In the three-plus years that Donald Trump has occupied the Oval Office–I deliberately didn’t say “has been President” because in any rational sense, he has not fulfilled that function–longstanding norms of American governance have been turned upside down.
Nowhere have the deviations from expectations been more worrisome than in the courts.
For years, legal scholars have debated whether this or that issue should be settled through litigation or by electoral politics. But I am aware of no credible argument that the courts should be divested of their independence and turned into supine tools of the executive branch.
Our idiot President recently called upon Supreme Court justices who disagree with him to recuse themselves–displaying not only his trademark contempt for constitutional checks and balances, but his embarrassing ignorance of American constitutionalism. That contempt and ignorance would not ordinarily be worthy of note–every day, the insane tweets and verbal diarrhea bear ample witness to both–except for a case that is making its way to the Supreme Court.
A recent article by Nancy LeTourneau at Washington Monthly pointed to the disquieting reason for Trump’s unprecedented assault on the Supremes. She begins her analysis by pointing to a truly telling statistic:
Trump administration’s incompetence has led to an abysmal record in the courts. Whereas previous administrations prevailed in the courts 80 percent of the time, this president has failed in over 90 percent of the cases his administration has argued.
As she notes, the Trump administration’s response to these failures has been to appeal directly to the Supreme Court–to ask the Court to expedite emergency relief from the injunctions of the lower courts. Le Tourneau quotes one legal scholar to the effect that Trump has gone to the Supreme Court with such a request 24 times in less than three years– compared to a total of eight such requests during the 16 years of the George W. Bush and Obama administration’s combined.
Trump has no understanding of the legitimacy concerns raised by such petitions, of course. He actually believes that any criticism of him or his administration should be grounds for recusal, criticism and vilification. And he has other concerns as well.
The reason Trump is on the attack against liberal Supreme Court justices probably has more to do with a case that is being made against Justice Clarence Thomas. As we’ve seen, the president is in the midst of a purge of federal employees who don’t demonstrate enough loyalty to him. Jonathan Swan reported that Ginni Thomas—the wife of Clarence Thomas—has been deeply involved in lobbying on behalf of a purge, providing the administration with lists of who needs to go as well as potential replacements.
In response, there have been calls for Thomas to recuse himself on matters related to Trump and his administration. Trump’s call for Sotomayor and Ginsberg to recuse themselves is not only a way to further politicize the Supreme Court; it also provides his media enablers with a distraction from the issues surrounding Thomas and the ability to pretend that both sides do it.
All of these issues have prompted Trump’s defensive and unPresidential behavior. But even more significant is a case that could require him to release his tax returns.
From everything we’ve seen, that is the hill that this president is prepared to defend at all costs. And according to CNN, the latest dissent issued by Sotomayor could indicate that tensions are rising as the justices consider these major cases.
Here, then, is a critical test of the Court’s independence. Will Trump’s appointees behave like the grateful tools he clearly believes they are? Will they demonstrate allegiance to Trump, or to the Constitution?
The answer to that question will tell us whether we retain a system based–however insecurely–on the rule of law.
21 thoughts on “An Important Test For The Court”
Based on their record so far, four of the five conservative justices have no understanding of the role of the Court. They seem to agree with Trump that everything involves power and who has it. And the Chief Justice seems to waffle from time to time, hopping from the conservatives to the liberals, but not often enough.
Justice Clarence Thomas and his wife Ginni would have given Mr. and Mrs. John Mitchell a run for their money if they were all in a contest to see who could be the worst public servant and his spouse. Of course for laughs, no one will ever surpass Martha Mitchell.
While appealing to the Supreme Court 3x as often as Obama and Bush combined seems like another example of Trump judicial failure, it’s probably not a bad plan. He can’t get anything through (see the aforementioned 90% failure rate), but since he got the conservative supreme court he wanted – you might as well have your friends fix your problems and not worry about those lower courts.
I may not be recalling correctly, but it seems to me that in past cases, setting aside a lower court stay meant that the lower court decision was obviously flawed and would most likely be overruled when the case was finally decided. That is not the case today. SCOTUS is granting the Administration’s motions far too often, even when it is painfully clear that the flaw in logic is in 45’s case.
I have a somewhat different look at what Trump is trying to do. He has neutered DOJ with Barr, neutered the Senate with McConnell, and has thus insulated himself against prosecution (based on a suspect DOJ rule) and struck a blow against the Separation of Powers Clause. Now he wishes to (via appointment and criticism of sitting judges and justices) expand his dictatorial reach to and through Article III of the Constitution by adding them to his neutering by threat and insult exercises, thus completing his power grab and setting the stage for dictatorship where he as Big Brother IS the state.
Last night’s Democratic primary results give me hope that his attempts to reject democracy and install authoritarianism will be rejected this fall – but we must persevere against the forces of division and Trump vitriol during the interim in the interests of a continuation of our hard won democracy – which we will.
“…..thus completing his power grab and SETTING THE STAGE for DICTATORSHIP where he as Big Brother IS the state.”
” …..but we must PERSEVERE against the forces of division and Trump vitriol DURING THE INTERIM in the interests of a continuation of our hard won democracy – which we will.”
If WE don’t do that, YOU better not bet all of your $$$ that there will be an election in November.
“Here, then, is a critical test of the Court’s independence. Will Trump’s appointees behave like the grateful tools he clearly believes they are? Will they demonstrate allegiance to Trump, or to the Constitution?” Answer: Yes, they will show fealty to the yellow muskrat. No, they will ignore the Constitution.
The irony here is that those Federalist Society judges who allegedly so revere the Constitution will happily bend over for this gangster administration and finish shredding our democracy. As I’ve been kvetching all along, the Federalist Society produces gutless ideologues without a shred of integrity. Thomas and his misguided spouse are perfect examples of the absolute corruption in the court. Thomas is probably still playing payback for his embarrassment at his confirmation hearings….which the compliant Republicans and Democrats finally allowed.
History is like a string of pearls with each “jewel” telling its own story and contributing to the length and quality of the history. Ever since Reagan/Regan took over the soul of American politics, our pearls of history have become darker, dumber and more corrupt. Trump is the worst symptom, so far, of how far we’ve allowed ourselves to fall.
My concern is the courts now continually saying that plaintiffs against the Administration have “no standing” and rejecting the cases, ducking the issues.
“Ever since Reagan/Regan took over the soul of American politics, our pearls of history have become darker, dumber and more corrupt. Trump is the worst symptom, so far, of how far we’ve allowed ourselves to fall.”
Chapter 3-The Suicide of the Old Order of “The Revolution of Nihilism: Warning to the West” by Hermann Rauschning (Alliance Book Corporation, New York, 1939) p. 115-16:
“National Socialism must continue on its way to the end, or until a STRONGER will meets it. All else is ILLUSION or DECEIT. There will be no abatement of its revolutionary fire; but it will throw overboard all ideological CAMOUFLAGE of which it makes use at present. It will do so with such brutal openness that even the most nationalist critic will note the fact.”
“The consciousness of the loss of liberty poisons and destroys the CHARACTER. A nation that falls into bondage and into the clutches of terrorism loses all strength of character. It also loses its productive regenerative powers. No one can forsee what a nation will passively accept in such conditions. We do not know what surprises the future may have in store for us in this respect. The spiritual and moral forces in a nation are crippled. Everyone knows the simple but amazing trick of fettering a fowl to a spot by drawing a chalk line around it. A similar enchanter’s circle keeps the German nation in bondage. It is chained by auto-suggestion, not by the power of its new rulers or the vast armory of terrorist means in their possession. One day the German nation will beyond doubt be startled out of the ban by some shock. Meanwhile the poison of thraldom goes on working. It not only destroys the character; the nation rots inwardly—a tree that will long stand in majesty, deceiving the inexpert, but rotten within. This age with its frantic tempo, knows nothing of century-long processes like the decay of Hellenism or the decline of Rome. A few years have suffered to produce the signs of RELAXING ENERGIES
and FAILING INITIATIVE.”
This is what is in store for us if Trump is not neutralized before the November election. He and his advisors are using a NAZI PLAYBOOK and it has been working SO FAR.
Great reference. Trump’s use of the courts and their pathetic compliance to his will is EXACTLY what Hitler did to persecute his enemies, both real and perceived….and the Jews, of course. Today’s Jews are Mexicans. Trump is a psychopath, and so sees demons everywhere.
Then Gorsuch and Kavanaugh should recuse themselves as well when hearing trump cases.
My bet is that 45’s appointees will ignore the Constitution and side with him.
Theresa Bowers: Let’s not forget Mitch McConnell and his wife Elaine Chao.
We know in one sense The Trumpet is not too bright. It is a tremendous mistake to think he is stupid. As a Con-Man he is an expert at manipulating the system and his loyal Trumpter followers to his advantage. The Right Wing Reactionary Evangelical Republican Party was just waiting for the Male Authoritarian Macho Leader to take over. Bush the Elder and Younger were still a part of the Elite and did not fit what the GOP Base wanted in terms of personality.
The GOP since the 1960’s and 1970s’ has been the Party of Fear, it has only been distilled further. The GOP fears people of color, gays, or some one will try to take their guns and bibles away, etc. The Trumpet has energized the GOP Base with fear. The Trumpet has super charged the Fear.
It is not difficult for the Trumpet to find people to appoint that will be loyal to him. Add in McConnell to push through appointees, and you have the creeping power of fealty to the person of The Trumpet, rather than the Law.
There will those grifters like Mayor Rudy and others who sense the opportunity to make some Big Bucks along the way, picking up the flotsam and jetsam of a shattered system.
Without being Pollyanish and straining the bounds of credulity, let’s consider the possibility that the right wing judges Trump and McConnell have benched may perhaps be slightly less right wing when the current president is history and whose tweets carry no enforcement mechanisms. Perhaps (and I emphasize perhaps) with less twitter and more constitutional history and regard for stare decisis such jurists (or some of them) will finally come to recognize that Trump is trying to reverse Marbury in favor of Big Brother treatment. Perhaps.
“Trump administration’s incompetence has led to an abysmal record in the courts. Whereas previous administrations prevailed in the courts 80 percent of the time, this president has failed in over 90 percent of the cases his administration has argued.”
Thank God for this!!!!!!!!!!!!!!!!!!!!
“The Right Wing Reactionary Evangelical Republican Party was just waiting for the Male Authoritarian Macho Leader to take over. Bush the Elder and Younger were still a part of the Elite and did not fit what the GOP Base wanted in terms of personality.”
Absolutely right. To be sure, Jeb Bush didn’t fit into the right mode either.
“Trump is a psychopath, and so sees demons everywhere.”
You’re absolutely right. Let’s keep it simple. How do we tackle out psychopathic President in the weeks to come? We ORGANIZE into an effective countervailing force, a new “BLUE OCEAN FORCE,” that can lead us in a direction that the ADL, SPLC, and N.A.A.C.P was not equipped to do.
I’m trying to be gracious in my old age.
Take a good look at “Blue Ocean Strategy, Expanded Edition: How to Create Uncontested Market Space and Make the Competition Irrelevant” by W. Chan Kim and Renee Mauborgne (Harvard Business Review Press, Boston, Massachusetts, 2015) p. xiii:
“Blue Ocean Strategy breaks from the stranglehold of competition [ADL, SPLC, NAACP et al]. At the books core is the notion of a shift from competing with new market space and hence making the competition irrelevant…..In this way, blue ocean strategy makes sense of the strategic paradox many organizations face: the more they focus on coping with the competition, and striving to match and beat their advantages, the more they look like the competition, to which BLUE OCEAN STRATEGY would respond, stop looking to the competition.
Value innovate and let the competition WORRY ABOUT YOU.”
Neither the ADL, the SPLC, or the NAACP et al can match-up with Trump and his far-right/religious right supporters. They’re competing among themselves. That’s not the case with P.E.I.S. [PEACE] Systems.
We’ve continued to successfully, neutralize the oligarchy supporting the far-right/religious right for over 40 years. Unfortunately, that’s the best you can do short of a revolution.
A little light in the darkness from the German past:
“The dictatorship will be overcome without doctrine—not in the nihilist sense but the reverse, the readiness to accept and incorporate all that is constructive and creative. There is beginning to grow up what I might call the ETHICAL FRONDE [Front]. Against this fronde the totalitarian policy of National Socialism will come to grief. A state, a society, a nation, even the smallest community has no lasting quality if it is without an ethical basis of nihilism, but it destroys its own foundation in proportion as its principles become general among the masses. The fronde that will become dangerous to the dictatorship is not a monarchist or Conservative one, one of the workers or the middle classes, one of the soldiers or patriots or of youth; it is an ETHICAL REVULSION, common to all these groups…..” p. 117-8
“The Revolution of Nihilism: Warning to the West” by Hermann Rauschning (Alliance Book Corporation, New York, 1939).
There were other exceptional Germans during the Nazi- Era, such men as Ernst Cassirer, Dietrich Bonhoeffer, Hans Oster, Willie Brandt, Ernst Reuter, Marc Bloch, to name a FEW. We must learn from their wisdom along with their mistakes. They didn’t have the benefit of hindsight as we do. We will have no excuse for the tragedy that is now facing us all, here in America.
Correction: Insert on line 6: “A state, a society, a nation, even the smallest community, has no lasting quality if it is without an ethical basis. A totalitarian dictatorship of pure violence is possible on a basis of nihilism, but it destroys its own foundation in proportion as its principles become general among the masses.”
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