So Long, America–It Was Nice Knowing You…

The New York Times summarized the rogue Supreme Court’s immunity ruling in a sentence: “the Supreme Court has extended sweeping legal protections to presidents that apply to no one else in the country.”

In other words, in the most recent of a string of appalling and unprecedented rulings, this disgraceful Court has eviscerated the essence of the rule of law: that no one is above the law. Sources close to the Rightwing extremists behind Project 2025 immediately began planning how to use the Court’s decision to help them implement their unAmerican policy agenda, and Trump immediately called for jailing his political opponents.

The Court has demonstrated the naiveté of those Republican voters who justified sticking with Trump because “there are guardrails–laws that will keep him from doing the craziest shit.” Not anymore, there aren’t.

Toto, we aren’t in Kansas anymore.

I have never been so afraid for my country. Lest you think I am over-reacting, I will turn the rest of this post over to the considered reactions of people I respect.

There were the pundits, of course, many of whom bring solid legal credentials to the discussion. I can sum up their reactions by citing to Washington Post columnist Ruth Marcus, whose opinion piece was titled “God Save Us from this Dishonorable Court” and was subtitled “An egregious, unconscionable ruling on presidential immunity from the Supreme Court.”

But the most incisive and horrified analyses came from the scholars. 

Historian Heather Cox Richardson wrote:

This is a profound change to our fundamental law—an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law….

There is no historical or legal precedent for this decision. The Declaration of Independence was a litany of complaints against King George III designed to explain why the colonists were declaring themselves free of kings; the Constitution did not provide immunity for the president, although it did for members of Congress in certain conditions, and it provided for the removal of the president for “high crimes and misdemeanors”—what would those be if a president is immune from prosecution for his official acts? The framers worried about politicians’ overreach and carefully provided for oversight of leaders; the Supreme Court today smashed through that key guardrail…

Today, observers illustrated what Trump’s newly declared immunity could mean. Political scientist Norm Ornstein pointed out that Trump could “order his handpicked FBI Director to arrest and jail his political opponents. He can order the IRS to put liens on the property of media companies who criticize him and jail reporters and editors.” Legal analyst Joyce White Vance noted that a president with such broad immunity could order the assassination of Supreme Court justices, and retired military leader Mark Hertling wrote that he was “trying to figure out how a commander can refuse an illegal order from someone who is issuing it as an official act.” 

Lawyer and legal scholar Robert Hubbell minced no words:

Today, the Supreme Court overthrew the American Revolution and anointed the US president as a modern-day king. Their betrayal of the American revolutionaries, Founders, and Framers is all the worse because they did so to promote the most corrupt, dangerous, depraved person to disgrace the office of the presidency…

Trump v. United States will be overruled. The decision is so bad it will not stand. Like Dred Scott (holding that enslaved people are not citizens entitled to judicial protections), Plessy v. Ferguson (upholding segregation), Koramatsu v US (upholding the Japanese internment camps), today’s decision will be overturned by the acclamation of history in due course. It will be remembered as a mark of shame for the Roberts Court just as Dred Scott tarnishes Chief Justice Taney’s legacy to this day.

It may take a few years or decades to overturn Trump v. US, but the American people are the ultimate power under the Constitution. Majorities in the House and Senate can pass a bill to expand the Supreme Court, and a Democratic president can sign it. The reactionary majority can be overwhelmed by the appointment of four new justices, although expanding the Court by eight or more would be appropriate given the nearly hundred-fold growth in the US population since six justices were appointed in 1789.

The problem is, if Donald Trump wins in November–or if MAGA neo-fascists control either the House or Senate– there won’t be a United States in which the judicial process can self-correct. 

America as we’ve known it will be gone.

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Deconstructing America

The Founders would be dumbfounded.

Remember what you learned (maybe) in high school government class about the three “co-equal” branches of government? Well, our rogue Supreme Court says that was wrong–that judges should be the imperial, all-powerful arbiters of national life, because they know far better than the experts serving in various government agencies what government can (or really, cannot) do about elements of our common lives like air and water quality, unfair competition…you name it.

I have previously explained what was at stake in a case challenging what is called “the Chevron doctrine.” But Robert Hubbell’s Substack letter explains better than I could the appalling, immensely negative consequences of Friday’s decision over-ruling that doctrine, and I am going to quote liberally from his explanation/diatribe.

You will be able to tell your grandchildren that you lived through a judicial revolution that rewrote the Constitution to suit the financial interests of corporate America and the social agenda of an extremist minority that fetishizes guns, hates government, and seeks to impose their narrow religious views on all Americans. The open question in 2024 and beyond is whether we will reverse that revolution. The first step is to understand the earth-shaking consequences of the Court’s ruling…

The Roberts Court has anointed the judiciary as the ascendant branch of government. The person of the president—not the executive branch—is nearly omnipotent in Roberts’ schema. Congress has been neutered…

The US economy is the largest in the world by a wide margin. That size is attributable in no small measure to (a) the orderly markets and business conditions created by federal regulations and (b) the comparatively corruption-free nature of the US economy (also attributable to federal regulations).

Managing and maintaining the immense US economy is a monumental undertaking. We need regulations that control how and when fish stocks can be harvested, where medical waste can be stored, how thick concrete must be on bridge spans, what type and color of insulation must protect electrical wires, what temperature meat must be kept at when being transported across the country, and what type of information can be collected and stored in a retail transaction.

Multiply those issues by a million, and you will have a vague sense of the complexity and scale of the US economy….

Those millions of regulatory decisions demand broad and deep expertise by career professionals with advanced degrees and years of experience in their field of regulation. That expertise resides in the federal agencies housed in the executive branch under the president..Businesses hate federal regulation because they impose a trade-off: protecting the health and safety of Americans by reducing the maximum profits unrestrained businesses could earn in the short term in an unregulated economy.

The so-called “administrative state” of federal agencies has been wildly successful. It is why all international airline pilots speak English when flying between countries across the globe. It is why the US dollar is the world’s currency. It is why the world’s science, technology, and innovation hubs are located in the US. It is why every Chinese corporation that goes public in China has the goal of transferring from the Chinese stock exchanges to the New York Stock Exchange, Nasdaq, and the Chicago Options Exchange as soon as possible…

As Hubbell writes, Friday’s decision dramatically reduces the power of Congress by requiring that legislation be as specific as an instruction manual. Under Chevron, when Congress directed the Executive Branch to achieve a desired goal, agency personnel with deep expertise in the relevant area would determine how best to reach that goal. If a regulation was challenged, the Court could strike it down if evidence showed it was unreasonable, but absent such evidence, the courts  deferred to the agency’s interpretation.

Hubbell provides an example:

If the Court requires Congress to specify the precise number of salmon that can be taken from the Klamath River each year rather than saying that the NOAA Fisheries Department shall establish fishing quotas to maintain healthy fish populations in inland waterways, Congress’s work will grind to a halt. Members of Congress have neither the time nor expertise to determine a healthy fish population for each inland waterway in the US. In the absence of “the administrative state,” Congress (or the courts) must serve as the regulators of the millions of daily transactions governed by federal regulations.

In the future, when a business challenges a regulation, federal judges rather than agency experts will interpret and apply–or more likely, overturn– the regulation. We’ve seen the arrogance and fact-free behavior of recent, ideologically-driven judicial appointees. 

The Trump judges on the Supreme Court have accomplished things near and dear to the Rightwing heart. In addition to dramatically undermining the liberties protected by the Bill of Rights, they have substantially deconstructed the checks and balances of the Founders’ government structure. They certainly aren’t “originalists” in any sense that matters.

At best, it will take years–generations–to undo the damage. At worst, a Trump win in November and implementation of Project 2025, would foreclose any possibility of enlarging or otherwise restraining this rogue Court and beginning to reverse the enormous damage it has caused.

What is truly terrifying is how few Americans seem to understand the stakes.

This election is a choice between an elderly man who has been an exemplary President but a poor debater and an equally elderly man who, in service to his own monumental ego and his rabid White Christian Nationalist base, is intent upon destroying America as we know it. 

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As The Legal World Turns….

The news that a symbol supporting the January 6th insurrection had hung outside Justice Alito’s home was stunning. It was so outside everything lawyers have been taught about proper judicial behavior and ethics that anyone who has ever studied the law, or the role of the courts, was incredulous. If there was any doubt about its significance, or the dishonesty of Alito’s attempt to blame his wife, a subsequent report–with photos–shows that Christian Nationalist “Appeal to Heaven” flag, used by January 6th insurrectionists, flew for two months at Alito’s beach house.

As Robert Hubbell writes, “Alito is signaling his partisan allegiance and Christian nationalism. As I wrote yesterday, we should take him at his word. If we do not, he will continue to vote for outcomes and write opinions that are antithetical to the liberties guaranteed in the Constitution.”

It doesn’t really require legal training to understand how profoundly Alito violated norms of appropriate judicial behavior. If a local judge flew a flag supporting one side of a case over which he was currently presiding, ordinary citizens–not to mention the local bar association–would immediately demand removal of both the case and the judge.

I may feel this incredible impropriety more strongly because I approached the teaching of my policy classes through a constitutional lens. I taught my students that the Constitution and Bill of Rights constrain policy choices–that legal precedents determine the boundaries of legitimate government action. I’ve previously explained that Alito’s Dobbs decision threatened far more than reproductive rights–that it undermines a longstanding legal doctrine that draws a line between permissible and forbidden government interventions.

I’m no longer teaching, and I really don’t know how I would handle the reality that “settled” constitutional interpretations are being routinely ignored by Justices on America’s highest court, so I sympathized with the law school professors interviewed on that issue by The New York Times. As one said,

One of the primary challenges when one is teaching constitutional law is to impress upon the students that it is not simply politics by other means,” he said. “And the degree of difficulty of that proposition has never been higher.”

That difficulty was addressed by the professors interviewed by the Times. As several noted, teaching constitutional law has for many years been based on an underlying premise: 

That the Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the court’s integrity, than in imposing a partisan agenda.

The premise no longer holds today. Many in the legal world still believed in the old virtues even after Bush v. Gore, the 5-to-4 ruling that effectively decided the 2000 presidential election on what appeared to many Americans to be partisan grounds. But now, the court’s hard-right supermajority, installed in recent years through a combination of hypocrisy and sheer partisan muscle, has eviscerated any consensus.

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party.

And that has made it impossible for many professors to teach in the familiar way. 

The mounting concerns of legal scholars are shared on both the political left and right. Michael McConnell is an extremely conservative legal scholar who has criticized the analyses of even the cases that reach his preferred conclusions. He worries that the dishonesty and hypocrisy of these justices is undermining the respect required by the rule of law.

Professor McConnell recalled a recent exchange in one of his classes. “I said something to the effect of, ‘It’s important to assume that the people you disagree with are speaking in good faith.’ And a student raises his hand, and he asks: ‘Why? Why should we assume that people on the other side are acting in good faith?’ This was not a crazy person; this was a perfectly sober-minded, rational student. And I think the question was sincere. And I think that’s kind of shocking. I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed.”

As Maya Angelou told us: When someone shows you who they are, believe them.

Alito’s breathtaking breaches of judicial behavior leave no doubt about who he is. He should be impeached.

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Supreme Dysfunction

In a recent issue of The American Prospect, columnist Rick Perlstein dismissed concerns about recent polling and reminded readers that considerably more is at stake right now than the “horse race” that media disproportionately focuses on. As he says, that all-too-typical approach to political campaign coverage is increasingly irrelevant.

This year, hearing the political reporters on NPR every morning yammering on about stuff like that, it sounds like the drone of the adults in a Peanuts cartoon. It’s so far down the scale of factors determining how the world might go in 2025 that I cringe, tune out, and wait for the next story to start.

If that typical coverage is “down the scale,” what does Perlstein count as more weighty? He suggests that speculation about how many electoral votes each candidate will get is less significant than concerns about the number of people who might be willing to take up arms to “avenge” a Trump loss.

And then there’s the conventional coverage of the Trump trial. Perlstein points out that the attacks being made by Trump’s GOP sycophants–largely ignored or minimized by the media– are part of Repubicans’ ongoing assault on the rule of law. As he says, “what is actually on trial in New York? Trials themselves.”

Every time the man who once took an oath to faithfully execute America’s laws and may next year do so again acts in ways that would bring criminal sanction to any other defendant, by brazenly and deliberately intimidating witnesses in direct defiance of Judge Merchan’s orders, Donald Trump imparts a lesson to his millions of supplicants: One of the three allegedly coequal branches of constitutional governance in the United States is illegitimate, should its decisions not break Donald Trump’s way.

The attack on the rule of law has, of course, been aided and abetted by the current disaster that is the U.S. Supreme Court–a Court that has been intentionally packed with far-Right ideologues.

It is, of course, a crisis now long in the making. Six mortals with lifetime appointments, five of them named by Republican presidents who never won a popular majority, routinely abandoning even the pretense of intellectual coherence and procedural norms to press changes in how the nation is governed, so right-wing they could never stand democratic scrutiny.

For instance, by seeking to strip the power of nonpartisan experts to adjudicate highly technical regulatory questions. Or to control the split-second decisions of doctors in emergency rooms about how to keep women alive. Or to usurp judgement of municipalities and states to decide who can carry concealed weapons of war—reserving those rights instead to, in order, the 535 members of Congress, the nutjob Republican majority in the Idaho legislature, and the made-up fantasies about the beliefs of powder-wigged men from back before bullets had been invented.

Perlstein went on to describe the truly bizarre arguments that have been advanced for Presidential immunity–and the even more grotesque musings of Justice Alito– in what he called the “aptly named” case of Trump v. United States. 

So here we are.

In a very real sense, it is Trump and his cult versus the United States–at least the United States envisioned by the nation’s Founders. Not only does the MAGA movement pose an unprecedented threat to America’s democratic norms, it does so at a time when the multiple threats posed by climate change promise (at best) enormous social upheavals.

Perlstein argues that the political situation in which we find ourselves was “seeded” in Bush v. Gore, and from a legal standpoint, he may be right. But historians tell us that there has always been a portion of the American public that rejected the philosophical underpinnings of America’s constituent documents–citizens who have resisted every expansion of the civic equality and individual liberty at the heart of those instruments. Today, that resistance is most obvious in the hysterical backlash against women’s rights, “woke-ness” and efforts at racial inclusion.

Reactionaries have always been with us, but for most of our history, they’ve been on the fringes of political life. What is new–and arguably unprecedented–is that they have captured one of America’s major political parties. They have a Supreme Court majority, including two Justices who repeatedly and flagrantly violate judicial ethics. They have made no bones about their plans for 2025 and beyond, should they win in November.

Perlstein is right: treating the upcoming election as a typical horse-race ignores reality. A very dangerous reality.

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Complicated–And Consequential

The virtue of America’s current battle over a woman’s right to control her own body is its clarity. Either a woman has the right to determine whether she will give birth, or the government has the right to force her to do so, irrespective of the consequences for her health and well-being.

It’s either/or. 

Other threats we face are much more subtle and complicated. Policy changes that may seem innocuous or even reasonable on the surface have the potential to undermine rules that demonstrably serve the common good. An example is the passage this year of bills in Indiana, Nebraska, and Idaho that propose to end “judicial deference.”  Judicial deference is a doctrine that requires federal or state courts to “defer” to administrative agencies’ interpretations of agency statutes and regulations. Instead, those bills require courts to apply de novo review — to examine executive agency actions without bothering to give weight to that agency’s interpretation of the statute or regulation in question.

The bills were based on model legislation: the Judicial Deference Reform Act, developed by The Goldwater Institute and the Pacific Legal Foundation. Those bills might not have been necessary, though–our radical, rogue Supreme Court, unconstrained by precedent, appears ready to junk that doctrine, called The Chevron doctrine after the long-ago footnote that established it. 

Why should we care about this arcane bit of jurisprudence? As one recent analysis explained, overturning the Chevron doctrine would allow individual judges to implement their partisan policy preferences instead of abiding by agency expertise.

Under Chevron deference, courts have been obligated for the past half-century to defer to career expert civil servants in agencies who created rules based on their statutory authority when the statutes were ambiguous or silent, as to highly specific and technical areas of regulation. Chevron deference has been used in more than 19,000 cases and is the basis on which Congress has enacted broadly worded statutes granting agencies regulatory authority for the past 40 years. Now, the Supreme Court is poised to throw the baby out with the bathwater by overturning the very authority it directed Congress and federal agencies to operate under….

The court also appeared ready to return to the Skidmore v. Swift & Co. doctrine, which preceded Chevron and, ultimately, would give federal courts more power to implement their policy preferences and ignore agency expertise. As Justice Elena Kagan aptly pointed out, Chevron replaced Skidmore because “judges [were] becoming too partisan in interpreting regulations,” which “dampens that kind of ideological division between courts.” She also reasoned that “Skidmore is not a doctrine of [judicial] humility.” Meanwhile, Justice Ketanji Brown Jackson emphasized that Chevron allows Congress to delegate policy choices to executive agencies and voiced concerns that “if we take away something like Chevron, the court will then suddenly become a policymaker.”

As the linked article notes, the conservative legal movement’s long effort to use the legal system to serve the interests of  corporate behemoths at the expense of sound policy and the broader interests of the American public seems increasingly likely to succeed.

The doctrine requires “deference”–not submission. If evidence produced at trial shows that an agency’s interpretation of a rule is unreasonable, the courts can and should overturn that interpretation. But discarding the requirement that courts should defer--not “buckle under”–is yet another blow to respect for knowledge and expertise. 

Executive branch agencies increasingly deal with matters requiring considerable subject-matter knowledge. Officials of the EPA are highly likely to know more about unsafe levels of arsenic in drinking water than a judge presiding over a case brought by a company that has been fined for exceeding that level in its discharge into a local river. Officials at the FDA have met professional standards for evaluating the safety of food and/or the efficacy of drugs. Recently, we’ve been reminded of the importance of informed FAA oversight of aircraft manufacturers like Boeing. The growing complexities of modern life–in technology, in medical science, in product safety–requires acknowledging the importance of specialized expertise.

The courts have operated under Chevron deference since 1984. That deference has not kept them from invalidating unreasonable or overbroad interpretations of statutes and regulations. It has, however, required judges (who come to the bench with a very different kind of expertise) to listen carefully to the reasons agency personnel interpret a given rule in the way that they do.

Most Americans have never heard of Chevron; in Indiana, Nebraska and Idaho, most citizens are blissfully unaware of the passage of laws discarding the doctrine.

The threat posed by overruling the doctrine is far less obvious than the threat to women’s autonomy–but that doesn’t mean this assault on expert knowledge isn’t significant.

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