By John Fritze, CNN
(CNN) — It will be smiles and handshakes when President Donald Trump bumps into several members of the Supreme Court on the House floor Tuesday evening before he delivers his first address to Congress of his second term.
But there have been subtle signs that the justices, in private, have been wringing their hands.
Dozens of lawsuits challenging Trump’s deluge of executive actions have put considerable scrutiny on federal courts in recent weeks – including the Supreme Court, which is considering two appeals tied to the new president’s flurry of executive orders.
“There’s obviously a lot coming at us and will be coming at us in the next few months,” Justice Elena Kagan said during an alumni event at Princeton University late last month. “A lot of people are focused on the courts generally, and on my court in particular.”
Trump and his aides have repeatedly toyed with ignoring federal courts, a scenario that would give rise to a constitutional crisis. Trump appeared to channel Napoleon in a recent social media post by claiming that “he who saves his country does not violate any law.” More recently, two top Justice Department nominees were cagey when senators asked if the administration will adhere to all court orders.
Taken together, the threats from Trump and the litigation – including one case that alleges the administration is already defying federal courts – have made an institution naturally inclined to avoid to politics even more keen to keep the temperature low.
“There are times when I feel a little bit more willing to be open, a little bit less willing to be open,” Kagan said at Princeton, stressing that her goal was to get through her talk without making headlines. “You pick up the newspaper. There’s a lot going on in the world. Sorry.”
‘A childish spectacle’
Many justices have shunned showing up to presidential addresses to Congress at all. The late Justice Antonin Scalia once described the State of the Union as a “childish spectacle.”
Still, Chief Justice John Roberts has traditionally attended the address along with at least a few of his colleagues. Those who show usually greet the president as he makes his way to the dais and then sit awkwardly stone-faced as lawmakers erupt into applause over and over again.
On Tuesday, the gap between Trump’s teleprompter and the court’s front row seats may feel wider than ever – particularly if the president discusses the slew of adverse court rulings.
Like the applause during a president’s speech, threats to ignore federal court rulings have mostly met with silence from the Supreme Court. Several close observers of the court say that it is probably a smart strategy.
“Justices are always very reluctant to speak publicly about issues that might come before them,” said Erwin Chemerinsky, dean of the University of California, Berkeley’s law school. “But I think under the circumstances, justices will be especially unlikely to do so.”
Given the tension brewing between the executive and judicial branches, he said, the justices “don’t want to say anything now that would be seen as confrontational or prejudging issues.”
Roberts took an unusual and uncharacteristic swipe at Trump in 2018, asserting that the nation did “not have Obama judges or Trump judges, Bush judges or Clinton judges.” Instead, Roberts said, “what we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
But there are also enormous risks for Roberts and other justices in poking at Trump as his administration turns toward a collision course with the court. It could backfire, giving Trump and his allies an opening to argue that the court isn’t fairly considering whatever appeals they file.
The Supreme Court, undeniably conservative, has already handed Trump high-profile victories, most notably last year’s decision that shielding presidents from criminal prosecution for official actions once they leave office. Not only did that decision go Trump’s way, critics complain the court’s timing essentially scuttled special counsel Jack Smith’s criminal charges.
And yet court has also ruled against Trump in other major cases since the election: In January, five justices voted to allow Trump to be sentenced in his New York hush money case. The court also upheld a ban on TikTok that same month that Trump urged the justices to pause. The court late last month allowed the head of an independent watchdog agency to stay on the job temporarily over the president’s objections.
Kavanaugh brings up Nixon
While the justices aren’t directly discussing Trump, that doesn’t mean the president’s words are going unnoticed behind the court’s curtain.
Without mentioning Trump or anyone else by name, Roberts himself flicked in December at his concerns over a growing number of threats to defy the courts. In an annual report released on New Year’s Eve, the chief justice described that talk as coming from “across the political spectrum.”
“These dangerous suggestions, however sporadic, must be soundly rejected,” he wrote.
In a more subtle moment perhaps underscoring the anxiety within the court, Justice Brett Kavanaugh floated an unusual hypothetical during arguments last week in a case involving an inmate who is seeking DNA evidence he says will show he doesn’t deserve to be executed. The justices were debating a technical legal point on whether courts have the power to review his case if prosecutors make clear they would not turn over the evidence.
That’s when Kavanaugh, a Trump nominee, brought up President Richard Nixon and the Supreme Court’s famous 1974 ruling that required Nixon to release what became known as the Watergate tapes.
“You know, if President Nixon said, ‘I’m not going to come turn over the tapes no matter what,’ you wouldn’t say, ‘oh, I guess we don’t have standing to hear the executive privilege case,’” Kavanaugh said.
Justice Sonia Sotomayor, nominated by President Barack Obama, has been the most outspoken of the nine in recent weeks. Even she did not mention Trump by name.
“Court decisions stand,” Sotomayor, the court’s most senior liberal justice, said during an event in Miami in mid-February. “Whether one particular person chooses to abide by them or not, it doesn’t change the foundation that it’s still a court order that someone will respect at some point.”
“That’s the faith that I have in our system,” she said.
Unfreezing the freeze
If the justices are holding their tongues publicly, they’ll be unable to avoid Trump on the court’s docket.
One of the president’s high-profile firings has already made its way into an emergency ruling. Hampton Dellinger, who heads an agency that handles whistleblower complaints from federal employees, is in the job – for now – because the Supreme Court punted on a request from the Department of Justice to let the administration dismiss him.
And the court is currently considering an emergency appeal over nearly $2 billion in foreign aid that the administration has attempted to freeze. The plaintiffs, a group of nonprofit organizations that rely on the funding to run public health and other programs overseas claimed in a filing Friday the administration has “openly flouted” a lower court order to spend the money.
“The government,” the nonprofits said, “took no steps toward compliance.”
Likely sensing that the arguments appeared to align with Trump’s statements on social media questioning the rule of law, the Department of Justice attorneys defending the spending freeze went out of their way to claim they were not defying the judiciary.
The Trump administration, acting Solicitor General Sarah Harris wrote in a brief last week, “takes seriously its constitutional duty to comply with the orders” of federal courts.
The Supreme Court is set to decide in coming days whether it will back the nonprofits, or Trump.
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