In another blow to the Fox-Trump-GOP Evangelical base, the Supreme Court strikes down Louisiana abortion restrictions.
I don’t think the MAGA people will be happy about this. [I typed that in the understatement font]
Decisions like this one are going the way they should go. Nobody can predict with perfect accuracy what a court will do. The better the lawyer, the more accurate the predictions, but courts often surprise us. If you look at my FAQs, you’ll see that I’ve been pushing back against the Twitter meltdowns about how Trump’s court-packing means we’re screwed. The only prediction I’ve made is that the Court won’t let Trump make himself dictator. (People were really afraid of that)
I don’t understand why it’s taking so long. It should be a slam-dunk in the Trump Loses Department. I’ll note that Jed Shugerman, law professor at Fordham (and friend, we’ve co-authored a few articles) took a close look at the other decision (Seila v CFPB) issued today and thinks it looks bad for the tax case.
The Supreme Court really doesn’t work that way. They don’t “trade.” They do, however, try to persuade each other. With the exception of Kavanaugh, I believe each justice operates from a deeply held set of beliefs about what the Constitution means and how it should be interpreted. They try to do what they think is right. I despise originalism and think that the inherent biases should be obvious to everyone, but Scalia was a smart guy and really thought his view of the Constitution was correct. Also, not all justices are (cough, cough) equally smart. Not smart isn’t the same as corrupt.
If by trading you mean “I’ll decide this case against what I think is right, if you decide that case against what you think is right,” it just isn’t going to happen, except maybe Kavanaugh who seems to have no integrity. Who would Roberts “trade” with?
The only way to protect the standing (or integrity) of the court is to issue sound decisions. If he wants to allow Trump to shield his taxes and thereby shield Presidents from oversight knowing it’s the wrong decision, he can’t be trying to protect the integrity of the court. If he thinks it’s the right decision, he doesn’t have to “trade.”
In other words, trading with the liberals doesn’t protect the integrity of the court. One for Trump, one against Trump is corrupt because they are not deciding on the merits according to what they think the law is and how the Constitution should be read. In fact, it undermines the integrity of the Court. Because the law doesn’t work like that. It isn’t politics. The reason that SCOTUS justices have a lifetime appointment is so that they can do what they think is right without playing politics.
So the very idea that Roberts would “trade” to protect the standing of the court is nonsensical because trading, by its very nature, is corruption of the court. If justices do anything other than what they deeply believe is right, they are corrupting the court.
The Supreme Court has, in the past, issued decisions for political reasons. One would be the Dred Scott case in which SCOTUS basically said African Americans belong in slavery because they are inferior. Scholars of the court find out later what went into the decisions, and it appears that SCOTUS (in 1857) was trying to settle the slavery issue to help the US avoid Civil War.
(1) it didn’t work and (2) That was not the Court’s finest hour [I also typed that in the understatement font] If Roberts wants to protect the court’s standing, the only way he can do that is by making sure the Court issues decisions that respect precedent and the Constitution, and interpret the Constitution [in his view] correctly.
The delay most likely indicates that they’re still squabbling (maybe that was the wrong word) over the language to use. A SCOTUS decision isn’t just a thumbs up or thumbs down. They write a lengthy, detailed decision explaining their reasoning so that the case can guide future courts and serve as precedent. Drafts are passed around, edits are discussed. Justices can agree on the outcome of the case but disagree over whether (for example) to use “shall” or something less harsh. “What do we mean by ‘is’?”
Trust me: whenever SCOTUS issues a decision that is drawing a lot of public attention, they know they will anger people. That’s the job. Each time a judge issues a decision, he or she angers half the courtroom. They’re used to it, and they’re not afraid to enrage people. They want their decisions to hold up.
I don’t think there have ever been so many cases issued this late. It could be elevated squabbling, or the pandemic could be slowing things down. Ordinarily they can pop into each other’s offices to discuss. Negotiation can happen faster in person. SCOTUS is really 9 independent law firms.
I didn’t say decisions have never been political. Bush v. Gore is another example of a political decision. I’m saying that those decisions are widely viewed as low points. Sandra Day O’Connor later realized that Bush v. Gore was a mistake in that it lowered respect for the Supreme Court as an institution. She later understood the need to try to restore some of the Court’s lost prestige. Roberts knows that. I’m saying that the argument that Roberts wants to maintain the court’s integrity through political maneuverings is nonsensical because those political decisions deprive the court of prestige. If he is “trading,” scholars and historians will find out. That’s not how to maintain the court’s standing and integrity.
A number of people on Twitter responded by arguing that the Supreme Court is corrupt and offered reasons to prove it.
It makes me sad to see cynicism on the left. Cynicism is a hallmark of right wing politics and leads to nihilism. If you start thinking that the Supreme Court is corrupt, get off social media and go read a good book on the history of the Court for perspective.
I just looked on my e-reader and the most recent book I read on SCOTUS history was this one:
Remember: “I disagree with his decisions,” isn’t the same as “he is corrupt.” A SCOTUS can make terrible decisions that we disagree with and which we think are factually wrong. That is not the definition of “corrupt.” Playing politics is different from having political views.
From my favorite dictionary, the New Oxford American. (Everyone has a favorite dictionary, right? Or am I a nerd?)
Careful with words like “corruption.” Always use words precisely. It means dishonest or fraudulent. If going against precedent is “corrupt” what will you say if a future Court overrules Citizens United? Using “corrupt” to mean “I don’t like it” is dangerous.
Applying the word “corruption” to decisions we don’t like undercuts democratic institutions (which means undermines democracy).
Going against precedent is not necessarily bad. Brown v. Board of Education (the 1954 case that desegregated the schools) went against the established Supreme Court precedent of Plessy v. Ferguson (1896), which held that “separate is never equal,” and directly overruled Plessy v. Ferguson. Plessy (The 1897case that held segregation legal) was wrongly decided. It needed to be overturned. Occasionally, but not often, the Court overrules itself, which means setting aside precedent. So overturning precedent isn’t necessarily “corrupt.”
They are human, so of course they are influenced. They have political views. Being influenced by political views isn’t the same as being corrupt.
Congress can change the number of justices. I think that reform in that area is needed. More bluntly: Yes, I think we need more than 9, but it has to be done in a carefully. Partisan court packing would be a terrible idea. It already backfired on Franklin Delano Roosevelt. I’m pretty sure Congress can’t change the number of chief justices. The separation of powers means that the Court decides on its own rules; “Chief” implies only one.
I think a bill should add 2 justices every 4 years, until the number reaches 15 (This avoids the accusation of partisan court-packing accusation.) We’ve had 9 since the population of the US was much smaller. Now it’s too much power divided only 9 ways.
If neither party has integrity—if the Democrats start acting like Republicans—the “both sides are corrupt” people will be proven right, cynicism will set in, and you can kiss democracy goodbye. At least one side must have integrity or it’s all over.
Even a bad ruling isn’t catastrophic (of course, it depends on specific wording). Congress can pass legislation to prevent a situation like this from arising again. Trump will be voted out. Prosecutors will get his financial information. Congress can pass the necessary laws so we can be sure, ahead of time, that a president isn’t beholden to hostile foreign countries.
I imagine all my readers are geeks.
Smart is this year’s pink.
