Whose Supreme Court is It Anyway?
The Dark Legacy of the Roberts Court
Donald Trump cemented control of one of the three branches of government, possibly for decades, with his appointment of three very conservative justices, creating a 6-3 very conservative court. If Trump did not win the 2020 election, his protests that continue to the very day that the election was “stolen,” he most certainly turned the United States into a MAGA-run nation with a very long tail no matter how the 2024 election configures. If Trump is reelected, you can bet that Justices Samuel Alito and Clarence Thomas will retire, allowing Trump to ensure his lingering stamp on just about everything for a very, very long time.
Until Trump’s rebuilding the Court into a clear and enduring MAGA legacy, Harvard-law-educated and Chief Justice since 2005 (appointed by G.W. Bush), John Roberts, struggled with a Court that lacked leadership, cohesiveness and effective jurisprudence. A combination of factors – the refusal of GOP Senators to consider Merrick Garland’s nomination and the death of Ruth Bader Ginsburg (who simply overstayed on the Court long enough to hand Trump the ability to control the Court) – changed what was clearly a rudderless Court into a rightwing dream. Roberts, who had masqueraded as a swing vote Justice, was no longer that swing vote neutral. His mask came off, and the Court veered heavily to the right. Trump won big.
Minorities of color were increasingly susceptible to unchecked voter suppression. Gunowners were able to stomp on sensible gun control, even after a litany of mass shootings (including on many campuses – death-by-gun became our leading killer of children and young teens). Women faced a loss of reproductive freedom and medical choice (even in emergencies) in one-third of American states, and doctors faced criminalization of their sworn duties, after Roe v Wade was reversed. Administrative agencies, laced with seasoned and educated experts, were eviscerated and replaced with rightwing Trump appointee-judges with fact-averse and uneducated judicial opinions. The separation of church and state was fading away. The President of the United States was accorded unprecedented immunity for undefined “official” acts, a status usually reserved for absolute monarchs and autocrats. 1/6/21 rioters, who inflicted massive damage to the Capitol and death and serious injury to Capitol police officers, were given new relaxed standards for criminal responsibility. “Originalism” – which limited constitutional interpretation to the historical circumstances at the time of enactment, requiring judges to delve into history, well outside of any legal inquiry – became the required judicial standard for review. Justices who clearly embraced political biases in their personal life were not required to recuse themselves where those biases were at issue. And the Justices themselves discovered that bribery from biased sources, representing parties and issues that frequently were before the Court, was “A-OK.” There were no ethical boundaries on Supreme Court justices.
Read the above, extra-long, paragraph again. It is long for a reason; a rogue Supreme Court under an unmasked bias Chief Justice, was hell-bent on rewriting the Constitution and bending or repealing a long litany of Supreme Court rulings and standards of interpretation. Even as the sizeable MAGA faction in Congress was struggling to implement MAGA values (read: white Christian nationalism), the Supreme Court had no problem imprinting MAGA values everywhere. Perhaps a President’s greatest power is indeed appointing Supreme Court justices.
But after Trump lost the 2020 election, Chief Justice Roberts quickly became Donald Trump’s unequivocal ally on the Court. Eschewing the normal careful read and review of the pleadings and briefs on specific cases before taking a stand, Roberts became “all Trump, virtually all the time,” even well before cases were submitted to the Court. Doing a deep dive into the Court’s internal practices, this Trump-shifted Chief Justice became the basis for a September 15th investigative report for the New York Times, vetted by several other credible periodicals, by Jodi Kantor and Adam Liptak: “Last February, Chief Justice John G. Roberts Jr. sent his eight Supreme Court colleagues a confidential memo that radiated frustration and certainty.
“Former President Donald J. Trump, seeking to retake the White House, had made a bold, last-ditch appeal to the justices. He wanted them to block his fast-approaching criminal trial on charges of attempting to overturn the 2020 election, arguing that he was protected by presidential immunity. Whatever move the court made could have lasting consequences for the next election, the scope of presidential power and the court’s own battered reputation.
“The chief justice’s Feb. 22 memo, jump-starting the justices’ formal discussion on whether to hear the case, offered a scathing critique of a lower-court decision and a startling preview of how the high court would later rule, according to several people from the court who saw the document.
“The chief justice tore into the appellate court opinion greenlighting Mr. Trump’s trial, calling it inadequate and poorly reasoned. On one key point, he complained, the lower court judges ‘failed to grapple with the most difficult questions altogether.’ He wrote not only that the Supreme Court should take the case — which would stall the trial — but also how the justices should decide it… ‘I think it likely that we will view the separation of powers analysis differently’ from the appeals court, he wrote. In other words: grant Mr. Trump greater protection from prosecution.
“In a momentous trio of Jan. 6-related cases last term, the court found itself more entangled in presidential politics than at any time since the 2000 election, even as it was contending with its own controversies related to that day. The chief justice responded by deploying his authority to steer rulings that benefited Mr. Trump, according to a New York Times examination that uncovered extensive new information about the court’s decision making.
“This account draws on details from the justices’ private memos, documentation of the proceedings and interviews with court insiders, both conservative and liberal, who spoke on the condition of anonymity because deliberations are supposed to be kept secret… The chief justice wrote the majority opinions in all three cases, including an unsigned one in March concluding that the former president could not be barred from election ballots in Colorado.” Roberts also pulled decisions to be written by Samuel Alito, following the latter’s overt symbolic MAGA flag messages flying over his residences… but Roberts was equally clear in his Trumpian vision as he took over writing those opinions. It appears obvious this pro-Trump bias defines Roberts’ legacy as Chief Justice… and points out the danger of lifetime appointments of biased judges.
I’m Peter Dekom, and it is deeply offensive to me as a lawyer when the highest judge in the highest court in the land moves from necessary judicial neutrality to becoming the greatest advocate for a single individual person, reinforcing the notion that there at least two systems of justice in this land: one for Donald Trump…. and another for everyone else.
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