Tag Archives: Roberts Court

RIP: The Rule Of Law

I am beginning to think that Trump has “glossies” of John Roberts and a couple of the other Justices in the majority misnamed as “conservative.” (A genuine conservative would conserve precedents–these justices are radical, and in at least two cases–Alito and Thomas–demonstrably corrupt.) 

The judges of the lower federal courts–even the ones appropriately labeled conservative–have demonstrated fidelity to the rule of law, and to stare decisis, or precedent. Judges nominated by both Democratic and Republican Presidents, judges nominated by Trump himself, have ruled against our would-be dictator over 80% of the time. They have issued well-researched, thoughtful judgments, clearly explaining the grounds of their decisions, only to be summarily over-ruled in terse, six to three Shadow Docket rulings from the Supreme Court.

Most Americans have never heard of the Court’s Shadow Docket, because–until recently–it has been used very sparingly. The shadow docket has formerly been used in Supreme Court cases requiring immediate decision–things like death penalty stays, injunctions, and other matters requiring urgency. Such urgent matters are thus decided without full briefing, oral argument, or written reasoning. When appropriately used, the Shadow Docket is a legitimate tool of Court jurisprudence, but the increased frequency of these decisions during the Trump administration has raised concerns about transparency and significantly damaged the Court’s legitimacy.  

Decisions delivered via the shadow docket lack the detailed analysis that allows lower courts to align their own reasoning with that of the Supreme Court. The increasing frequency of these  “stealth rulings” undermines the public’s understanding as well as the legal community’s ability to interpret, apply and conform.  

It isn’t just the increased frequency of Shadow Docket use. Far too many of these brief and unsettling decisions have upended longstanding Constitutional rules. Easily the most appalling was the Court’s recent gutting of the Fourth Amendment’s requirement of probable cause. In a 6-3 vote in Vasquez Perdomo v. Noem, the Supreme Court temporarily halted a LA judge’s order that barred “roving patrols” from snatching people off California streets and questioning them based on how they look, what language they speak, what work they do, or even where they happen to be.

Both a Los Angeles federal court and the 9th Circuit Court of Appeals had ruled–in detailed, persuasive decisions– that these actions clearly amounted to illegal racial profiling.

In a stinging dissent, Justice Sotomayor warned that this decision turns Latinos into second class citizens. She wrote “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”

A lawyer friend who has been both a prosecutor and a defense attorney, as well as chief of a law enforcement department and a law school professor, reacted with an anguished Facebook post. He began ” The United States of America, a nation of laws, not men, no longer exists. Today the United States Supreme Court, in a 6-3 vote, decided that immigration officers may detain people for no reason other than the color of their skin…The United States Supreme Court approving detention based upon skin color is not just the end of the rule of law, it is the end of the United States as a constitutional democracy, which comes with separation of powers and no person being beyond the law.”

He proceeded to say that he would “surrender my admission to the United States Supreme Court. The admission comes with an oath the Court no longer recognizes, and I no longer recognize it.”

I taught Law and Public Policy to university students for 21 years. Many of those students were criminal justice majors, and along with the rest of the faculty, I emphasized the constitutional imperative of basing arrests on probable cause. We warned students against detaining citizens based upon “hunches” or–worse–identity, and shared the numerous legal cases that underlined that constitutional mandate.

The Court’s decision–contrary to decades of contrary precedent and to the uncontested facts underlying the lower court rulings–a decision delivered via the inappropriate Shadow Docket, was a betrayal not only of their oath, but of America.

If this country survives as a constitutional democracy–no sure thing–the Roberts Court will take a shameful place in history alongside the January 6th insurgents. 




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Rigging The Vote, Thanks To A Rogue Court

A number of pundits have pointed out that Donald Trump is a prime example of projection; that when he accuses someone of bad behavior, it is almost always behavior in which he, himself, has engaged. His current effort to get Red states to redistrict mid-cycle is a perfect example. Ever since he lost the 2020 election to Joe Biden, Trump has insisted that he couldn’t possibly have lost “fair and square,” that the election had been rigged. So, in typical Trump fashion, he is engaging in an effort to rig the upcoming midterms.

As Josh Marshall at Talking Points Memo has recently written,

Texas Republicans are in the midst of making their state even more of a mockery of the concept of representative democracy than it already was. In an attempt to preserve the GOP’s narrow House majority in the 2026 midterms, lawmakers are tinkering with the boundaries of the state’s 38 congressional districts to create five more safe Republican seats, forcing several Democratic incumbents to seek re-election next year in districts that are suddenly, alarmingly red. Scrambling the map in this manner would ensure that in a state in which Trump earned 56 percent of the vote in 2024, Republicans would lock up 80 percent of the state’s representation in Congress for the rest of the decade.

The effort to give Republican candidates unearned advantages isn’t limited to Texas–Trump is currently leaning on other Red states, notably Florida and Indiana–to engage in the same gerrymandering, which he clearly believes will forestall a Democratic takeover of the House of Representatives. (He really shouldn’t be so confident; in a special election just last Tuesday, a Democrat won a seat in the Iowa legislature with 55% of the vote–in a district that Trump had carried by 11 points. But recognition of nuance and complexity aren’t among Trump’s very limited intellectual skills.)

As Marshall quite correctly notes, “you can draw a straight line between this frantic gerrymandering arms race and a mind-bendingly stupid decision from the U.S. Supreme Court.” That “mind-bendingly stupid decision” was a 5-4 ruling in Rucho v. Common Cause, a 2019 case in which the five Republican justices held that partisan gerrymanders are a “political question”—that is, an issue that must be left to the democratic process. “Writing for the majority, Chief Justice John Roberts explained that the Constitution yields no workable standard for determining when a given gerrymander goes too far to be legal.”

In what is, in my view, still one of the most embarrassing paragraphs to appear in the pages of the United States Reporter, Roberts wraps in Rucho by noting that the holding constrains only federal courts; Congress, he says, would remain free to enact anti-gerrymandering legislation, as would lawmakers at the state level. The argument here is that voters who are dissatisfied with corruption in the political process don’t actually need John Roberts’s help, because they can always seek redress of their grievances via the aforementioned corrupt political process. This is roughly analogous to the fire department pulling up to a burning house, attaching the hoses to fire hydrants, and then politely informing the owner that it could rain any minute.

As Marshall points out, and as I have previously written, there definitely are standards the Court might have applied. The decision was clearly partisan. Republicans control 59 of the 99 state-level legislative chambers, and both the legislature and the governorship in 24 of those states. That compares with just 15 for Democrats. Despite the fact that most Blue states have significantly larger populations than the more numerous Red states, Republicans have power over the line-drawing process in more places than the Democrats–a power that allows the GOP to win elections despite garnering fewer votes overall.

It’s hard to argue with Marshall’s conclusion that what is happening in Texas and California and elsewhere right now “demonstrates just how vapid and hollow the reasoning in Rucho always was. You do not have to have a law degree to understand that a Texas map that transforms a 56-42 advantage into a 79-21 blowout is not, in any meaningful sense, fair.”

But it isn’t just Rucho. The Roberts Court will go down in history (assuming we have a history) as a disgraceful, rogue Court in which a blatantly partisan majority enabled an autocrat and undermined the democratic process in multiple decisions contrary to years of judicial precedents.

If and when the Democrats control Congress, they need to impose term limits on the justices, and expand the Court.

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Protecting Privilege

There is very little I can add to the mountains of commentary criticizing or defending the  Supreme Court’s decision to overturn affirmative action in University admissions. I do think it is important, however, to focus on its impact, which will be almost entirely limited to colleges and universities that are considered “elite.” As several analysts have pointed out, the U.S. has somewhere between 3,500 and 5,500 colleges and all but 100 of them admit more than 50% of the students who apply. There are only about 70 that admit fewer than a third of their applicants.

In other words, the schools most Americans attend admit most of the people who apply to them.

The fact that the Court’s ruling will have a limited effect does not, of course, excuse a decision that race cannot be considered, but legacy status, recruited athlete status, and financial aid eligibility—aka  “affirmative action for Whites”– can.

Americans make competing arguments about affirmative action in college admissions: defenders point to the undeniable educational benefits of diversity in the classroom and  the persistent effects of this country’s history of racial injustice; opponents point out that perceptions of favorable treatment diminish recognition of individuals’ accomplishments, and that race is no longer a clear proxy for disadvantage (should a Black doctor’s son who attended cushy private schools have a “leg up” over a poor White applicant?)

The fact that most perceptions about admissions aren’t accurate–I’ve served on admission committees–doesn’t mean they aren’t damaging.

The Court’s decision reminded me of a long-ago discussion with a relative. She was about my age, and we both had sons who were entering college. She was incensed that one of her sons had failed to gain admission to a particular, competitive school (I no longer remember which one), and attributed his rejection to affirmative action. If there wasn’t “favoritism for ‘those people,’ she was absolutely convinced her son (who was actually pretty unimpressive) would have been accepted.

I’ve read bits and pieces of the dissents, and–as a lawyer–find them persuasive. But as we’ve seen with other decisions of this radical Court, nuanced  legal arguments rarely translate accurately into the ensuing political and social debates.

As the months pass, I may revise my current assessment of the impact of this decision, but right now, here’s what I see:

  • People like my relative will be deprived of an argument that they use to justify their (already obvious) racial grievance.
  • America’s changing demographics–a change that has already triggered the nasty expression of overt bigotries–will ensure the continued diversity of the great majority of university classrooms–especially as so many colleges are seeing fewer applicants and experiencing fiscal challenges.
  • The impact of the decision will fall almost entirely on the elite institutions that produce the most privileged members of American society. The Chief Justice’s ruling (aptly described by Justice Jackson as a “let them eat cake” decision) will protect his alma mater and other elite universities from the equalizing effects of a more diverse student body.

The truth is, those elite universities are already experiencing what has been called the “gamification” of admissions. Families with the means to do so have engaged in multiple efforts to assure their offsprings’ success, from coaches to help with essays and SAT preparation, to actual bribes that led to jail terms for some celebrity parents.

What would a fair process look like? After all, the use of race–or legacy status, or athletic prowess, or wealth–is almost always applied to a pool of applicants all of whom are eligible for admission. Arguments about merit are beside the point–these schools get many more applicants who meet or exceed their criteria than they can admit. The issue is: when you have identified 200 students who can clearly do the work, and you have room for only 100, how do you decide which ones to admit?

One of the better suggestions would substitute socio-economic status for race; given the continued structural racism of American society, Blacks should be well represented in an underprivileged cohort. (Letting more poor kids of any color into Harvard and Yale would certainly increase diversity…)

According to survey research, a majority of Americans oppose affirmative action in higher education. Much of that opposition is because people don’t understand how it actually works, but there’s no denying that a lot of it is simple racism and a defense of privilege.

Meanwhile, a rogue Court continues to eviscerate legal precedent, with consequences that will likely extend far beyond the issues of the cases being decided…

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First It Was Taney

The New Republic recently published a long but incredibly illuminating essay on the Supreme Court.It deserves to be read in its entirety.

The author, Brynn Tannehill, compared the Roberts Court to past Courts that today are widely considered to have decided important cases wrongly–beginning with the Taney Court. In 1857, that Court decided  in Dred Scott that Scott was not a free man, that no Black person could be a citizen of the United States, and that Black people were not entitled to Constitutional protections. As Tannehill says, that decision doomed the country to civil war.

Worse, Taney’s Court effectively eliminated the rights of free states to prohibit slavery on their own territory– relying on the same sort of “originalist” logic used by Justice Alito in Dobbs v. Jackson.

Roger Taney was not the only Chief Justice to preside over a retrograde Supreme Court. Following the Civil War, the Court led by Chief Justice Morrison Waite, “delivered decision after decision that ended Reconstruction.”

In United States v. Reese, the court ruled 7–2 that “racially neutral” voter suppression measures such as poll taxes, literacy tests, and the grandfather clause were constitutional. In United States v. Cruikshank, the Waite court ruled 9–0 that the federal government had no right to arrest the people responsible for the Colfax Massacre, the 1873 Louisiana riot where dozens of Black militiamen were murdered by a white mob. The Waite court also decided unanimously in Minor v. Happersett that women do not have a constitutional right to vote.I

n Elk v. Wilkins, the Waite court ruled 7–2 that being born on U.S. soil did not grant citizenship to Native Americans. The court also upheld miscegenation laws 9–0 in the 1883 case Pace v. Alabama. That same year, a majority struck down the Civil Rights Act of 1875 in The Civil Rights Cases of 1883. Later, in 1896, under Chief Justice Melville Fuller, the Supreme Court enshrined segregation via Plessy v. Ferguson, under the rubric of states’ rights.

Ironically, these decisions were framed as protective of limited government and individual liberty–as Tannehill writes, “freedom in the abstract, but only in the abstract.”

As if to drive this point home, the Roberts court ruled in Shinn v. Ramirez that it doesn’t matter if a person is innocent based on the preponderance of the evidence; so long as procedure was followed, the state can still execute people. Justice in the abstract, and only in the abstract, all over again.

Then there’s the Roberts Court.

It struck down most of the Voting Rights Act . It permitted states to strip Native Americans of their right to vote using the pretext of preventing voter fraud.  Worst of all, the court recognized that partisan gerrymandering is inconsistent with democracy, but declined to do anything about it.

The Roberts Court also seems intent on eviscerating Jefferson’s wall between church and state. It keeps finding that Christian organizations have a right to government money, as well as a “freedom”  to discriminate against LGBTQ people, Jews, and others.

This is freedom in the abstract: Even if Jews and LGBTQ people were allowed to discriminate against Christians, it would have a negligible impact on Christians compared to Christians being permitted to discriminate against groups that make up much smaller percentages of the population. It is akin to saying Christians can only shop at Kroger, and Jews can only shop at Jewish-run businesses: The harm falls disproportionately on the minority groups.

Tannehill reviews several pending cases with potential to upend federalism:

But the real Dred Scott moment will be at hand when red states begin trying to extradite people from the blue states for the crime of getting abortions, providing abortions, or providing transition-related care to transgender people. Deep blue states have been creating haven and sanctuary laws to protect women, doctors, transgender people, and parents of trans youth. Both California and Massachusetts have passed sanctuary laws that would prevent people from being extradited for seeking abortions in their states. Given that eradicating abortion and eliminating health care for trans people have become the top social policy priorities for conservatives, the reaction from powerhouses like the Heritage Foundation has been swift: They see these blue-state moves as a direct threat to their agenda.

Eventually, the Supreme Court will have to decide, are people free once they leave a state like Texas? Or do they remain property of that state forever, even if they leave?

It’s entirely possible that this Court would follow Dred Scott and allow extradition. If so, officials in the “sanctuary” states would be under heavy pressure to refuse to comply.

At that point, federalism, and the Union, are dead, as states refuse to recognize the legitimacy of court decisions, and the comparisons with the Taney court are complete.

You really need to read the entire essay.

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