Category Archives: Constitution

Real Judges Judge The Supreme Court

Those of us who follow the courts are seeing something unusual. District and appellate federal court judges are criticising a Supreme Court that has lost its constitutional moorings. They are mostly–but not always– expressing those criticisms in civil and restrained language, but the fact that they are publicly criticising at all is really unprecedented. 

Much of the criticism has focused on the Court’s use of its Shadow Docket to empower the Trump administration without bothering to provide legal analyses explaining why the Court is ignoring many of its own long-time precedents. In a recent New York Times article, federal Judges warned of a ‘Judicial crisis’  they attributed to the Supreme Court’s string of opaque Emergency Orders. According to the report, “dozens” of judges shared “concerns about risks to the courts’ legitimacy” as a result of these orders. As the Times noted,

The striking and highly unusual critique of the nation’s highest court from lower court judges reveals the degree to which litigation over Mr. Trump’s agenda has created strains in the federal judicial system.

Other critiques have centered upon the Court’s disregard for what had long been considered binding precedent. I have previously shared widespread concerns sparked by the Dobbs decision–a deeply dishonest analysis that not only overruled the fifty-year precedent established in Roe v. Wade, but called into question the judicial doctrine of Substantive Due Process–a doctrine that restrains government intrusion into citizens’ individual liberties. 

Dobbs was only one example of this Court’s willingness to disregard the foundational separation of church and state, a process that a Hawaiian Judge recently criticised in a scathing opinion. (You really need to read his entire, eloquent screed.)

The Roberts Court casually dismisses the lessons of American and world history, the warnings of prominent early Americans, and the judiciary’s storied legal minds. Bad things happen unless government and religion are completely separated. The Court ditches neutrality and boosts accommodation over the wall. It flirts with the true harms the framers foresaw – coercion, exclusion, and civil strife. It invites state involvement with religion. And it exposes minority faiths and nonbelievers to majoritarian impulses. A snap of a few fingers and accommodation became a constitutional imperative. “[T]he Court leads us to a place where separation of church and state becomes a constitutional violation.” Carson v. Makin, 596 U.S. 767, 810 (2022) (Sotomayor, J., dissenting). Under the Court’s redesign, the Free Exercise Clause backspaced the Constitution’s first words.

The Court’s makeover happened with little mention of the Establishment Clause or Everson. Plus, the Court benched its go-to interpretive method. Suddenly, payments from the public treasury flow to religious institutions to fund religious exercise. The First Amendment had told Americans that public resources can’t support religious activity. For centuries. Yet “[w]hat a difference five years makes” to a hurried Court. 

In contrast to our rogue Supreme Court, the lower courts have overwhelmingly upheld traditional constitutional principles. (An excellent example is this opinion, rendered by a Massachusetts District Court in a lawsuit brought by the AAUP, Harvard and others.) At least one organization that tracks these lawsuits has found that the administration has lost 92% of lower court suits.

Interestingly, an analysis done by a researcher for the libertarian Niskanen Center found that during Trump’s first term, Republican-appointed judges had ruled for him more frequently than their more liberal counterparts, but that this time, those ideological preferences have disappeared. Not only have a huge number of nationwide injunctions against Trump’s unconstitutional efforts been put in place by the lower courts, but the ideological divide has disappeared.   Republican judges–including those appointed by Trump– are ruling against the administration at the same rate as more liberal judges. 

Niskanen’s researcher found that lower courts imposed injunctions in some 90% of the cases–and that legal precedents had clearly required that result. Nevertheless, the Supreme Court has ruled for the administration almost without exception. As the researcher concluded, 

It’s hard to draw any conclusion other than the Supreme Court is doing whatever it can without going too far to advance the broader efforts, especially when it comes to dismantling the existing constitutional order. It’s really quite striking…theSupreme Court has been extremely, extremely, I would say, engaged in helping the administration out in any place it can. And it’s created, there was this article recently just talking about the Civil War within the judiciary. It’s created a lot of tension between the lower course and the Supreme Court as a result because their rulings are basically getting nullified in a way that they had not experienced in the past.

Lower court judges have raised the alarm. It’s past time to address the obvious corruption of the Supreme Court.

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I Told You So

Who really hates America?

In the run-up to No Kings Day, Republican leaders hysterically described participants as terrorists–as people who “hate America.” Those charges were never particularly effective; the first No Kings protest had brought out a cross-section of citizens who very clearly loved the America of the Constitution and Bill of Rights, and who were prepared to defend it against the real “enemy within.” Grandmothers and veterans joined young and middle-aged people in an affirmance of genuine patriotism.

If there was any confusion about who loves and who hates the America envisioned by the Founders, it came just a couple of days before the second No Kings Day, in an expose from Politico.

Here’s the lede:

Leaders of Young Republican groups throughout the country worried what would happen if their Telegram chat ever got leaked, but they kept typing anyway.

They referred to Black people as monkeys and “the watermelon people” and mused about putting their political opponents in gas chambers. They talked about raping their enemies and driving them to suicide and lauded Republicans who they believed support slavery.

Politico obtained 2,900 pages of Telegram chats–representing 28,000 messages– reflecting conversations among the leaders of national Young Republican groups. The chats  spanned more than seven months, and included Young Republicans from New York, Kansas, Arizona and Vermont. As the report summed up the discovery, the contents offered “an unfiltered look at how a new generation of GOP activists talk when they think no one is listening.”

And the way they talk is both horrifying and profoundly unAmerican.

Together, the messages reveal a culture where racist, antisemitic and violent rhetoric circulate freely — and where the Trump-era loosening of political norms has made such talk feel less taboo among those positioning themselves as the party’s next leaders…

The group chat members spoke freely about the pressure to cow to Trump to avoid being called a RINO, the love of Nazis within their party’s right wing and the president’s alleged work to suppress documents related to wealthy financier Jeffrey Epstein’s child sex crimes.

As Politico pointed out, the disgusting rhetoric employed by these Young Republican “leaders” reflects a widespread coarsening of political discourse and the increasing use of incendiary and racially offensive tropes. That coarsening comes straight from the top. The article referenced Trump’s post of an artificial intelligence-generated video portraying House Minority Leader Hakeem Jeffries in a sombrero, while Senate Minority Leader Chuck Schumer proposed trading free health care for immigrant votes. Offensive as that post was, it was only the latest of a long string of repellant social media outbursts from the senile and wildly unPresidential occupant of the Oval Office.

In his 2024 campaign, Trump spread false reports of Haitian migrants eating pets and, at one of his rallies, welcomed comedian Tony Hinchcliffe, who called Puerto Rico a “floating island of garbage” and joked about Black people “carving watermelons” on Halloween.

As the article quite accurately notes, the chat rhetoric, which spared few minority groups, essentially mirrored a number of popular conservative political commentators, podcasters and comedians, all of whom have participated in the erosion of what was previously considered acceptable discourse. It quoted a political science professor who attributed the increasing use of racist and anti-Semitic rhetoric to Trump’s “persistent use of hostile, often inflammatory language.”

In one astonishing exchange, a suggestion that they tie an opponent to neo-Nazi groups was discarded because participants noted that it might hurt more than help–because such ties would be viewed positively by their own voters. 

There is much, much more in the linked article, and it is sickening. It is also profoundly inconsistent with what I call the American Idea–the philosophy that permeates the Declaration of Independence, the Constitution and the Bill of Rights. It is an example–as if one were needed–of what the participants in protests like No Kings oppose.

Compare the disgusting, hateful, pro-Nazi comments in the chat (including one that “loved Hitler”) with the sentiments on the signs at the No Kings events, and draw your own conclusions about who the patriots truly are.

The Young Republicans who participated in this disgusting chat truly do hate the America that is trying to live up to its original ideals. And despite the pro-forma claims of elected Republicans trying to distance themselves from this filth, we know where they learned both the language and the sentiments.

 

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Losing The Rule Of Law

It isn’t just the loss of due process (yesterday’s lament).

The Bulwark recently published an essay comparing the rule of law to the rule of Trump which is displacing it. You will not be shocked by the article’s conclusion that the two are incompatible. Under the rule of law, for example, certain specified persons are empowered to use force on behalf of the state in specified circumstances against persons engaged in specified activities. The rule of law does authorize state violence, but only under the enumerated circumstances–and other laws restrain government officials from engaging in such activities.

Under the rule of Trump, inevitable conflicts between public safety officials and people with whom they engage become conflicts “between angels and demons.” In Trump’s mind (I use the word “mind” hesitantly), “military police are heroic patriots by virtue of being in his military police.” Criminals are people who anger or cross him, or object to Trump’s will. By definition, they are dangerous insurgents who must be rooted out.

In other words, criminals are whoever Trump says are criminals, including the invented rioters and murderers in his fanciful descriptions of the horrors of life in Blue cities–descriptions so at odds with reality that they confirm his mental derangement.

The New York Times recently interviewed  50 members of the Washington, D.C. legal establishment, men and women who had worked as high-level officials for every president since Ronald Reagan. The group was evenly split between Republicans and Democrats. All of them were appalled.

One former official who served in both Democratic and Republican administrations–including Trump’s first term–was quoted as saying “What’s happening is anathema to everything we’ve ever stood for in the Department of Justice.” There was a near consensus among the officials surveyed “that most of the guardrails inside and outside the Justice Department, which in the past counterbalanced executive power, have all but fallen away.”

The indictment of James Comey, the former F.B.I. director who was charged only after Trump fired the prosecutor who refused to do so and installed a pliant operative in his place, represents a misuse of power that several respondents said they had never expected to see in the United States.

The survey found a “collectively grim state of mind.”

All but one of the respondents rated Trump’s second term as a greater or much greater threat to the rule of law than his first term. They consistently characterized the president’s abuses of power — wielding the law to justify his wishes — as being far worse than they imagined before his re-election.

And every single one of the 50 respondents believe that Trump and his attorney general, Pam Bondi, have used the Justice Department to go after the president’s political and personal enemies and provide favors to his allies.

At the end of his first term. Trump pressured the Justice department to investigate obviously “fact-free” claims. Bill Barr, who was attorney general at the time, had been a close ally of Trump, arguably subverting DOJ independence on Trump’s behalf in several matters. But when Trump pressured him to pursue allegations that Joe Biden had won the 2020 presidential election because of voter fraud, Barr wrote in his memoir that it was an ask too far, and he resigned rather than give in. Other top officials also threatened to resign rather than use the department in a dishonest effort to overturn the election.

Because of the lawyers in the room, the safeguards held. But if such a scenario were to play out in Trump’s second term, the same result is “unthinkable,” said Peter Keisler, who was an acting attorney general under President George W. Bush.“No one in the room now will say no,” said the Justice Department official from Trump’s first term. The lesson Trump drew from his first term, the former official continued, is that the lawyers who talked him out of “bad ideas” were the wrong kind of lawyers. “The president has set it up so that the people who are there are predisposed to be loyalists who will help him do what he wants.”

The dismantling of the rule of law began immediately after Trump assumed office the second time, with his shocking grant of pardons and commutations to the Jan. 6 rioters. It has continued with innumerable other examples, many of which were enumerated in the Times article.

It was significant that all 50 respondents faulted Congress for doing little or nothing to fulfill its role of restraining the president–and a majority also faulted the rogue Supreme Court. When checks and balances no longer check and balance, autocracy flourishes. 

RIP rule of law…..

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RIP Due Process

During my tenure as a college professor, I taught graduate and undergraduate classes in Law and Public Policy through what I called a “Constitutional lens.” I was convinced–and remain convinced–that policy decisions unconnected or antagonistic to the country’s underlying legal framework are illegitimate, and that the public affairs students who would become police officers, public managers or legislators needed an education grounded in the Constitution and Bill of Rights.

When we came to the 4th and 5th (and 14th) Amendments, the lessons revolved around the purpose and definition of “due process.” I used to introduce that discussion by drawing two circles on the blackboard (or later, the whiteboard..)–one large circle, which I labeled “the 500 pound gorilla” and a much smaller one labeled “the individual.” As I would proceed to explain, due process guarantees were intended to level, to the extent possible, the mismatch between the power of the 500 pound gorilla (the government), and the resources of far less powerful individual citizens–to require the government to prove its right to deprive a citizen of either  liberty or property.

The Fourth Amendment is considered one of the due process Amendments. It requires that the government have probable cause to arrest a citizen. The courts have (until now) defined probable cause as sufficient, reasonable, articulable grounds to believe that a crime has been committed, is being committed, or will be committed, in order to justify an arrest, search, or issuance of a warrant. Hunches or suspicions aren’t sufficient–and until this year, arresting someone solely on the basis of their identity would constitute a clear violation of the Fourth Amendment.

There are three kinds of due process recognized in American jurisprudence: criminal due process, civil due process, and substantive due process. I have written extensively about the current attack on substantive due process, which limits the areas of our lives in which government can properly intervene. When it comes to criminal due process, legal scholars frequently use the phrase “fundamental fairness” to summarize the elements intended to provide an accused person with a fair hearing, including a trial overseen by an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, the chance to examine all materials relied upon by the prosecution, the right to confront and cross-examine adverse witnesses, and the right to appeal an adverse result.

In my undergraduate classes, I sometimes used a tape from an episode of “Star Trek: Deep Space Nine” (yes, I’m a nerd) to introduce due process. In that episode,  Miles O’Brien, the station’s Chief Engineer, is arrested by Cardassians (the series’ aliens) while on a vacation. The Cardassian system is the mirror opposite of ours–O’Brien isn’t told what he was accused of, his lawyer is appointed by the state to “make the case” for his eventual execution (which was scheduled before the trial began), the Judge was also the prosecutor, and so forth. My students would be reliably outraged at the obvious unfairness of that system, and that outrage led to thoughtful and productive discussions about what a truly fair trial would look like and the reasons for the multiple requirements of “due process of law.”

The current, corrupt Supreme Court is allowing the Trump administration to eviscerate those constitutional guarantees. In Noem v. Vasquez, the Court lifted a lower court injunction against patently unconstitutional arrests of people believed to be non-citizens, essentially holding that ‘looking like an immigrant’ can now be considered probable cause for stop, arrest, and detention.

It isn’t just Supreme Court rulings diametrically opposed to years of precedent.

The Prospect, among other sources,  has reported that ICE deliberately uses bureaucratic excuses and location transfers to isolate detainees both from their families and from their lawyers. Only 23 percent of defendants in immigration court even have an attorney in court to represent them. (Unlike in criminal courts, defendants in immigration court aren’t entitled to representation.) But those who do have attorneys are struggling to connect with them. The Prospect report documents the impediments ICE has intentionally constructed to keep these detainees in situations the report describes as “punitive and desperate” and to deprive them of due process.

So here we are. We have a Supreme Court untethered to long-standing constitutional guarantees, and a federal agency committed to denying their indiscriminate targets anything resembling fundamental fairness.

We’ve unleashed the 500-pound gorilla. I’m glad I’m no longer teaching….

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The Label Is Wrong

Several media outlets recently reported on a Gallup poll finding that forty-three percent of Americans think the current Supreme Court is “too conservative.” Excuse me, but that finding is an example of a fundamental misperception that infests current American debates, and keeps our political arguments unilluminating and unproductive.

The current Supreme Court is many things, but conservative is certainly not one of them. Indeed, some of the most trenchant criticisms of the entirely corrupt Court majority have come from jurists and scholars with unimpeachably conservative bona fides. For example, J. Michael Luttig–a conservative icon  and former judge who consistently issued very conservative opinions when he was on the bench– called the Court’s bestowal of immunity for “official acts” of the President “irreconcilable with America’s democracy, the Constitution, and the rule of law.” Legal scholars, including a number of conservatives, have argued that decisions rendered by the current majority break with centuries of understanding, lack textual support, and undermine accountability.

Several conservatives have warned that the Court is legitimizing a “kingship” rather than a presidency. 

The Court’s unprecedented use of the Shadow Docket–historically a mechanism reserved for matters requiring an urgent response–has drawn criticism from across the ideological spectrum. The Court’s majority has used the Docket to issue decisions that lack the sort of legal analysis that lower courts rely upon for guidance, and has issued those decisions without the benefit of briefing or argumentation, lending credibility to the impression that they are operating via prejudice rather than analysis.

In a string of unexplained decisions utterly inconsistent with precedent, the majority has eroded the independence of previously independent agencies and commissions. It has allowed Trump to withhold funds appropriated by Congress, despite the fact that the Constitution explicitly and exclusively grants funding decisions to the legislative branch. It has overturned the longstanding deference of the judicial branch to agency understandings of their own regulations, empowering judges to determine highly technical matters; the majority’s “religious liberty” decisions have significantly eroded the First Amendment’s separation of church and state in favor of a performative and illiberal Christianity, and–perhaps most shocking of all– it has allowed ICE to ignore the probable cause requirement of the Fourth Amendment.

The list goes on.

Words have meanings, or at least they should. A truly conservative Court follows–conserves–legal precedent unless faced with formidable evidence that the precedent is no longer consistent with modern realities. Stare decisis and respect for legal predictability have long been lodestars of the judiciary, including–indeed, especially–conservative members of that judiciary. Evidence of such respect is nowhere to be seen in the Roberts Court; for years, Clarence Thomas has signaled his desire to overturn decisions with which he personally disagrees, and Samuel Alito gave a metaphorical finger to both individual liberty and fifty years of precedent when he authored the Dobbs decision.

Conservatism has been defined as a philosophy of preservation and prudence; conservatives value continuity, social stability, and gradual evolution rather than radical change. Conservatives prioritize respect for institutions, the rule of law and moral and cultural traditions. In contrast, reactionary far right ideologies are fixated on a desire to “reclaim” a mythic past. Reactionaries reject checks and balances; they embrace nativism and define belonging in racial and religious terms rather than civic ones, and they detest the pluralism that defines today’s America.

 

Where conservatism sees order as compatible with liberty, reactionary and populist far-right movements define order as the suppression of difference.

 

The problem with labeling our reactionary Court as conservative is that such a label obscures reality. It’s akin to the misuse of other labels like Left-wing and socialism, but it’s arguably more dangerous, because it makes a very real threat–an ahistorical judicial deviation from the rule of law in favor of a very unAmerican authoritarianism– seem like a normal part of America’s ever-shifting political environment. We’ve always had courts and political parties that are properly understood to be more conservative or more liberal, but by mis-labeling this radical Supreme Court as “conservative,” we minimize the extent to which it has deviated from the political and constitutional norms to which both liberal and genuinely conservative courts have adhered.

 

If this Court was truly conservative, America wouldn’t be in the midst of an authoritarian coup.

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