A terrifying thought about the Supreme Court (long)

Politics & Elections
1

The terrifying part isn’t the thought itself, which was always true but purely theoretical, but rather the notion that now it’s not purely theoretical. This actually could happen (and soon), though it is (I hope) admittedly far-fetched.

Since there is no way around the Supreme Court’s rulings (no higher court’s ruling, of course, but also no practical way for Congress as presently constituted to pass laws contradicting those rulings, plus no way the President can legally refuse to enforce those rulings), this means that the court can rule in favor of something absolutely crazy, completely without precedent and rational basis, and we would be stuck with it forever. And here’s my example:

The Court is now considering Trump’s loopy proposition that he was absolutely immune from prosecution for breaking any laws while he was president. Let’s say they not only rule that, yes, Trump and only Trump has total immunity, but the Court goes much further: they include in their ruling that he indeed, as he claims, did win the 2020 election, and their remedy for this miscarriage of justice is that he be immediately reinstated as POTUS. Further, they rule that the miscarriage was so extreme his term in office must extend indefinitely, i.e., he is to be appointed President-for-Life.

And let’s throw in that he may designate his own successor, who in turn has similar rights to rule for life and to appoint his own successor.

In other words, the Supreme Court turns our democratic republic into an absolute monarchy. Immediately.

I know, this is nuts, not worthy of our consideration, except for one thing: I believe that there are two justices (need I tell you their names?) who would do this in a flash, given the chance. And okay, a 7-2 ruling against this crazy proposition is no big deal. Except: there are four other justices, three of them appointed by Trump, who probably prefer (on a personal level) a MAGA absolute monarch to the prospect of a series of future Democratic presidents like Biden and Obama and Clinton that would defeat their conception of a properly run US of A.

So in my little thought experiment, Justices A. and T. (okay, I initialed them) approach Justices K., G., C.-B., and R., and tell them “We know this is pretty wild, but if three of y’all go along with it, we can get the sort of country all of us have always dreamed of, a country with strict pro-religious policies, a country run with absolute adherence to the needs of businesses above labor, a country where no insane woke liberal Democrat will ever get elected dogcatcher again, and a lot of other goodies besides. And we will never, ever, ever, get this chance again! Come on, guys, get with the program.”

In this thought experiment, three of the four decide, “Okay, let’s roll the dice on this one. Cool beans!” and VOILA! It turns from thought experiment into law. Joe Biden is told, in this ruling, to vacate the White House by next Thursday, and King Donald I’s reign begins.

Now call me insane (go ahead, I’ll wait) but the fact is that this is now a non-zero possibility. The likelihood exists, of course, that even A. and T. would be repelled by the concept, and there is a greater likelihood that K., G., C.-B., and R. would throw them out of their offices for making such a treacherous and heinous suggestion, but you can’t tell me there is no chance at all for this to happen and, worse, if it did happen, I don’t think there’s anything at all that could be done, practically, to counteract it.

There is no way that the GOP congress would impeach the five (or six) Justices who signed this ruling, and even if the GOP congress wanted to (hint: they don’t) it’s impossible to organize such a counter-measure by next Thursday. So legally King Donald I would be reinstated, and under his reign it would be virtually impossible to get him out of office.

My point is that this is a non-zero possibility. A. and T. are (in my view) sufficiently treacherous and irrational, and K., G., C.-B., and R. would at least entertain this abhorrent possibility for a few seconds.

It gets even worse, actually, if Trump were to get himself re-elected without this scenario, and replaces a few more Supreme Court slots with craven MAGA-crazy bootlickers like, oh, I don’t know, how about Aileen Mercedes Cannon, who would make K., G., C.-B., and R. look like Ruth Bader Ginsburg on crack. Unless I’m missing something about the supremacy of the Supreme Court, and the need for 67 Senators to impeach them immediately, they have the power (and in my view the will) to turn this country into a right-wing monarchy immediately and there’s nothing we could do to prevent them from doing it. Not a damned thing.

Unless I’m missing something. Am I? (Assume the answer “your marbles” has already been entered into evidence.)

2

I admit I skipped a bit through your post, but the Supreme Court is not all-powerful. Arguably, it is the weakest of our three branches of government. It is completely dependent on Congress to fund its operations and the executive branch to comply with its decisions. They don’t have any means to enforce their decisions beyond the expectation that they will be complied with. And a decision this insane would be ignored while the authorities check for a possible gas leak in the Supreme Court chambers.

3

Really? They’re “allowed” to go beyond the specific cases before them, right? So they could turn any Trump-related case into a ‘remedy-by-autocracy’ solution. Who is possibly authorized to tell them they can’t rule in such a manner? And if their solution is to install Trump by next Thursday, you don’t think there are thousands of MAGA people who want to see that the law of the land is enforced immediately?

To me, the least plausible part of my post is that 5 or 6 Justices will go along with this treacherous scheme. But if that happened (a fairly big if) I don’t see what a remedy would be.

4

It’s hard to engage with a hypothetical that’s this unrealistic, but Supreme Court rulings are not magic. They don’t enforce themselves. Almost no one in the executive or legislative branch (maybe MTG) would go along with this decision. As I said, it would likely be ignored in favor of a genuine concern for the mental wellbeing of the Justices.

As the (apocryphal) quote goes: “John Marshall has made his decision; now let him enforce it.”

5

I think you’re way underestimating the degree and the amount of crazy in Congress and in the military.

This admittedly far-fetched ruling would give them the cover to say that they are simply obeying the law, and anyone trying to stop them is violating the law.‘’

Let me ask you, though: do you at least grant me my basic proposition, that A. and T. would do this if they thought there were any chance at all of succeeding? Because that, in itself, is scary as hell and, in my view, accurate.

6

Virtually every R in the House and the majority of the Rs in the Senate would embrace the notion whole-heartedly. The military would never abide such a thing and any attempt to remove a valid president would be met with force.

7

I’ll be frank – this is batshit crazy, extremely paranoid thinking. I might be more onboard if the hypothetical didn’t literally posit the Supreme Court declaring Trump to be a king. There are all sorts of rulings I could see the SC making that would unjustly put Trump back in the White House, but this hypothetical is pure Trump derangement syndrome.

8

Of course, the court is too clever to use the word “king.” But they could make him an absolute ruler by simply reinstating him immediately, and reinforcing presidential powers, as he claims he wants, to do anything he wants. What you’re failing to acknowledge is the simple fact they agreed to consider whether or not he has absolute immunity from prosecution. In itself, that’s deranged thinking.

9

But could SCOTUS even rule on those additional questions if they weren’t at issue in the original lawsuit? Of course they’re free to include whatever batshit insane ramblings they want to in their ruling, but any lower court would be free to treat those ramblings as non-binding dicta.

10

Well, there’s the precedent of Andrew Jackson vs. John Marshall. AFAIK the “correct” answer on how things should work when a POTUS refuses to follow a ruling in that manner has never been resolved. In this case, I assume that Biden would pull an Andrew Jackson (and rightfully so, as opposed to Jackson having been in the wrong), and the men with guns are likely to follow Biden’s orders. Even if they don’t, that means that Trump would now be in charge, and the men and women in black robes, having fulfilled their function, would no longer be needed by Trump. With the precedent having been established that the US is now a country ruled by force of arms rather than law, they would soon find out that they are at the bottom of the pile.

11

Obviously, you and I aren’t going to agree here. In my opinion, however, these sorts of over-the-top hypotheticals are harmful. They draw attention away from the actual, more mundane ways that Trump and his cronies will use the judiciary to expand executive authority, corrupt elections and otherwise consolidate power without setting up a de facto hereditary monarchy. Much more fun to theorize about the later than focus on the boring, legalistic cases that will actually benefit a Trump Administration.

It also helps Republicans to have these sorts of hypotheticals out there because it makes what they do look more reasonable in comparison. “Making Trump king? Thats ridiculous! We’re merely clarifying executive authority. See how the left turns everything into a conspiracy theory?”

12

You do realize, don’t you, that I’m saying this whole farfetched scenario has a very small chance of coming true? Just not 0%.

You may be working off an outmoded model.

13

It would be time to refresh the tree of liberty.

It’s not a great remedy, and the cure will be almost as bad as the disease, but it’s always an option.

14

Pretty much this. Any such decision by SCOTUS would essentially be a declaration of Civil War. How would it turn out? I have no idea, but I think the likelihood that Samuel Alito and Clarence Thomas would be personally better off with a civil war as opposed to continuing the current way of doing things is extremely unlikely. They would almost certainly be worse off in such an event.

15

And do you think their recent displays of their thinking is a confirmation of their rationality? I think they’re openly admitting that they’re full-bore MAGA lunatics, and they don’t care who knows it.

16

There’s a lot that SCOTUS could do. But as mentioned previously, they’re a fairly weak branch, and they depend a lot on their perception of legitimacy as well as the cooperation of the other 2 branches.

I think the threat is more subtle and insidious than SCOTUS going openly hog-wild. It’s more like an endless drip of Bush vs. Gore type decisions that aren’t as dramatic as the OP lays out, but in the end have the same effect. This Court excels at concealing their hand while boiling the frog, though admittedly they’re not concealing their hand like they once did.

The threat of SCOTUS is in its willingness to be a pawn of radicals in Congress, rubber-stamping their worst authoritarian impulses. With 2 branches thus colluding, it’s not hard to imagine them massaging the rules to install a favorable POTUS. Having done that, then it seems fairly straightforward to pass down some outrageous decisions designed to provoke pushback and refusal from blue states. Then they simply declare those states to be “in rebellion”, dismiss their Congressional delegations, and start passing Constitutional amendments to solidify their reign permanently.

I’m dead serious about the “reverse secession” thing, I think that really is part of the long-term plan here.

17

ETA: I’m speaking here to the thread in general, and specifically not to the immediately preceding post that appeared while I was writing. And which post is thought provoking enough to deserve its own reply and perhaps even its own thread.


OP: In the sense that any monkeys with typewriters could write anything, even Shakespeare’s sonnets, the Supremes could write some crazy shit for any reason or no reason. Including the crazy shit you posit.

Which shit, if crazy enough, would result in their very rapid replacement by new justices who’re less insane. And a small footnote in the Court’s official history about a certain regrettable event that happened one day.

You can’t write a sensible counterfactual in which one entity goes utterly off their rails and meanwhile assume everybody else in the scenario acts like a Cylon clone operating strictly by their normal rules in what, by definition, is very much an extreme non-normal situation.

Well, one can write such a counterfactual, but it’s not something from which anyone else can reasonably reason forward.


IOW, you’re proposing the Supremes decide to play Calvinball one day and at the same time you’re saying everyone else must still play baseball by the book. Ain’t gonna happen that way.

If the Supremes decide one day to play Calvinball, everyone else will quickly join in their own version(s) of Calvinball. At which point all attempts at prediction are a fool’s errand.

18

I think they are getting to the line on “openly hog-wild.”

The Supreme Court has already tossed precedent and rational basis in the bin. They’ve taken originalism to the extreme and are deciding cases based on tradition (which can be almost anything they want it to be). It’s happening now. There is no “what if” about it.

I will say that these rulings are not necessarily forever. A future court may reverse these rulings and/or congress may undo some of it but it will take many years, probably decades to fix.

Legally speaking, Spectrum WT had a strong case. Since the 1970s, the Supreme Court has ruled that the First Amendment protects speech on public university campuses, “no matter how offensive” and despite “conventions of decency,” as two decisions put it. Wendler acknowledged that he was refusing to allow the drag show to take place “even when the law of the land appears to require it.”

But the lawsuit landed on the docket of Judge Matthew J. Kacsmaryk, a Trump appointee to the federal bench in Amarillo who is the author of several sweeping arch-conservative rulings. And in the drag-show case, Judge Kacsmaryk had a new tool, supplied by the Supreme Court. Known as the “history and tradition” test, the legal standard has been recently adopted by the court’s conservative majority to allow judges to set aside modern developments in the law to restore the precedents of the distant past.

The conservative justices applied the history-and-tradition test in three major rulings decided in the space of a week in June 2022. First, they struck down a New York restriction on gun ownership for being out of line with the nation’s “historical tradition” around regulating guns. Next, in Dobbs v. Jackson Women’s Health Organization, a conservative majority ended the constitutional right to abortion in Roe v. Wade because it was not “deeply rooted in the Nation’s history and tradition.” Finally, the court held that a public high school’s decision to let go of a football coach for praying with a crowd he gathered at midfield was out of line with “historical practices and understandings” of religious freedom.

19

The Supreme Court limiting itself in certain ways is the result of mere convention, true. But then, the lack of limits on the Supreme Court’s power is itself also a mere convention. If the Court said that Trump was now President instead of Biden, Biden could just say “No he isn’t”, and then it’s a question of whether various people (ultimately, the military) listen to the Court or to Biden. Heck, in extremum, if the Court ruled in such a ridiculous way, Biden could order drone strikes on all of the justices that ruled in that way, and then ask the remaining justices whether they think he was allowed to do that.

Your question basically amounts to “Someone could start a civil war. What happens if someone starts a civil war? Wouldn’t that result in a civil war?”

20

Plenty of autocratic countries have a supreme judiciary. They may be politically relatively toothless but they’re by no means “at the bottom of the pile”.