A Legacy of Disappointment & Shame

   

A Legacy of Disappointment & Shame

Last year (September 27th), my blog Whose Supreme Court is It Anyway focused on Supreme Court Justice John Roberts, who at the time seemed to have surrendered to the reality that the 6 to 3 heavily rightwing Trump reconfigured Supreme Court could outvote any moderate course. It was the year, before Trump 2.0, that Roberts wrote the opinion in Trump vs United States that ruled that a president, acting within aA Legacy of Disappointment & Shame colorable scope of his official acts, would be exempt from any criminal liability. Of the more than 23 “emergency” “shadow docket” rulings over Trump 2.0 policies, where delays have been granted in Trump’s favor without an opinion or review on the merits, 90% have been supportive of expanding the power of the President.

To emasculate lower federal court rulings against Trump’s excesses further, in Trump vs Casa (decided this summer), the Robert’s Court limited trial court injunctions against constitutional violations simply to the judicial territory of the specific lower court. The Court was limiting the power of what they called the “administrative state,” but instead of just taking away the deference that courts used to accord highly trained experts in federal agencies, they handed such decisions to uninformed judges who often applied their vision of common sense or replaced the ruling with a highly ideological result sought by conspiracy theorists.

Reflective of Roberts’ rewriting the Constitution to enable Donald Trump’s reach for autocracy, as clearly stated in the 900+ page Project 2025 agenda book and supported in an October 5th editorial in the Wall Street Journal, is this excerpt from a letter to that Journal from Georgetown University Professor of Law, Stephen I. Vladeck, published on October 15thagainst that editorial: “In the words of Justice Elena Kagan, those rulings have cleared the way for President Trump to ‘transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.’

“Across two dozen unsigned and usually unexplained grants of requests for emergency relief, the Supreme Court, with Chief Justice John Roberts almost always in the majority, has approved Mr. Trump’s refusal to spend billions of dollars Congress has appropriated—an executive impoundment power constitutional conservatives, including then-White House lawyer John Roberts, have long rejected.

“The court has allowed the president to terminate government contracts for spurious and often retaliatory reasons. It has greenlit the decimation of agencies and cabinet departments that Congress created and structured. And it has done so while, at the same time, calling into question the power and propriety of individual federal district judges blocking federal policies—a power constitutional conservatives regularly invoked, to great success, during the Biden administration… You laud the Roberts Court for reducing ‘the prospects of lawfare’ against political opponents and limiting ‘the arbitrary power of the administrative state.’ But one need only read your fine editorial pages to see how much the court’s recent misadventures have had the opposite effect.

“The Roberts Court may have achieved a ‘constitutional revitalization,’ but it’s more troubling than the one you describe. Its rulings reflect a vision of the Constitution in which the executive is dominant, the legislature all-but irrelevant, and the Supreme Court there to protect the executive from pesky lower courts that insist it must follow the law… As you note elsewhere, that isn’t what originalist judges should do—or what the Founders wanted.”

Ah, but, sooner or later, those docket decisions are all destined to face a hearing on the merits, replete with oral arguments, full briefing and, ultimately, a decision embodied in one or more published opinions. The decisions this rightwing Roberts Court used to kill Joe Biden’s student loan forgiveness program and his environmental rules – effectively that on obviously “major question” matters, the Court must view Presidential edicts narrowly absent an expressed grant of power by Congress in the enabling statute – if applied in the same way, would strongly suggest that Trump’s unilateral declaration of an “emergency” based on trade imbalance is hardly what the statute upon which he relied, the International Emergency Economic Powers Act (IEEPA), a 1977 law that never mentions “tariffs,” was intended to allow.

The consolidated cases challenging Trump’s tariff frenzy now before the Supreme Court (Learning Resources v. Trump, and Trump v. V.O.S. Selections, Inc.) faced oral argument on November 5th. Gravel voiced Solicitor General, John Saur, could not fast-talk past the wall of judicial skepticism he faced as he lamely attempted to claim that a “tariff” was not a tax, just a trade regulation, and that a pattern of half a century of trade practices could be deemed an “emergency.” My personal belief is that Roberts and friends have painted themselves into an ugly, MAGA-driven corner where the entire Supreme Court panel knows Trump exceeded his authority, even though the conservative majority have been Trump enablers, but the remedies would be catastrophic… and angry MAGA followers would be likely to scream at any attempt to limit King Trump.

“[During the above oral argument}, Roberts appeared to lean against the administration’s arguments that Trump had the power to unilaterally impose tariffs with virtually every nation. But the arguments barely touched on the implications of ruling against the president. Not only are the economic consequences enormous—the government says it expects to collect between $750 billion and $1 trillion in tariffs by next June—but the political implications could be even greater.

“Trump has championed an aggressive tariff regime for decades; as president, he views import taxes as essential to remaking the U.S. economy. Taken together, the economic stakes and the president’s intense personal commitment to his tariffs almost make the case too big to lose…If the court does rule against the president, it could say that federal law doesn’t allow Trump to impose these types of tariffs on his own. It could also say that tariffs are taxes and Congress, which holds the taxing power, can’t outsource that authority to the president even if it wanted to.” Jess Bravin writing for the October 11th Wall Street Journal. But if the Court does not limit Trump’s tariffs, the rule of law will have officially ended, and the reign of King Trump will have officially begun.

I’m Peter Dekom, and if democracy in the United States ends, John Roberts will join Stephen Miller and Russell Vought as the principal architects of Donald Trump’s return replacement for the long-believed-to-be-dead King George III.