I took the above photo on a trip to DC in November of 2022. Rather obviously the protest was in the wake of the Dobbs decision. While long-time readers may recall that I tend to be slow to use terms like “illegitimate” and further try to be quite precise in my application of the term (for example, a post from 2017: Will Donald Trump be a “Legitimate” President?), I couldn’t help but think of this image as I was working on this post, which is not so much about Dobbs as it is about my growing concern about what I perceive as the Supreme Court’s lack of seriousness. And, yes, while I agree that the problem is predominantly the conservative majority, I was underwhelmed by the liberal minority’s approach to the 14th Amendment ruling.
Now, to be clear, the current Court was appointed and confirmed via legitimate means (but, yes, the whole Scalia replacement business, as well as the rush to replace Ginsburg was definitely problematic), so I am not claiming otherwise. Still, the Court is clearly behaving in ways that the general public does not appreciate, which does erode its legitimacy (given that legitimacy is both a legal and a public perception issue).
To wit via Gallup, Confidence in U.S. Supreme Court Sinks to Historic Low.
There is little doubt in my mind that the flaws in the supposedly democratic inputs into the appointment process (the Electoral College plus the Senate) coupled with the arbitrary timing of vacancies have contributed to the public sentiments reflected above (plus the current polarization and discontent in our politics). While the general public may not think much about it, or even fully understand the dynamic, the reality is that the Court has very much been shaped by minority political sentiment in the country, and so it is not surprising that the majority of citizens object to the Court’s behavior and rulings.
A key frustration that I have is that the Court pretends (and I use that word because I believe it is deliberate) like it is above partisan politics, and is simply applying legal theory to interpret texts, as wise sages do. They pretend like they are above it all and that their rulings just provide guidance for the rest of the government to follow. In the abstract, there is something to that claim. But as a practical matter, this is simply not true.
For example, it is a dodge to pretend like the legislature will fix a given issue. On the one hand, I fully understand why that not only sounds like a legitimate position but that that is a preferable way to operate. On the other, if it is obvious that the legislature is not going to address, let alone fix, the given issue then that fact has to be taken into account by the Court when it makes its decisions.
Put another way: if Supreme Court knows (and yes, they know) that providing a specific interpretation of a law will render that law moot and that Congress will not be able to address the mooting, then they are effectively legislating themselves. And, again, they know this. This is especially true when they could either defer to the existing law or make a narrow ruling. Every choice they make is just that, a choice. It is not some magical result that following rules of interpretation requires.
If my car is not working and the best solution is a part that will not be available until some unknown time in the future or there is some less perfect solution that will allow my car to function again, guess which option I will prefer?
In my own professional life, I know that there is often a solution to a problem that requires everything else in the world to operate optimally, and there is a solution that has to take into consideration that the world does not, in fact, operate optimally. As such, the sub-optimal route has to be pursued because pretending like the optimal one will eventually just happen means that there will be no solution to the problem and that other problems will proliferate as a result.
To govern otherwise is folly. And make no mistake, Supreme Court governs when it makes decisions. Further, it is part of the overall policy-making environment (see, e.g., the effects of the Dobbs decision if one needs a recent example).
To be clear: I would prefer a world in which there is an ongoing dialog between the legislature and the courts in a way that would refine and fine-tune the laws and public policy. But we have never really had such a system. Or, perhaps it would be more accurate to state that such interchanges are more rare than they are routine.
I especially find it problematic that the Court will pretend like it is just asking questions, or seeking clarification, while fully well knowing that what they are doing is overturning a law (and perhaps a policy regime) that will not be fixed by quick legislative action. I fear we are headed in such a direction when it comes to the entire basis of the US regulatory state (see Supreme Courtblog, Supreme Court likely to discard Chevron).
I find this general problem to be inherent in their approach to the immunity claims made by Donald Trump (as well as to their ruling on section 3 of the 14th Amendment, see Supreme Court Leaves Trump on Colorado Ballot). They (and I mean mainly here the conservative majority, although as noted above, not just) can pretend like they are dealing with abstract principles and that they are above politics, but the reality is they understand, like they do with rulings on legislation, that there will be no immediate fix to the problems they create.
The lofty sentiments that they use to obfuscate their political preferences are naught but a smoke screen and belie not only partisanship but also their unwillingness to be responsible in a time of potential national crisis.
It is the lack of responsibility that frustrates me the most. An institution with the vast powers of the Supreme Court requires responsibility and seriousness if it is to operate anywhere near justly.
We know that they can try and be narrow as to their rulings. In Bush v. Gore, they played the game of “this ruling is only about now and not the future.” And yet with Trump’s immunity claims, they have decided to play the game of “we have to worry about the Big Picture and Vague Future Possibilities.” Of course, it is no coincidence that the game chosen in each case just so happens to fit the personal political preferences of the majority.
These are ongoing thoughts that I have had, but they were crystallized in recent days. And I agree with the following sentiments from Dahlia Lithwick and Mark Joseph Stern in Slate (The Last Thing This Supreme Court Could Do to Shock Us).
For three long years, Supreme Court watchers mollified themselves (and others) with vague promises that when the rubber hit the road, even the ultraconservative Federalist Society justices of the Roberts court would put democracy before party whenever they were finally confronted with the legal effort to hold Donald Trump accountable for Jan. 6. There were promising signs: They had, after all, refused to wade into the Trumpian efforts to set aside the election results in 2020. They had, after all, hewed to a kind of sanity in batting away Trumpist claims about presidential records (with the lone exception of Clarence Thomas, too long marinated in the Ginni-scented Kool-Aid to be capable of surprising us, but he was just one vote). We promised ourselves that there would be cool heads and grand bargains and that even though the court might sometimes help Trump in small ways, it would privilege the country in the end. We kept thinking that at least for Justices Brett Kavanaugh and Neil Gorsuch and Chief Justice John Roberts, the voice of reasoned never-Trumpers might still penetrate the Fox News fog. We told ourselves that at least six justices, and maybe even seven, of the most MAGA-friendly court in history would still want to ensure that this November’s elections would not be the last in history. Political hacks they may be, but they were not lawless ones.
On Thursday, during oral arguments in Trump v. United States, the Republican-appointed justices shattered those illusions.
I had hoped (and I use that word very deliberately) that the Court would be more serious than it has proven to be. I had hoped that it would have been willing to act with more alacrity than it has. Regardless of one’s views of Trump or of January 6th, it seems rather obvious that the country would be better served to have as much legal closure on those topics as possible. At a bare minimum, the extraordinary nature of the times should have resulted in expeditiousness on the part of all actors. Or, more precisely, the various courts involved should see the importance of the trial and not treat it like it is just like every other trial. The only person who wants this all slowed down is Trump, and as Ronald Brownstein in The Atlantic noted right after oral arguments, Trump Is Getting What He Wants.
At today’s hearing on Donald Trump’s claim of absolute immunity from criminal prosecution, the Republican-appointed Supreme Court majority appeared poised to give him what he most desires in the case: further delays that virtually preclude the chance that he will face a jury in his election-subversion case before the November election.
[…]
After today’s hearing, the hope that a trial could proceed expeditiously now “seems fruitless, and the question is whether the Court will issue an opinion that will provide expansive, albeit not unlimited, immunity, which would be a giant step toward rejecting the idea the president is not a king, a fundamentally anti-constitutional principle,” the former federal prosecutor Harry Litman, the host of the podcast Talking Feds, told me.
[…]
“Even if it’s pellucidly clear that the standard [for immunity] wouldn’t apply to Trump, I do think he likely would get another trip back up and down the federal courts, very likely dooming the prospect of a trial in 2024,” Litman said.
To be clear: Trump deserves due process like everyone else and, moreover, I understand that that means the right to employ favorable tactics, including trying to delay. But, the federal court system, including Supreme Court, is not required to help him do so. Moreover, given that part of the reason for Trump’s desire to delay is the election and the potentiality of being able to either end the cases by ordering DoJ to do so, self-pardoning, or some other extraordinary action should be compelling the courts to be far more expeditious than they are clearly willing to be.
These are not typical charges.
He is not a typical defendant.
The timeline and constraints thereof are unique in American jurisprudence.
The consequences of handling this all incorrectly are well beyond whatever effect they will have on Donald J. Trump, defendant.
And, I suppose, this is the point (or collective points) of this somewhat discursive post: it is a dereliction of duty for the Supreme Court in particular to have allowed this immunity issue to be used as a delaying tactic in this way (they had various options that could have sped this process up). Likewise, it is unconscionable, in my view, that the conservative majority on the Court was willing, and is likely to continue to be willing, to ignore the core reality that the question is not “one for the ages” (as Gorsuch put it) in some abstract sense concerning hypothetical presidents in the far future.
No, it is “one for the ages” in the sense that we are dealing right here, right now with a former president, and current presumptive nominee of his party, who helped foment an insurrection against the United States, and engaged in a variety of other actions (such as blatantly asking the Georgia Secretary of State to find more votes) all in furtherance of subverting election results.
To quote the McConnell speech that I noted yesterday:
A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him.
It was obvious that only President Trump could end this.
Former aides publicly begged him to do so. Loyal allies frantically called the administration.
But the president did not act swiftly. He did not do his job. He didn’t take steps so federal law could be faithfully executed, and order restored.
Instead, according to public reports, he watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election!
Even after it was clear to any reasonable observer that Vice President Pence was in danger, even as the mob carrying Trump banners was beating cops and breaching perimeters, the president sent a further tweet attacking his vice president.
That the man being described above has not been shunned from American politics is stunning. And yes, the Republican Party (with McConnell very much included because of his cowardice regarding impeachment, and his craven partisan blinders since that time) deserves condemnation for not exiling Trump to Mar-a-Lago.
I can’t but help view Justices Alito, Thomas, Kavanaugh, and Gorsuch (and likely Roberts) as being no different than McConnell, McCarthy, and a whole slew of their co-partisans. They are clearly making politically expedient choices that favor their partisan fellow travelers rather than looking out for the good of the country.
As Adam Sewer noted in The Atlantic (The Trumpification of the Supreme Court):
Trump’s legal argument is a path to dictatorship. That is not an exaggeration: His legal theory is that presidents are entitled to absolute immunity for official acts. Under this theory, a sitting president could violate the law with impunity, whether that is serving unlimited terms or assassinating any potential political opponents, unless the Senate impeaches and convicts the president. Yet a legislature would be strongly disinclined to impeach, much less convict, a president who could murder all of them with total immunity because he did so as an official act. The same scenario applies to the Supreme Court, which would probably not rule against a chief executive who could assassinate them and get away with it.
[…]
The Supreme Court, however, does not need to accept Trump’s absurdly broad claim of immunity for him to prevail in his broader legal battle. Such a ruling might damage the image of the Court, which has already been battered by a parade of hard-right ideological rulings. But if Trump can prevail in November, delay is as good as immunity. The former president’s best chance at defeating the federal criminal charges against him is to win the election and then order the Justice Department to dump the cases. The Court could superficially rule against Trump’s immunity claim, but stall things enough to give him that more fundamental victory.
Indeed.
Trump has the conservative justices arguing that you cannot prosecute a former president for trying to overthrow the country, because then they might try to overthrow the country, something Trump already attempted and is demanding immunity for doing. The incentive for an incumbent to execute a coup is simply much greater if the Supreme Court decides that the incumbent cannot be held accountable if he fails. And not just a coup, but any kind of brazen criminal behavior.
[…]
No previous president has sought to overthrow the Constitution by staying in power after losing an election. Trump is the only one, which is why these questions are being raised now. Pretending that these matters concern the powers of the presidency more broadly is merely the path the justices sympathetic to Trump have chosen to take in order to rationalize protecting the man they would prefer to be the next president. What the justices—and other Republican loyalists—are loath to acknowledge is that Trump is not being uniquely persecuted; he is uniquely criminal.
And this is the core of it. And since I refuse to believe that the conservatives on the Court can’t understand this (I hear tell that they have all had pretty good educations), I can only see them as willingly complicit in what is unfolding before us.
At a bare minimum, they have already chosen not to use their authority to speed this process up in a variety of ways and we may all yet suffer grave consequences as a result.
While recognizing that the ruling has not been issued, I will say that this Court is working hard to classify itself as being in a category of infamy that the Taney Court that issued the Dred Scott ruling currently occupies.
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Author: Steven L. Taylor
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