrants, dubbed “dreamers” to remain on the territory of the united states under certain conditions.
The decree of Obama, called “Deferred Action for Childhood Arrival” (DACA) permits to immigrants illegally in the United States when they were children to avoid deportation and see their status regularized temporarily if they avoid the legal troubles.
The rule decreed by Obama requires a renewal every three years and the administration Trump, responding to the demands of the electoral base of anti-immigration of the president, wished to put an end to this program and begin the difficult process of deportation of “dreamers”.
In principle, a presidential decree should be enough to overturn another presidential decree, and that is why the administration Trump was astonished to receive this judgment of the Court, written by chief justice Roberts and signed by the four judges liberal.
Without ruling on the merits of the case, the majority ruled that the government had acted “arbitrarily and capriciously” in seeking to complete this program without presenting sufficient evidence.
The chief justice takes pains to mention in his judgment that some valid arguments have been presented by the administration after the fact, but it should have been, these justifications are part of the original action.
In other words, the Court is content to shovel this problem before enabling the program DACA to survive until the next decision that will put an end to it if it is better justified.
Trump plays the victim
The immediate reaction of the president in these decisions has been to play the victim, reiterating his commitment to root themselves ever more firmly, the supreme Court on the right to ensure the unwavering support of the religious right and paléoconservateurs xenophobic that form two pillars of its partisan basis.
In practice, the decision which limits the possibility of discrimination on the basis of sexual orientation is likely to be advantageous for Trump.
As has been noted in the record of a marriage between persons of the same sex, the public opinion has largely swung in favor of the recognition of these rights in recent years and a decision in the other direction from the Court would have been perceived negatively by a good portion of public opinion that may lean toward the democrats to prevent the Court becoming too conservative on these issues.
For Trump, the decision allows him to continue to say, in agreement with the religious right, but it prevents it from taking decisions politically unpopular outside of this group.
The case of DACA is another hot potato for Trump. The postures that he takes against those hundreds of thousands of young “dreamers” are popular with his electoral base.
However, as the vast majority of “dreamers” are well integrated in their host communities, their deportation is very unpopular in the general electorate, especially for the tens of thousands of whom are parents of children born on the territory and possessing american citizenship.
In pelletant this issue forward, the supreme Court, thus, allows Trump to continue to make noise on the subject to the intention of its supporters, without having to pay the political price for this campaign of deportation which would be very badly received by public opinion in this election year.
The president, Trump has not put time to take advantage of the situation, as evidenced by this tweet, where he promises his followers to continue to fight against DACA but concedes that the concrete actions (unpopular) will have to wait until after the election.
Good news disguised as defeats
All in all, these two bad news for Trump from the supreme Court this week were not bad enough for him.
It is important to understand also that the Court itself is conscious of its place in the balance of power in Washington, and rather jealous of its prerogatives.
This is not the first time nor the last time a president tries to turn this opposition in its favour, and Donald Trump don’t miss out.
In spite of everything, he didn’t seem to be able to completely evacuate the general feeling of defeat and weakness that emerges from the episode.
Donald Trump likes to remind those who want to hear that we can trust him to fulfill his promises, but as he has not all the powers he claims to have, these two cases can easily be highlighted by his opponents as signs of weakness and other evidence that he made promises in the air without being able to necessarily keep them.