I’ve been on the email list of the Brookings Institution for a number of years. It was–and is– an excellent source of thoughtful, balanced policy analyses, and it provided me with valuable background for my classes when I was teaching Law and Policy.
Over the years, I’ve become accustomed to the language and style of Brookings publications–very consistent with that of academic discourse and a variety of other highly credible, scholarly resources. (Not like the snark you often get here.) So I was bemused–to put it mildly– by the opening paragraphs of a recent essay.
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected.” With those chilling words an illegitimately obtained Supreme Court majority tore up the lives of Americans & the Constitution in the Dobbs opinion authored by Justice Samuel Alito. The votes for this opinion were only available because Merrick Garland was wrongly blockaded at the end of the Obama administration and Amy Coney Barrett hypocritically jammed through at the end of the Trump one.
The Alito opinion comes in the midst of congressional hearings exposing the sickness of Trump’s style of governance—Trumpery, as we term it in a new book. The Dobbs opinion also exemplifies Trumpery, and its features provide a useful framework for understanding just how bad the opinion is. The Court should be known from here on out as the Trump Court.
Perhaps the single most defining characteristic of Trumpery is its disdain for the rule of law. The Alito opinion in the Dobbs case has that in spades. A central tenet of Supreme Court jurisprudence is stare decisis, the idea that once the Supreme Court has ruled on something, it is settled law and is entitled to permanence, even if later courts may disagree with it. That is particularly true where you have a decades long established precedent like Roe.
It is certainly true that past Courts have overruled settled precedents when it has become blindingly obvious that they are unjust and/or inconsistent with contemporary science and mores–Plessy v. Ferguson and Bowers v. Hardwick come to mind. But the thrust of the quoted paragraph is accurate; until the elevation of theocratic jurists intent upon the destruction of jurisprudence equating liberty with a significant degree of personal autonomy, precedents were accorded a high level of deference.
The essay proceeded to compare the current iteration of the Supreme Court to Trump’s incessant assaults on democratic norms– assaults that the January 6th Committee hearings are meticulously documenting.
As we are being painfully reminded in the Jan. 6 hearings, that assault over time undermined and weakened the executive branch and Americans’ faith in it. Alito and the five justices who joined with him are sending the Supreme Court down that same slippery slope.
The authors make a point that I have made repeatedly in the wake of this deeply dishonest decision–it didn’t just take aim at abortion. It was a point that Justice Thomas acknowledged in his concurrence:
“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Americans’ right to contraception, to make consensual choices in the bedroom and to same-sex marriage are all up for grabs. How long before states are also free to re-criminalize premarital sex and interracial relationships?
There are other parallels: Trump was shameless, and the authors point out that–like Trump–Alito displays absolutely no embarrassment about the rampant dishonesty of his opinion, dishonesty that was necessary in order to reach a result he personally favored. Nor does this Court care about the social consequences of a predictably divisive opinion. Alito wrote “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”
Of course, concern about public reaction is one reason for the doctrine of stare decisis, which aims to avoid abruptly upsetting long-settled rules and expectations. Intensifying social divisions was also a Trumpian trademark, and as the authors note, “this opinion smacks of a similar approach.”
It’s hard to disagree with the authors’ conclusion that this decision–one of this term’s string of shocking and damaging departures from settled jurisprudence– will decimate what is left of the legitimacy of the Supreme Court.
Although it was news to Alabama’s current Senator, the U.S. has three branches of government. Unfortunately, none are currently functional.
We have a gridlocked Congress, immobilized by lawmakers putting fealty to party over loyalty to country; an Executive whose agenda is obstructed by that Congress; and now, a rogue Court disdained and distrusted by a majority of citizens.
That’s a description of a failed state.
No wonder the language employed by Brookings these days is less restrained.
31 thoughts on “The Trump Court”
If only the imprisonment of an ex-president could allow the reversal of his actions while in office…
So what can we do? I keep hearing Vote! But we need something else that actually will make a difference. Especially with the SCOTUS.
Trump, surrounding himself in a forest of American flags, make him no more believable as wanting to “Make America Great…” (cross our Again) than appearing in blackface would make him more believable as supporting the rights of Blacks. Sadly; his Vito Corleone tactics have trumped the Constitution, Congress, Senate and the Supreme Court…which until recently we believed to be our Ace. The remains of Trumpery in all branches of government are trailing along behind him like an incomplete abortion. He and his administration should by now be dead and stinking; instead it is rising above the stink as the Justice system is finding loopholes to delay, and probably prevent, his earned and deserved arrest and conviction for sedition and treason. Outing his continuing Trumpery, including what for anyone else would be Witness Tampering, is only a flash-in-the-pan bit of distracting “Breaking News”. This, like his NINETEEN sex abuse charges will be gone with the wind of political rhetoric’s hot air. Like Covid-19’s splitting off into variants and now sub-variants; Trumpery will find an out.
“We have a gridlocked Congress, immobilized by lawmakers putting fealty to party over loyalty to country; an Executive whose agenda is obstructed by that Congress; and now, a rogue Court disdained and distrusted by a majority of citizens.”
What can we do? Stand up and stand by the brave and courageous young women who worked in The White House, whom despite the threats and loss of an intended career, testified under oath and national spotlight in defiance of a self-styled emperor.
Dobbs was a “dishonest” opinion, but Roe v. Wade was an “honest” opinion? We’ll have to agree to disagree. Roe v. Wade was a policy decision dressed up as constitutional jurisprudence. To me that was a heck of a lot more intellectually dishonest than what Alito wrote in Dobbs.
Spare me time for a private observation. I absolutely have no problem with my fellow attorneys criticizing SCT justices and the legal opinions they write. But I can’t help but use this occasion to point out that our Disciplinary Commission and the Indiana Supreme Court says we attorneys don’t have the same free speech rights as non-attorneys to criticize judges (including Supreme Court justices) and the decisions they reach. NY Times v. Sullivan doesn’t apply to Indiana attorneys criticizing judges and judicial opinions. The supposed reasoning is that our criticism as attorneys undermines the respect people have for the judiciary and therefore the third branch of government has to be shielded from legal critics.
I was suspended for one month for criticizing a judge’s handling of a probate case in a private email to another attorney. (I always thought the Court should have focused more on it being private criticism, not something that was made public and which arguably could have undermined public confidence…the supposed reason that we attorneys must be treated differently according to the Court.) I was told by a Commission attorney that if you are out at lunch with another attorney and you’re speaking negatively (apparently false positive comments are allowed) about a judge to another attorney, you darn well better be able to prove your opinion about the judge is true.
Again, I have no problem with Indiana attorneys criticizing courts, including the SCT. But it also exposes the absurdity of Commission and IN SCT’s approach to punishing Indiana attorneys for judicial criticism.
Our future as a democratic republic, or what’s left of it, is in the hands of the same Trump Court and 6-7 swing (and potential swing) states some of which have legislatures under Repugnican control that have made it even MORE difficult for Dems to win statewide races than it was in 2020.
Next year, likely on or near June 30, the Trump Court will make public their decision to support the made-up the “independent state legislature doctrine, which will eliminate any checks on power of state legislators to determine how their state electors’ votes will be cast in a Presidential election. Not the state governors or courts, federal courts or POTUS.
It’s a very heavy lift to overcome and I for one don’t believe leading Dems, including President Biden, are adequately (if at all) sounding the alarm to mobilize the troops to get out the vote and save the Senate in 2022 and everything else dear to us in 2024.
So maybe Marbury v. Madison should be curtailed by Executive Order?
Paul K. Ogden; WHERE or TO WHOM did you criticize the judge that the court became aware and could take action against you? Seriously; just askin’
If it looks like a failed state, sounds like a failed state, and acts like a failed state it is a failed state.
What does one do then? “Stand up and stand by”? “Vote”? Or the lamest of them all…”When they go low, we go high”? Really? Is that it? Those are our choices?
Terry Franzman’s comment is perfect. In it, chief Justice Marshall thumbed his nose at President Jefferson and stated (his opinion) that the Court made final decisions on legal (including legislative) matters.
Brookings is in line with establishment views or should I say helps shape establishment views. Their moving to the right as the country shifts there is not surprising. Charles Koch’s goal would be to merge Brookings, Cato, and Heritage under one conceptual blueprint, but knowing these dark oligarchic forces, they will keep the three separate but just control and edit them differently.
If you want a glimpse of how these worlds collide, keep tabs on the semiconductor chip bills introduced in the Senate and President with a new version in the House. You get to see the actors/politicians working directly on solving a monumental problem in our current political reality.
The case is easily solvable with a worker-centered directive instead of the oligarch-centered one. Watching the NY Times write about it is hilarious. I can only imagine the backroom gyrations the editors go through before publication.
I would give my left arm to facilitate a televised debate over this one bill. Now, just remember this, Senator Todd Young and President Joe Biden are in agreement on this one. That tells you how hot of potato this one is today.
The court decisions and 1/6 are just distractions – superficial noise to get you looking elsewhere while the oligarchs line up outside the Treasury. 😉
Again I can only say I departed the US for a more stable democracy after the attempted coup on Jan 6th. As a disabled combat vet this pains me to no end, but I cannot nor will I stay in a country which is well on the way to becoming a banana republic.
Did we live in a functional democracy for the last half of the last century or was that not true, but we do now? I’m sure that my memory is not what it once was, but as I recall, things went quite well for the country once the threat of war was settled mid-last century, unfortunately only by war, as was true here in the middle of the previous century. What am I missing? We made progress for most of we, the people.
The right is acting ubber patriotic now about the country then, but are tearing what was down and rebuilding it, into what? A loose confederation of states with different laws and cultures and difficult to cross borders in either direction, some armed to the teeth with private militias. How is that an improvement and not like Afghanistan? What decade are they trying to reproduce or are their plans to tear down and then see what happens? Is that why they do not even pretend to have a platform?
but the masked ass is mcconnell(mcdeath). the plan is plain to see. eliminate the enemy and gain a authoritarian regime. (supported by the courts)now if the DNC had any backbone, that would be a debate between the
two/three parties. its time to ask the question,what is the trumpian end game? make a public issue now, before election…
im getting to like J Fetterman better everyday.. keep em flyin..
I think about those things the 1/6 committee hasn’t shown us yet. There is still hope. Sometimes, though I wish that Merrick Garland were as petty and small as Brett Kavanaugh. We’d all know by now if the Orange One’s skin would look good in an orange jumpsuit.
What can/should we do? It is a louder chant each day, in our country, in this blog, in my house. Feeling grim, as of 7/14 (things change every day)…
Seriously consider whether you want to live in country in ’24 run by The Former/The Florida and a GOP Senate/House/SCTUS and consider the alternatives. If you can’t, seriously consider moving to a state likely to remain “Blue” and be part of the “Blue States of America”.
With journalism dying and most folks throwing up their hands on politics and doing their best to survive and have fun, their is no US “village” to turn the boat from the iceberg.
To Terry: Perhaps Marbury should never have happened, but it did and I have always thought it was a good thing for disinterested judges to be enabled to curtail congressional and executve excesses. Trouble is, the disinterested judges these day are not disinterested (if they ever were) and have (contrary to Paul’s views) taken over the legislative and executive perogatives unto their own, and unfortunately, such jurists would be the ones who would determine whether their powers under Marbury should be limited. Not likely.
Perhaps the most chilling language in Dobbs is not the overturn of Roe and Casey but the suggestion of Thomas that other substantive holdings of the court are up on the chopping block in the near future. We have had our turns with congressional and executive dictatorship or attempts at it (see 1/6, own the libs etc.), so now it appears that the judiciary is going to take its turn. What to do?
Impeachment of the justices is not the answer, so I, reluctantly, have come out in favor of adding four new justices to that bench in order to add some constitutional balance to a court composed largely of the religious and political, a court from whose bar I resigned long ago with their decision in Bush v. Gore, which I continue to believe was wrongly decided.
To Lester: Dissolve the iceberg.
Stan once again reminds us all of his heroism in fleeing his native land. That’s precisely what the Republicans want. They don’t want, nor can they tolerate opposition. It must be clear to all people not breathing helium, by now, that FASCISM is the goal of the Republican party, not governing.
I just watched two confirming and disturbing films: “The Panama Papers” describe the world-wide hijinks of the 1% and their quest to corner all monetary systems to serve…something…something that can’t be any good for anyone but themselves. The current cornered wealth could feed every man, woman and child on the planet for years, but that would be something resembling humanitarianism. And we know that the 1% are opposed to that concept.
The other film was “#UNFIT”. It described in excruciating detail the clinical aspects of Trump’s mind. In sum, he is unfit to serve as anything because he is, as Liz Cheney describes obtusely, INSANE. The clinical terms like “malignant narcissist”, “sociopath” and “psychopath” add up to describing what most of us on this blog have been trying to fathom for years.
But perhaps the most salient part of “#UNFIT” was the extended description of the cult followers. Trump’s insanity tapped into the basal hate, fears, bigotry and ignorance of aggrieved white people who are too goddamned lazy to figure out how to make their lives worth living. The ultimate con was made ever so easy by Trump’s bombast. That’s what his followers listen to. They do NOT listen to logic, policy or anything even suggesting governance. That situation describes the perfect con, and the con man merely took advantage of it.
I’m going to re-read Sinclair Lewis’ book, “It Can’t Happen Here.” Finally, the confluence of these two movies smacked me in the face regarding the tenet of Karl Marx’s prophecy: “Capitalism will destroy itself from within.” I don’t care where heroic Stan Lightner ends up. The collapse of capitalism will be world-wide and create human chaos that only 8 billion starving dupes can display.
One thing we have no solution to is Fox entertainment’s free 24/7 Republican campaign ads. That’s a structural advantage that’s virtually impossible to overcome by solution oriented people.
Quite often, after reading Vernon’s comments, it seems there is little more to say. Thanks again Mr. Turner. I wish I could have said it half as well.
Thank you, Steve D. The turn of phrase has come naturally for me most of my adult life. The circumstances, facts and analyses of my science training helps create these little bits. Visit my website, http://www.vernturner.com for novels of more upbeat and interesting stories that actually have positive outcomes. LOL.
Yes, Stan, thanks for the upteenth + 1 reminder of your bailing out. You must be so proud. Give it a rest, please.
Pete, I don’t know about you, but I get a kick when Pete Buttigieg is on Faux News. He always seems to win the day. What we need is a dozen or so of him to show up daily to make a straightforward case for sanity and the Constitution.
Outstanding post as usual, Sheila. Last night Theodore Rokita, a shameless hussy for any type of publicity and who never passes up an opportunity to pander to the “unborn baby saving” Evangelicals, appeared on Jesse Waters’ program and promised to go after Dr. Caitlin Bernard, the I.U. Health OB-GYN who performed the abortion on the 10 year old girl. This came after Fox News declared the story “too good to be true” because it was a real-life example of the damage done by those illegitimately-present “justices” on the Trump Court. Since the abortion was legal under Indiana law at the time, the only thing Rokita could try to use as a cudgel against Dr. Bernard was to investigate whether she reported the rape to law enforcement. The rape (which happened when the girl was 9, just before she turned 10) happened in Ohio, and her mother had already reported it to law enforcement, but that wasn’t the reason for Rokita’s rampage–Fox was shown to have lied once again, Rokita is nothing but a publicity prostitute, and he used this incident as an opportunity to intimidate doctors who perform abortions, all to pander to those “unborn baby saving” Evangelicals. The mere sight of his fat face nauseates me.
He wants to investigate the doctor but no word about the rapist who was arrested!
Forgetting the actual crime, the rape of a child! Damn it!
Marbury v. Madison? Yeah, who needs that?
Trumpery is a cancer on the society, and sadly, as cancer is, in essence, one’s own body destroying itself, with the
Trumpers, being the “cells” of the society the metaphor is all too true!
Let us not, however, forget that this is also the McConnell court!
This is our age of insanity!
Would someone please tell me WHERE Stan has moved? Not that I plan on following, I am just tired of reading about this “stable democracy” without a name.
Two minor corrections –
First, as Jack Smith pointed out – It is McConnell’s court – he started before Trump was elected – Trump just furthered his agenda, viz. “keep the government out of the way of the rich and powerful, and the hell with anything else”.
Second, contrary to an old cartoon where the conservatives were granted their wish and Thomas lived as Scalia’s slave, Old Clarence will find a way to justify Loving as being a core value of the Constitution and ordained by Jesus.
Finally, anyone who tells me that the Democrats should leave the Supremes alone because of what the Republicans MIGHT do, should [expletives deleted].
The Democrats need to grow some part of their anatomy – take your pick of metaphors.
To Gerald: Re: My comment on Marbury v. Madison.
Yes, Marbury v. Madison, stare decisis has kept it in place. However this court has abandoned it and essentially legislated from the bench. The Executive Branch and the Legislative Branch being equals, have the inherent right, authority and power to push back. They must really….not a choice. If Republicans win either branch of Congress in the upcoming primaries, we will never get another opportunity.
One thing the trump era has taught me is that there is no stable democracy anywhere in this world.
I am not wasting my time/money moving out of one of the deepest red county (Scott), in the South’s finger to the north red state (Indiana)
G-d placed me here for a reason.
I’ll stay here.
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