Trump Whiffs at the Supreme Court

His brief is narcissistic and a legal fiasco

Since the election, Donald Trump has been posturing himself as already the sorta kinda president. Both in his efforts to nullify the criminal prosecution against him, as well as in government functions, he is taking his victory—and the “massive” and “unprecedented and powerful mandate” he asserts it provides—as a general license to kibitz, as if a “president-elect” were a position of constitutional stature.

Earlier this week Trump plunged into a major Supreme Court case—TikTok v. Garland—with a bizarre and utterly amateurish filing. The brief is in his personal capacity (the only legal capacity he currently has) and bears the name “President Donald J. Trump.” It is in some ways a classic in the Trump genre, larded up with irrelevant and hyperbolic (or simply false) characterizations of his greatness. But its legal argument breaks new ground even by Trump’s standards: it is wildly off-base and unprofessional. Most notably, it exhorts the justices to take action that any informed observer would understand the Court has no power to take.

​TikTok v Garland is shaping up to be one the Court’s most important decisions involving social media. It is also significant in its own right givenTikTok’s prominence in the U.S. media landscape, where it has 170 million monthly users (and more than one billion worldwide).

The case involves a challenge to a statute, the “Protecting Americans from Foreign Adversary Controlled Applications Act,” signed into law in April 2024. The Act prohibits third-party service providers (e.g. Google) from distributing or maintaining TikTok. People who already have downloaded the app can still use it, but as a practical matter, the prohibition on third parties would make the application widely unavailable.

​Congress determined that TikTok is a “foreign adversary controlled application” based on its control by China, one of four nations identified in the Act, along with Russia, North Korea, and Iran. The prohibition is set to take effect 270 days from the day TikTok was designated as controlled by China, which just happens to be January 19.

In light of that imminent deadline, the Court has fast-tracked the case, which now is set for oral argument on January 10.

Trump already has taken it upon himself to engage in discussions with TikTok, jumping the gun in a way reminiscent of his national-security-adviser designate Michael Flynn’s overtures to Russia before Trump’s first inauguration (about which he pleaded guilty to lying to the FBI before Trump pardoned him). That’s already bad form. But his brief is something else entirely.

Styled as a friend-of-the-court submission supporting neither TikTok nor the government, the brief opens with an oleaginous testimonial to Trump’s greatness. It justifies Trump’s participation in the case on the ground he is “one of the most powerful, prolific, and influential users of social media in history.” Trump argues that his millions of TikTok followers give him special insight into TikTok’s argument that the law violates the First Amendment.

From there Trump goes full Wizard of Oz. He informs the Court that he “alone possesses the consummate dealmaker expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.” He describes his first term as “highlighted by a series of Policy triumphs achieved through historic deals,” which gives rise to “a great prospect of success in this latest national security and foreign policy endeavor.”

In case we’d forgotten this aspect of Trump 1.0, it’s a vivid reminder that we’re about to trade the humility of Biden for the narcissism of the man who in his first term was wont to compare his performance as President with that of Lincoln.

It’s after Trump asserts his “compelling interest as the incoming embodiment of the Executive Branch” that the brief goes truly off the tracks. Trump tells the Court that it should stay the January 19 deadline to permit his consummate dealmaker expertise to work its magic. The case presents a series of significant constitutional questions and global policy challenges that Trump could make disappear with a wave of his dealmaking wand once he takes office. So, the Court should stay the 270-day legal deadline to give him and the country “more breathing space”—he actually uses that resonant phrase—to negotiate a resolution after he assumes the presidency.

But there’s a colossal problem, and it’s one that would be completely obvious to anyone in the rarefied world of Supreme Court litigation. That is that the court has no power to do what Trump is asking, and, moreover, its absence of power is fundamental to the court’s identity as an institution.

The court is reviewing a law that Congress has passed. This law says that the prohibition on dealing with TikTok kicks in January 19. Now, if the court identifies constitutional or other legal infirmities, or assesses a high likelihood that TikTok will win its legal claims, it can proceed to enjoin the statute on those legal grounds. At that point, the prohibition would not go into effect until the court had resolved the claims.

But the court has no free-roving power to “stay” the date that Congress enacted based on the loosey goosey practical considerations that Trump proffers about his own prowess, even if it were to fully credit them. There is no legal authority for Trump’s request, which explains why the cases that John Sauer, the Trump lawyer who authored the brief, serves up for support are few and inapplicable.

The basic principle, moreover, is axiomatic. It’s showcased in any federal courts class or Supreme Court nomination. In the first morning of his confirmation hearing in 2005, Chief Justice Roberts testified that the court’s role is “to say what the law is” and to strike down acts of Congress that transgress it. “But,” he continued, “the Court has to appreciate that the reason they have that authority is because they’re interpreting the law, they’re not making policy, and to the extent they go beyond their confined limits and make policy or execute the law they lose their legitimacy.” You can find comparable statements in the confirmation hearings of justices from both parties.

That’s not all. The premise of Trump's intervention is no less ungainly. In constitutional terms, there is no place for a “president-elect,” however consummate his dealmaking expertise. We have one president at a time. Trump’s overreaching effort to be a JV president is constitutionally illiterate.

For all these reasons, it was remarkable for Trump to tell the justices to simply stay Congress’s deadline so that Trump could ride to the rescue. That’s a paradigm of what the justices have no power to do. The idea relies on an implicit crass view of the court as a political body that forces solutions on the country because they seem like good policy.

There’s a whole other layer of problem with John Sauer’s brief. Sauer is Trump’s pick to be solicitor general, the 4^th most powerful figure in the Department of Justice and the most important in the federal government for dealing with the Supreme Court. Historically, solicitors general have had smooth or rocky tenures based on the court’s view of their ability, integrity, and candor. Much as the Court itself derives its authority from the public’s perception of its integrity, the SG’s effectiveness traces directly to the Court’s confidence. When the Court suspects that an SG is acting politically or worse, misinforming the court, it’s a profound problem that can infect all of the government’s Supreme Court advocacy.

All of this is presumably obvious to Sauer. He served up the brief’s silly blandishments of Trump knowing it would be grating to the court. Not great. But he then urged the court to stay the statute, contrary to Congress’s express directive, for naked, not to mention dubious, policy reasons. He likely has gotten off on the wrong foot before even being sworn in.

With Trump’s outlandish luck in skirting the consequences of his many alleged crimes, it’s easy to forget that the lawyering on his behalf has largely been abysmal. Time and time again, his briefs have relied on pompous rhetoric based in little law stretched beyond recognition. A series of courts have upbraided him and his counsel for meritless arguments, including with scathing criticism, e.g. that Trump’s arguments “are based on a fantasy world, not the real world” or that they amounted to a “historical and profound abuse of the judicial process.”

Trump himself has been a large part of the problem. Multiple reports indicate that Trump pushes his lawyers to praise him fulsomely in legal filings and to take over-aggressive and confrontational lines of legal argument. It’s often seemed that the true audience for this feckless advocacy is the public rather than the court.

In the past, an individual president would only rarely influence the government’s overall line of legal argument, much less the specific prose. But Trump has indicated that he intends to bulldoze that norm and insert himself into specific cases whenever he feels like it. And the Supreme Court has made clear that there’s no stopping him. That means that the TikTok brief could be a harbinger of briefs to come. He is soon to be both an overbearing vainglorious client and the president of the United States.

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