HAS THE US SUPREME COURT TURNED AGAINST PRESIDENT TRUMP? Part 2

In the second of this two-part series, Judge John Wilson (ret.) analyzes recent U.S. Supreme Court decisions, and finds that the implications for the Trump Administration is not as negative as the media portrays.

According to CNN, the decision in the Department of Homeland Security v. Regents of the University of California case “is a blow to the Trump administration, as immigration reform has been a lynchpin of Trump’s agenda.” Yet, “We do not decide whether DACA or its rescission are sound policies,” Roberts wrote in the majority opinion. “‘The wisdom’ of those decisions ‘is none of our concern.’ We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”

Logically, then, if the Trump Administration were to make a study of how to accommodate those who have come to rely upon the DACA program, and perhaps develop a gradual phase-out of the program, allowing those who already participate to be “grandfathered” in on the program, DHS would then be in compliance with their “procedural requirements,” and be free to rescind the program.

The narrow basis for Chief Justice Roberts’ ruling did not stop the media from finding a trend where none exists. In particular, the recent decision in Bostock v. Clayton County, Georgia has been hailed as a “landmark ruling (that) will extend protections to millions of workers nationwide and is a defeat for the Trump administration.” Yet, a review of this “landmark” shows that Bostock is in keeping with established precedent, and does not represent any “defeat” for President Trump or his policies.

In the majority opinion written by Trump appointee Neil Gorsuch, “an employer who fires an individual merely for being gay or transgender violates Title VII (of the Civil Rights Act of 1964, which) makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment resolves these cases… When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex.”

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This decision was based in particular on three Supreme Court precedents; “In Phillips v. Martin Marietta Corp., (2020), a company was held to have violated Title VII by refusing to hire women with young children…In Los Angeles Dept. of Water and Power v. Manhart, (1978), an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII…And in Oncale v. Sundowner Offshore Services, Inc., (1998), a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.”

Thus, Bostock is just another in a line of cases going back more than 40 years, interpreting the language of Title VII to include discrimination against any and all variations of sexual orientation. How such a ruling could be a “defeat” for the Trump Administration remains a mystery. “They’ve ruled and we live with the decision,” Trump said. “We live with the decision of the Supreme Court.”

For years, the media has tried to portray the Trump Administration as an enemy of gay rights. However, going back to the 2015 decision Obergefell v. Hodges, in which the Supreme Court ruled that under the Fourteenth Amendment, states must recognize same sex marriages, according to the Daily Beast, “President-elect Donald Trump told Lesley Stahl of 60 Minutes that he has no plans to roll back same-sex marriage rights. Asked by Stahl if he personally supports marriage equality, Trump replied, ‘It’s irrelevant because it was already settled. It’s law. It was settled in the Supreme Court. I mean it’s done.’ He went to clarify that even if he were to appoint a judge who opposes marriage equality, the issue has been ‘settled’ and he’s ‘fine with that.’”

Clearly, the wishful thinking of the media is not supported by a review of the actual rulings made by the US Supreme Court. The most recent decisions are all based in precedent, and relatively long standing precedent at that. President Trump may have many enemies, but there is no evidence to support a view that the Supreme Court is among those enemies.

Illustration: Pixabay

Quick Analysis

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.