Tag Archives: Supreme Court

Fixing The Court

If there is one word that has been over-used ever since Donald Trump emerged from whatever fetid swamp he previously inhabited, it’s “normalization.” As the administration ignores the rule of law, breaches longstanding norms, and otherwise engages in decidedly abnormal behaviors, the legacy media and national businesses and institutions have largely gone along–metaphorically shrugging their shoulders while murmuring their objections.

That normalizing isn’t new. For years, those same institutions (and to be fair, the majority of the American public) have ignored the increasingly erratic operation of many of America’s governing structures–the misuse of the filibuster, the anti-democratic effects of the Electoral College, the blatant gerrymandering, and the problematic functioning of the Supreme Court.

The Court’s current, blatantly corrupt majority has focused public attention on its erratic and partisan rulings. But for years–well before the more recent decisions that have damaged the Supreme Court’s legitimacy, scholars who study the judicial system had been sounding alarms. Most of those concerns were focused on practices that had resulted in the Supreme Court accepting review of fewer cases each year, and the fact that Justices were living much longer these days–raising the probability of judicial senility. Well before Trump, scholars were calling for various reforms, especially the imposition of term limits (most favored eighteen years–long enough to accomplish the Founders’ goal of shielding Justices from popular passions.)

The subject of Court reform has taken on new urgency, for obvious reasons, and a number of possible “fixes” await a federal Democratic trifecta. One of the most intriguing was offered by Robert Hubbell, a lawyer whose Substack I read daily. Hubbell cites a book reviewed by The Guardian, in which legal scholars argue that the Court has “so delegitimized itself that nothing short of truly radical reform will save democracy.”

As Hubbell writes,

If we do not act boldly and quickly when we next have the chance, the damage Trump has inflicted on the DOJ and the Supreme Court may last a generation. Expand the number of justices to the point that the reactionary majority is impotent, and then begin a three-year plan to reverse every lawless, racist, anti-democratic decision issued by the Roberts Court.

Expansion of the Court, while controversial, is a common recommendation. What isn’t common is another proposal, which I found both fascinating and persuasive-“to split the Supreme Court into two divisions—one that hears cases within the “original jurisdiction” of the Court, and one that hears cases in the appellate jurisdiction of the Court.” That would allow “the assignment of “senior” justices to cases that are almost never presented to the Court—”so-called cases of original jurisdiction involving (e.g.) disputes between princes and ambassadors.”

Hubbell quotes an article from Daily Kos describing the plan:

We will need Congress to pass a new law that pushes the older justices aside and ties them up handling cases that don’t mean much to the American people.

The new law would say, “Justices of the Supreme Court who have served for 15 years or more shall be assigned to Division A of the court.

Division A will hear all cases affecting ambassadors, other public ministers and consuls;—all cases of admiralty and maritime jurisdiction . . . (These are cases that the existing Supreme Court now hears with “original jurisdiction.” It means the Supreme Court handles these cases from beginning to end with no trials in the lower courts.)

The statute should go on to say, “Division B shall be made up of justices who have served less than 15 years on the Supreme Court. After the year 2028, the president may appoint additional justices to this body . . . .

Survey research confirms that public opinion of the Court is at historic lows. A majority of Americans–and a significant majority of the legal profession– see the current Court as an overtly politicised body with significant ethics issues. Its unprecedented use of the “shadow docket” has unsettled both litigants and judges on the lower courts. And there is widespread disapproval of this Court’s consistent disregard for precedent and its dangerous undermining of Separation of Powers in order to empower our would-be king.

As the Editorial Board of the New York Times recently wrote, the lower courts “have responded heroically to Mr. Trump’s ill-founded efforts to centralize power and weaken democracy.” District and appellate courts have blocked Trump policies hundreds of times this year. “In many of those instances, however, the Supreme Court later overruled the lower courts, allowing Mr. Trump’s power grabs. It did so almost entirely on its emergency docket..”

Normalizing this rogue Court–failing to check its excesses–would neuter the Constitution and jettison the rule of law. We can argue about the details, but reform is essential.

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Legal Nostalgia

A former student recently needed a copy of the syllabus I’d used in her graduate Law and Policy class back in 2010. When I reviewed it, I was struck by the changes effected by Trump, MAGA, and our current, corrupt Supreme Court majority. I became positively nostalgic for the legal environment of my time in the classrooom–nostalgic for the “black-letter law” and for precedents that were considered settled by my cohort of lawyers and law professors.

In that syllabus, I explained the course as follows:

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This course will examine the response of the American legal system, with its historic commitment to individual liberty and autonomy, to the growth of the administrative state and to an increasingly complex social environment characterized by pluralism and professional differentiation. We will discuss conflicting visions of American government and different approaches to public administration, and consider how those differences have affected the formation and implementation of public policy within our constitutional framework. Throughout, we will consider the constitutional and ethical responsibilities of public service—the origins of those responsibilities and their contemporary application.

While relatively few people will become public officials or public managers, all Americans are citizens, and most citizens will participate in the selection of public officials and will take positions on the policy issues of the day. Accordingly, this course is intended to introduce all students to the constituent documents that constrain public action and frame policy choices in the American system. These explorations will inevitably implicate political (although not necessarily partisan) beliefs about the proper role of the state, the health of civil society, and the operation of the market. To the extent possible, these theoretical and philosophical beliefs will be made explicit and their consequences for policy and public sector behavior examined. The goal is to help students understand why certain policy prescriptions and/or public actions attract or repel certain constituencies, and to recognize the ways in which these deeply held normative differences impact our ability to forge consensus around issues of public concern.

In the course of these inquiries, we will consider the implications of the accelerating pace of social change on issues of governance: globalization, especially as it affects considerations of legal jurisdiction; the increasing interdependence of nations, states, and local governmental units; the blurring of boundaries between government, for-profit and nonprofit organizations, and the effect of that blurring upon constitutional accountability; the role of technology; and the various challenges to law and public management posed by change and diversity, including the  impact and importance of competing value structures to the formation of law and policy.

By the end of the semester, students should be able to recognize legal and constitutional constraints on public service and policy formation, and to identify areas where public policy or administration crosses permissible boundaries. They should be able to recognize and articulate the impact of law and legal premises on culture and value formation, and to understand and describe the complex interrelation that results.

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During my years on the faculty teaching law and policy, it never occurred to me that I would live in an America where a President and virtually everyone in his administration would find the foregoing paragraphs incomprehensible–where individuals in positions of authority would reject–indeed, be unfamiliar with– the very concept of Constitutional restraints, let alone the existence and importance of civil society and/or competing arguments about the proper role of government.

I certainly wouldn’t have anticipated that so many of the ambitious politicians serving in the House and Senate–men and women presumably concerned for the national interest– would neuter themselves in slavish submission to a man whose ignorance of government and policy and whose intellectual and moral deficits were impossible to ignore even before the emergence of unmistakable dementia.

I would have rejected as fanciful the notion that a duly constituted United States Supreme Court would substitute partisan ideology and Christian nationalism for the rule of law, upending years of settled precedents and thoughtful, considered jurisprudence, not to mention the Separation of Powers that lies at the very heart of our constitutional architecture.

And yet here we are.

Forgive this somewhat whiney post, but coming across my old syllabus has made me nostalgic for the legal world I once inhabited. It wasn’t perfect, but it was infinitely preferable to our current reality, and we need to recover, reinstate, and improve it.

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Ignoring The Obvious

America’s “legacy media” continues to downplay–or ignore–two of the most obvious sources of our current democratic crisis: Trump’s manifest mental disorders, and the undeniable corruption of the Supreme Court’s current majority. Our “papers of record”–the New York Times and the Washington Post–continue to normalize behaviors that are decidedly abnormal; they are aided and abetted by network news reports that carefully avoid even the implication that Trump’s behavior is “unusual” or that the Supreme Court’s majority is laying waste to its own jurisprudence.

There are, of course, independent newsletters and Internet sites that point to these realities, but those information sources are largely singing to the choir–Americans have long since sorted ourselves into audiences for “information” that panders to our preferred worldviews. As a result, MAGA folks are highly unlikely to have encountered the multiple psychiatric evaluations of Donald Trump–and equally unlikely to understand the radical extremism of the high Court’s majority.

One of my cousins is a cardiologist with a longstanding interest in psychiatry. He recently shared with me a column he’d written for his local newspapers, in which he reported on published psychiatric diagnoses of our demented President. I was especially interested in one published warning titled “Donald Trump, Like Hitler, is a Psychopath.”

Dodes warns that “this constitutes the most dangerous of all mental disorders, since it is the only psychological condition in which behaving in a morally reprehensible way is an essential part of its nature.” Manifestations of this disorder include the intentional creation of harm to others without guilt or remorse, for personal gain or self-gratification, which includes the sadistic pleasure of wreaking revenge against imagined enemies. Psychopaths cannot be reasoned out of their beliefs or their behavior, because they are unable to comprehend that others have value, or the concept of questioning themselves. The fact that Donald Trump has the most dangerous form of this disorder has two long-term consequences: It means that he is never going to stop intentionally harming others for his personal benefit, and it means that he will become worse over time. 

Basically, the psychiatric community has concluded that “Trump lacks the ability to listen to reason and draw conclusions from facts.” (As a frame of reference, the average score for psychopathy for someone in the general population is 5; the average for felons in a maximum-security prison is 22. Experts give Trump an average score of 34.) Add to that the fact that Trump is manifesting numerous, unmistakable and increasing signs of dementia, and the danger becomes too obvious to ignore–unless, of course, you are a member of the traditional news media.

If we had a properly functioning Supreme Court, Trump’s ability to destroy our government might be slowed. But we don’t have such a Court, a fact that Josh Marshall–the eminently moderate and reasonable editor of Talking Points Memo–recently addressed in a column titled “There is no Democratic Future without Supreme Court Reform.”

Marshall noted that–in the absence of Court reform– even a Democratic trifecta taking control and passing laws supportive of democracy, separation of powers and the rule of law wouldn’t be sufficient to solve the underlying problem, which is that a substantial minority of Americans really do favor autocracy. (What he didn’t say–and I will–is that what they favor is a White Christian autocracy.)

Any repairs would be at risk the moment Republicans were once again in control.

The simple truth is that none of the laws that are essential for reinforcing the federal system against Trumpist attack would survive the scrutiny of the current Republican court majority as soon as there is another Republican president. Most would be overruled much sooner because they would, like an anti-gerrymandering law, place limits on Republican states. You cannot consider the last three to four years and doubt any of this. And what follows from that is that no plan to recover from or even seriously battle with Trumpism can have any chance of success unless reforming the Supreme Court is the first order of business. The dire corruption of the Republican majority governs everything.

I agree. But the people who really need to understand what the mental health experts and constitutional scholars are telling us are unlikely to encounter discussion of these issues unless traditional mass media sources address them. The consolidation of media ownership by America’s plutocrats makes it very unlikely that we will see those sources engage in the journalism we need–a journalism that reports the obvious.

Talk about your perfect storm….

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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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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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