On the Deeply Corrupt Republican Justices
Constitutional Moments & Constitutional Mischief: The Court, Trump, the Limits of Law, Emergency dockets, partisan rulings, and the peril of a judiciary that never expects to have to answer to the...
Constitutional Moments & Constitutional Mischief: The Court, Trump, the Limits of Law, Emergency dockets, partisan rulings, and the peril of a judiciary that never expects to have to answer to the current loyal opposition…
In the era of Trump, the Supreme Court’s conservative bloc has wielded the emergency docket as a weapon, dispensing unexplained, often incoherent rulings that favor Republican interests and undermine legal norms. Lower courts—once the backbone of judicial process—find themselves chastised for not divining the true intent behind these shadow decisions.
Thus the emergency docket has become a mechanism for partisan advantage as the Court’s Republican majority has repeatedly exempted Trump and his allies from established legal standards.
Is this how “constitutional moments” have, in reality, always worked? The Age of Jackson, Reconstruction, Reconstruction’s Reversal into Jim Crow, the New Deal, the Civil Rights Revolution—all those political causes won repeated elections by convincing majorities before “the Supreme Court follow[ed] the election returns”, as Finley Peter Dunne wrote in 1901. (The context? The Insular Cases, in which the Supreme Court decided, contrary to all previous practice and precedent, that the Constitution did not automatically follow the flag into newly-organized U.S. Territories when not just a few Amerindians but a lot of brown people already lived there, as was the case with Puerto Rico, Guam, and the Philippines.)
But this seems to be a different kind of Ackermanian Constutional Moment—one engineered not from popular votes and mobilized public opinion below, but fro above. Indeed, the future and existence of American democracy hangs in the balance.
Steve Vladeck appears to at least contemplate that the Republican justices might be people one can at least attempt to reason with:
Steve Vladeck: The (Not-So-)Interim Docket <https://www.stevevladeck.com/p/177-the-not-so-interim-docket>: ‘Reflect… [on] Justice Kavanaugh’s (continuing) effort to rebrand the body of rulings the Court hands down on emergency applications as the “interim docket,” and his conciliatory tone… [to] judges…. The Grand Canyon-sized chasm between what Justice Kavanaugh is saying in public and what he (and a majority of the Court) is actually doing in these cases… [to] migrants who have been sent to third countries without due process… federal employees who have lost their jobs and have virtually no chance of getting them back… grant recipients who have lost funding on which their research has depended; and… lower-court judges who were chastised just two weeks ago by Justices Gorsuch and (you guessed it) Kavanaugh for not doing enough to guess what the implications of even unexplained interventions by the justices are….
Justice Alito insisted in his 2021 speech that these rulings don’t create precedents, [but] we now know better…. The Court has now repeatedly insisted that they do. And in his concurrence in the NIH case, Justice Gorsuch went further—heavily criticizing lower-court judges in three cases for defying the Court’s rulings on emergency applications…. If you’re a lower-court judge genuinely puzzling over how to handle the Court’s unexplained or thinly explained rulings in these cases, the lesson of the Gorsuch NIH opinion sure appears to be that judges must divine the substantive significance… and that,,, arguments for… distinguish[ing]… are only appropriate to consider if five justices are ultimately going to endorse them…. For Justice Kavanaugh to turn around on Thursday and play up the difficult position in which lower courts are finding themselves in these cases is rather striking given his own role in making their position so difficult in the first place….
Lawrence Hurley… [finds] lower-court judges… expressing mounting frustration…. If I were a Supreme Court justice… I would view that story as a massive red flag—and I’d be thinking about ways to provide reassurance… rather than (or, at least, in addition to) delivering empty platitudes at a semi-public judicial conference and trying to re-brand what those rulings are called, I might think about whether my own behavior in those cases ought to change. Alas…
Here is Hurley:
Lawrence Hurley: In rare interviews, federal judges criticize Supreme Court's handling of Trump cases <https://www.nbcnews.com/politics/supreme-court/supreme-court-trump-cases-federal-judges-criticize-rcna221775>: ‘Ten judges tell NBC News the Supreme Court needs to explain its rulings better, with some urging Chief Justice John Roberts to do more to defend the judiciary against external criticism…. Federal judges—appointed by Democratic and Republican presidents, including Trump, and serving around the country—pointed to a pattern…. Lower court judges are handed contentious cases involving the Trump administration. They painstakingly research the law…. When they go against Trump, administration officials and allies criticize the judges in harsh terms. The government appeals to the Supreme Court, with its 6-3 conservative majority. And then the Supreme Court, in emergency rulings, swiftly rejects the judges’ decisions with little to no explanation. Ten of the 12 judges who spoke to NBC News said the Supreme Court should better explain those rulings, noting that the terse decisions leave lower court judges with little guidance for how to proceed. But they also have a new and concerning effect, the judges said, validating the Trump administration’s criticisms. A short rebuttal from the Supreme Court, they argue, makes it seem like they did shoddy work and are biased against Trump. “It is inexcusable,” a judge said of the Supreme Court justices. “They don’t have our backs”…
And Ian Millhiser sums it up:
Ian Millhiser: The overwhelming evidence that the Supreme Court is on Donald Trump’s team <https://www.vox.com/scotus/460270/supreme-court-republican-partisan-hacks-donald-trump>: ‘Welcome to the Supreme Court’s Calvinball era…. On August 21, the Supreme Court handed down a baffling order that required researchers, who claim that the Trump administration illegally cut off their federal grants, to navigate a convoluted procedural maze in two different courts. [Justice Ketanji Brown] Jackson labeled this decision “Calvinball jurisprudence with a twist.” Calvinball, an ever-changing game featured in the Calvin and Hobbes comic strip, “has only one rule: There are no fixed rules.” In this Court, Jackson continued, there are two: The rules always change, and “this Administration always wins.”…
The Court’s Republican majority now hands Trump several victories every month, only explaining themselves when they feel like it. When they do explain those decisions, they are often incomprehensible. The Republican justices exempt Trump from rules that apply to every other litigant, including the most recent Democratic president…. The most reasonable explanation for the Republican justices’ behavior is that they are acting in bad faith….
As the Court explained in Nken v. Holder (2009)… a party asking an appellate court to block a lower court decision while the case is still being litigated normally cannot prevail, even if they show they’re likely to win the case… [unless they] show that they “will be irreparably injured absent a stay,” and that a decision blocking the lower court’s order won’t do too much harm to the public interest or to third parties. But… the Republican justices appear to have exempted Trump and his administration from this requirement….
The Court’s decision in NIH is so convoluted that it is impossible to parse. But it appears to hold that researchers who lost their grants must first go to a federal district court to obtain an order saying the grants were illegally cut off, then defend that order on appeal, and then go to a different court (the Court of Federal Claims) to get a second court order requiring the administration to give them their money—a process that will likely take years…. the Court achieved partisan results simply by manipulating procedure. It played a similar game, with opposite results, when Biden was president…
Yale law professor Bruce Ackerman had a theory of “constitutional moments”. Ackerman argued that it was a legitimate part of American governance to change the structure and meaning of the Constitution without going through the formal amendment process outlined in Article V. Ackerman argued that, occasionally, American governance shifted into a period of heightened public debate and mobilization, during which a political party proposed major changes to doing things that did more than stretch but rather contradicted previous and prevailing constitutional interpretations. When the public then repeatedly endorsed those changes through elections, those new statutes and practices become embedded in constitutional law, even without a formal amendment. Ackerman’s examples were Reconstruction, its late-1800s reversal with the coming of Jim Crow, the New Deal, and the 1960s Civil Rights Revolution. The Supreme Court accepted changes in the way the law worked and what the law meant as constitutional, despite the lack of formal amendments. In Ackerman's view, these “constitutional moment” shadow amendments were as fully legitimate as formal amendments, as they required broad public participation and consensus-building, rather than just elite negotiation.
I have long thought that the Age of Jackson should count as a constitutional moment as well. Andrew Jackson probably never actually said “John Marshall has made his decision, now let him enforce it”, but it is very clear, to me at least, that Chief Justice John Marshall had a Supreme Court majority behind him who thought (a) that stealing their land from the Cherokee was very bad juju, and (b) that when the black letter of the law required them to rule they would so rule to protect the Cherokee, but (c) they would use every procedural trick in the book to avoid having to actually rule to materially protect the Cherokee’s property—for a fight with Andrew Jackson was one that they would probably lose, to the long-run detriment of the court and the nation.
The difference between then and now is that (a) John Roberts is on Trump’s side in a way that John Marshall was not on Jackson’s, and (b) Jackson was genuinely popular in the nation as a whole—his brand of populism as to what America was and would become regularly won elections up until Stephen A. Douglas decided to push the Kansas-Nebraska Act in 1854.
The most scary thing to me is that this mode of behavior makes long-term sense for the six Professional Republican justices only under one condition. It makes sense only if the future that they contemplate is one of there never ever ever again being, simultaneously, a Democratic President, a Democratic Senate Majority Leader, and a Democratic Speaker of the House. For even the bluest of Blue Dog Democrats in the Congress, a Supreme Court focused on finding ways to make sure that laws passed by Congress do not bind a Republican President is unacceptable. And so breaking the constitutional principal that the Article I branch is the most powerful invites the complete neutralization of the future Supreme Court.
Ackerman paired this argument with a theory of presidential successes and failures leading to these "constitutional moments". That part of his theory has not held up well. Under it, the Nixon/Reagan reaction to the New Deal should have run its course by 2016, if not before. Indeed, Jack Balkin relied on the theory after the 2016 election to predict that Trump would be a failed president and that would usher in a new liberal era (sic).
Ackerman's theory seemed to "work" in the long run of "normalcy" after the Civil War -- like it or not, the US was fundamentally a "white man's republic" until the Civil Rights Act and Voting Rights Act and the Court and presidency reflected that. It might have continued to work while we tried to create a multi-racial democracy had the Constitution's most fundamentally undemocratic features -- the Senate, the Electoral College, and the Court -- not run us into the ditch of Constitutional failure (Jack Rakove's term).
That failure leaves us fighting a rear-guard action against fascism with no clear path forward even if we manage to pull off a comeback equivalent to the Bills last night. As Lincoln recognized in the only comparable circumstance in our history, "The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country." Perhaps the most critical feature of any solution is the destruction of the current Court and its reformation as something new.
The decisions were explained in "When you're a star, they let you do it." The rest is legal sophistry.