Supreme Court Makes Way For Dictatorship
The Republic never intended to have a Supreme Court like this
We have a Supreme Court that is out-of-control.
It has extended its power and given presidents a path to dictatorship. It has:
· Given absolute immunity to any president (read: Trump) and ended the tradition that no one is above the law.
· Dismissed concerns that federal officials take bribes,
· Taken away the power of agencies to interpret statutes,
· given the OK to public use of machine guns,
· Kicked the homeless out onto the streets,
· Reinforced the steel silo from which it rules by saying that it is completely unaccountable to any other agency, and
· Said that Trump is immune from any activity performed in the course of his duty…which it could have said months ago and send it back to the lower courts for a ruling before the election.
All of this new power is on top of a book I reviewed a week ago called “The Shadow Docket – How the Supreme Court uses stealth rulings to amass power and undermine the Republic.”
With unsigned and unexplained “shadow” rulings, the Court decides thousands of cases each year. These are often little more than vehicles for the exercise of partisan political power. In fact, the sum of written rulings is only about 1 percent of the Court’s total output in any given year.
A Supreme Court ‘silent’ ruling on the Texas six-week abortion ban, for example, allowed bans on abortions to go into effect ten months before the big public case overruling Roe. The verdict for their coming Roe ban was in front of everyone, but we all missed it because it came from the shadows.
Focus first on presidential immunity. The court said that a president has absolute immunity for his official acts.
What is an ‘official act’, vs. a civilian act? Claire Wofford, political science professor at the College of Charleston, said that “basically, if you can plausibly think it’s an official act, it’s an official act.”
It ruled that the law necessitates at least a presumptive immunity from criminal prosecution. And it said that the Court cannot look at a president’s motives.
Why and why not?
Why presume that the president is immune? As Trump keeps saying, ‘I could have someone shot in the middle of the street and not be blamed.’ Now, he has the backing to order assassinations whenever he wants, on whoever he wants.
When he ordered VP Pence to ignore the results of the electoral college decision he would now be immune from punishing Pence for disobedience.
And why can’t the court look at a president’s motives? They determine the framework for the crime. Motives would be major elements in a normal trial.
This is a ruling that could have come down from Hitler’s courts.
Perhaps it is not irrelevant that they specified that conversations between Trump and the Justice Department - themselves – are “absolutely immune” from prosecution.
To me, this is a smoking gun; it means that there must be records of conversations between Trump and the Republican Justices that would greatly damage their stature – and even their ability to escape justice themselves – if they came to light.
Their ruling on immunity pushes the final decisions down to lower courts. By the time anything is decided, the election will be over. Which is the real game we suspect was behind the delay. As quoted in Salon, Laurence Tribe, a constitutional law professor emeritus at Harvard University, said the Supreme Court has dragged its feet. “it's obvious that the court has deliberately delayed everything,” he said. “It could easily have issued a ruling much sooner.”
Justice Sotomayor dissented with the immunity ruling, saying that the justices “in effect, completely insulate Presidents from criminal liability. It is an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now.”
Back in the day, the court unanimously held that President Nixon could not invoke executive privilege to thwart a criminal investigation. In 1997, the court unanimously ruled that President Clinton had no immunity to protect him from a lawsuit for sexual harassment.
This Supreme Court does not like the possibility of challenges to its rule. Thomas, in two opinions, made himself a self-appointed expert on gun technology to avoid having to listen to anyone else when he gave on opinion that – bottom line – said people have a right to make their own weapons. He also said, regarding the Labor Relations Board and Starbucks, that the administrative agencies had gone beyond their allotted power. The Supreme Court does not like administrative agencies.
Thomas said the National Labor Relations Board had overstepped its mark in basically deciding that Starbucks could be stopped from firing a worker for trying to form a union.
Nonsense. Congress since the 1930’a has made it a right of workers to try to form unions.
Starbucks and other employers have been firing workers with glee who try to form unions.
This is going to make unionizing even more difficult than it already is.
It is bad enough that the Republican justices are ideologically back in the stone age. But the new abilities to ‘reward’ justices for their ‘right’ decisions has made everyone lose faith in the Court.
The Business Roundtable is a very powerful lobbying group in Washington made up of the CEOs of the biggest corporations in America. They provided a huge chunk of campaign cash to back an extension of the Trump tax cuts. Now, they want a tax cut for themselves and also for their corporations.
These people do not take the money and invest it in new machinery and productivity. They take the money and they put it into stock buybacks. That increases CEO pay because more and more CEO pay is in the form of shares of stock. As Robert Reich notes, this expands the deficit and the debt of the United States, which means we all have to go more into debt.
The Justices are totally on-side with business wishes.
And at the same time, they flagrantly use corporate cash for personal gain. And they are backed by elected Republican officials.
Sen. Lindsey Graham (S.C.), the top-ranking Republican on the Senate Judiciary Committee, and other Republican senators on Wednesday blocked a bill requiring the Supreme Court to adopt a code of conduct and create a mechanism to enforce it in the wake of several high-profile controversies. The legislation, the Supreme Court Ethics, Recusal and Transparency Act, would have required Supreme Court justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code and other laws and improve the disclosure of potential conflicts of interest.
Chief Justice Roberts was criticized on the Senate floor for not doing enough to enforce ethical standards on the Supreme Court after media reports revealed that conservative Justices Samuel Alito and Clarence Thomas received lavish gifts and hospitality from conservative donors. In fact, Thomas alone has received $4-million in gifts during his career, according to the watchdog group Fix The Court.
Then there is ‘income’ that is not reported as a gift, but that looks darned suspicious…
There are also personal political protections that the Court is arranging.
Thomas’ wife was implicated in the plan to attack the Capitol, and Thomas ran cover for her. There are concerns about Alito’s impartiality after two flags associated with former President Trump’s efforts to overturn the results of the 2020 election were displayed at his home and vacation house. He blamed his wife.
The Court also threw out an obstruction charge against many Jan. 6th rioters. The law targets anyone who "obstructs, influences, or impedes any official proceeding, or attempts to do so," but the court determined that its scope is limited by a preceding sentence in the statute referring to altering or destroying records. The decision was celebrated by Trump.
Alito took a luxury fishing vacation in Alaska with Paul Singer, a hedge fund billionaire, and accepted a private jet trip that would have cost more than $100,000 if he paid for it out of his own pocket. He has also been recorded as saying that America needs to return to a “place of godliness”, evidently forgetting that the US is founded as a secular, not a religious, nation.
Thomas had accepted many of his gifts from conservative donor Harlan Crow.
On the other side of wealth, the Court ruled that states are allowed to criminalize the homeless for sleeping outside. Evidently this is not “cruel and unusual” punishment, which would have been in violation of the Eighth Amendment. After all, the homeless can easily sleep indoors…no, maybe not…
The three liberal Justices were of the same mind as Justice Sotomayor, who wrote in dissent that “The [Court] majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.” She argued that “It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles.”
If it was possible, it was an opportunity for humanity that was rejected by the Republican Justices, who seem eager to follow their party’s moral attitude of cruelty and disdain.
The Republicans have recently blocked a bill requiring the Supreme Court to adopt a code of conduct and create a mechanism to enforce it in the wake of several high-profile controversies.
The Court now enters eagerly into areas where it has now expertise or experience. As noted earlier, a recent decision destroyed an earlier prohibition against machine guns, striking down a ban on ‘bump stocks’. Its decision allows civilians to convert AR-15–style rifles into automatic weapons that can fire at a rate of 400–800 rounds per minute. To reach this result, says Slate, Justice Thomas’ opinion for the court tortures statutory text beyond all recognition. They flout the “ordinary meaning” of the law, adopting an “artificially narrow” interpretation that will have “deadly consequences.”
A bump stock eliminates the need for a shooter to pull the trigger for each round. In a 2017 Las Vegas shooting, the shooter unleashed a spray of bullets without repeated pulls of the trigger, at the rate of an automatic weapon. He murdered 60 people in 10 minutes.
Bump stocks were illegal under a long-standing federal statute from the Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF). That’s because this law bans “any part designed and intended solely and exclusively” for “converting a weapon into a machinegun.”
Thomas falsely accused ATF of taking the “position” that bump stocks were legal, then “abruptly” reversing course after the Las Vegas shooting. This account is dead wrong: ATF took a careful, case-by-case view of different bump stock–like devices as gunmakers developed them, deeming some permissible and others unlawful. The gun industry pushed these devices into the mainstream by deceiving ATF about their purpose; in one case, for instance, a manufacturer won approval from the agency by claiming a bump stock was designed to accommodate people with limited hand strength—then turned around and marketed it as the next best thing to a machine gun.
After wrongly accusing the agency of a politically motivated about-face—and using this charge to discount its expertise and authority—Thomas adopted a highly technical interpretation of the statute that does not align with its text. A “single function of the trigger,” he wrote, does not mean a single pull of the trigger, but rather a complete “cycle” of the spring-loaded hammer inside the gun. Because the hammer (rapidly) resets to its original position between shots, Thomas concluded, “bump firing” involves more than “a single function of the trigger.” And because the shooter must “actively maintain” a particular stance to put pressure on certain parts of the weapon, the justice wrote, the resulting fire is not truly “automatic.”
Savor that logic: a gunman “actively maintains” a pull on the trigger. They pull the trigger and bullets fly out until they stop pulling on the trigger. Somehow that is different than a machine gun, where you pull on the trigger and the bullets fly until you release the trigger.
When Congress first banned “machineguns” in 1934, their “internal mechanisms” “varied enormously”: Some used triggers, others buttons; some relied on the shooter’s backward pressure on the weapon, while others harnessed the recoil produced by a bullet’s discharge. “To account for these differences,” Sotomayor wrote, “Congress adopted a definition” that encompassed all guns that fire continuously without any need for the shooter to reengage the trigger.
This means that the Court – specifically Thomas – “arrogates Congress’s policy-making role to itself”. Thomas arrogantly cast aside ATF’s interpretation in favor of his own amateur conception of how a true machine gun operates.
This is a matter of life-and-death…and the Court chose death.
The Court is also making itself the expert over medication, taking over the job of the FDA. When it rejected a challenge to the Food and Drug Administration’s decades-long approval of the drug Mifepristone for pregnancy terminations, it based its rejection on the fact that the plaintiffs lacked the standing to sue—not that the FDA’s expertise holds. This case will come up again, when someone invents a better standing, and the Supreme Court will – mark my words – rule against the FDA and its years of trials to presume that it has the expertise to overturn the distribution of Mifepristone.
The Court does not seem to consider the impacts of its decisions – it does not have to, because it is not accountable to anyone…it is unelected. Its rulings on abortion have led to higher infant deaths in Texas, for example, not a ‘right to life’ result. And more women are getting sterilized today than ever before – again, not exactly a right to life outcome. This had to be a wrenching and irreversible decision for thousands of women. What are we doing to our society? The Court is a wrecking ball, not a social stabilizer.
Alito’s take on the Roe abortion ban was exactly the same. It is patent nonsense. It is confused history and a reach to an unintended and invented concept called “originalism”. The Founding Fathers never intended their laws to be unchanging – they anticipated change and welcomed in. Alito’s ruling, as one expert said, goes on for pages and pages, 30 pages - there are 69 footnotes - and he says nothing. “Alito is probably the worst justice on the current Supreme Court, and that's saying a lot.”
But Alito does not have to fall back on originalism when he is searching for justification of prejudice. In Alexander v. South Carolina NAACP, he invented a new legal presumption of “good faith” to assume that legislators would not adjust electoral maps to push a district into racial discrimination, This is in South Carolina. Yeah, it has no history of racial bias.
Now he has allowed every state to stretch the law to discriminate against racial justice.
These illogical rulings are not coming about because the Court is rushing to judgement. The justices are completing decisions at the second-slowest rate since the 1946 term, according to The Wall Street Journal.
Further, a bitter divide has apparently emerged in the conservative wing of the Court between Amy Coney Barrett and Thomas over originalism. It seems that the invented the act of interpreting the Constitution as it was intended to be understood at the time it was written, actually requires further interpretation itself.
Control over the courts is a central path to power for Republicans, who can’t seem to get elected in very many places otherwise. A glace at the judicial balance of power will show how dominant the Red party is:
This means that America is being ruled not by the unelected Republicans, but by their proxies in the courts. The Republicans have had many years to figure out how to cheat the will of the people.
Soon to come up before the Court: the Louisiana injunction that schools have to display the biblical Ten Commandments in their classrooms. Someone is sure to challenge that, and it will come up before the Court. When Alito is already on record as saying that America needs to get back to biblical standards.
The Founding Fathers would be spinning in their graves if America turned into a religious commune.
Ultimately, the current path of American social and economic direction is being set by an unelected, unresponsive group of appointees from the Trump era. Being unable to change their direction is one of the great flaws in our system today. As Chief Justice Roberts made clear:
It’s just too bad.
I hope and trust that when Biden gets back in, he enlarges the Court to make these fascists obsolete, or does something else to adjust the balance.
Otherwise, we will continue to slide backwards, in fundamental elements of life: women’s rights, rights of the poor, corruption for the rich, and worst of all, a continuing power grab by an unelected council - a “Star Chamber” - where idiosyncrasy is at the helm and we are all headed for the rocks.