I think that Trump assumed that they’d keep their eye on the polls, realize that Roe v Wade was good for money raising and bad for politics, and that his Republican picks would do the same thing as the other Republican justices, in the majority for the last 50 years, had done and preserve the status quo.
The difference, of course, is that Trump’s a moron and didn’t actually spend the time to make sure.
There were a few things, like the Infrastructure Bill, that it seems like Trump actually got involved in and tried to do something about, as President (granted, I think his interest in that one was that he knew enough people in construction that he hoped to direct money to his own business interests). But in general - and often by Trump’s own admission - he simply left everything for others to figure out.
I’d assume that he figured that someone else must have vetted these people for basic political sense.
Mike Pence, on the other hand, he would have actually chosen judges of this bent on purpose. In general, he’d have done everything that Trump did and more, because he’d have actually believed in it. They just got lucky that Trump was able to be swindled into taking their picks. During the next administration, it will just depend on who’s on his ear at that moment and what helps Donald the most at his primary objective: Make headlines.
Yes. This. Federalist conservatives intoned for years about the problems with judicial activism They were lying. At its core judicial restraint implies respecting precedent: indeed, conservative whiners went way beyond that when they criticized Roe. There’s no SCOTUS decision that Roe overturned.
I’ll give the corrupt conservative majority Dobbs, because they have campaigned on that for years. You might give the conservative majority one other, or one-half other. But combine the above list with Bush v Gore, along with McConnell’s refusal even to grant Senate hearings to Obama nominee Merrick Garland, as well as flat-out bribes paid to conservative judges, and the evidence for corruption is overwhelming. We are beyond partisanship and prejudice and well into an entirely different territory.
But only two of your citations are actually overturns of Supreme Court decisions. And Brown v. Board of Education established overturning a previous SC decision itself as a precedent.
I haven’t reviewed that, but it doesn’t matter. Staris decisis doesn’t just apply to Supreme Court decisions. When practice is entrenched for 90+ years and constitutional concerns could go either way, staris decisis should prevail in order that the law be predictable and not just subject to the whims of the court. The Jarkesy decision is a triumph of ideology, partisanship, and keeping Thomas’ and Alito’s donors happy. And Trump v US is risible on its face, creating the doctrine of presumptive immunity out of whole cloth so that it can be applied to Republican Presidents but not Democratic ones.
Brown v Board of Ed is comparable to Dobbs insofar as it was a significant shift in SCOTUS decisions coming out of a long multi-generational debate. There are differences: Brown v Board of Ed was based on new information and new research which the authors claimed justified overturning precedent, in an unanimous decision. Not the case with Dobbs. Still neither of the 2 decisions were surprise attacks: both had some organic basis in jurisprudence and politics over the preceding decades. So like I said, I have a carve-out for Dobbs. If the public doesn’t like having this right taken away (they don’t) they can express this at the ballot box, just as bigotted Southerners did after the Civil Rights Act was passed.
Agreed that it’s a terrible decision, but what about it indicates that it can be applied to Republican Presidents but not Democratic ones?
If Biden, for instance, were as we speak committing “official acts” that strongly tipped the scales in favor of Harris in key swing states, how would this decision not apply? Could all the legal challenges to these acts possibly make their way to SCOTUS in time for them to rule against Biden?
This is incorrect. The Court overturned prior Supreme Court decisions in at least four of the cases cited by @Measure_for_Measure:
Loper overturned Chevron
Dobbs overturned Roe
Shelby County overturned three prior Supreme Court decisions that had upheld the Voting Rights Act: Georgia v. U.S., Rome v. U.S., and Lopez v. Monterey County
By making the courts (especially the Supreme Court ) the arbiter of which acts are official enough to be immune and which are not. The Court created a vague test to overcome presumptive immunity for official acts so as to ensure further litigation over them that the (currently 6-3) Supreme Court will decide on case by case bases.
This is a similar tactic as the Court’s decisions in Loper and Jarkesy, in which the Court seized interpretive and enforcement powers. Those decisions have shifted power to the courts (most especially the Supreme Court) far more than most realize, IMO.
And Trump v US is risible on its face, creating the doctrine of presumptive immunity out of whole cloth so that it can be applied to Republican Presidents but not Democratic ones.
“Who’s to say they wouldn’t rule in a Democrat’s favor?”
Because partisan conservatives have a 6-3 majority in the Supreme Court. There was evidence of judicial restraint and principle-based consistency among conservative jurists before 2000. I’m not seeing it now. Thomas and Alito are pure hacks. Chief Justice Roberts created the doctrine of presumptive immunity - which lacks any basis in legal history - for its flexibility in protecting Republican dictators and slapping down Democratic constitutionalists. Amy Coney Barrett, displaying her signature lack of self-awareness, denied being a complete partisan hack in her speech at the Mitch McConnell Center, with the man himself smiling in attendance.
The court is corrupt. The court must be transformed - 9 sitting judges are not mandated by the constitution. Carthidge SCOTUS corruption must be destroyed.
There is ample evidence of partisan bias on the part of the Court’s majority. The majority has abandoned judicial principles in numerous recent decisions to reach politically-favored outcomes. Two justices have been caught accepting lavish gifts from politically active billionaires who had business before the Court. One of those two refused to recuse himself from cases involving the Jan. 6 insurrection despite his spouse’s involvement. The other has been flying flags sympathetic to the insurrectionists. And the majority has been recently willing to use the emergency (aka shadow) docket to advance political outcomes.
So there is good reason to anticipate that partisan bias will inform the Court’s decisions on individual presidential immunity cases.
Yes, absolutely, via a couple of means. First, the Supreme Court has original jurisdiction over disputes between states. So if a state AG brings a case against another state, the Supreme Court may calendar and hear that case at a schedule of the Court’s discretion. Second, as noted above, the Court has lately been exercising its appellate jurisdiction to enjoin federal executive actions via its emergency docket (shadow docket). Those cases can get to the Court quickly, at least for preliminary injunctions.
As an aside, whether the Court would find certain acts exclusive/preclusive and thus absolutely immune, within the outer perimeter of presidential authority and thus presumptively immune, or unofficial and thus not immune, are separate and to an extent irrelevant questions. The immunity decision didn’t really expand presidential authority; rather, it created immunity for otherwise criminal acts that are within the president’s authority (subject to the Court’s whims).
Put another way, the Court can quickly enjoin presidential actions without considering the question of immunity and has in fact done so many times.
I’m well aware, but thanks for the recap. My badly made point is that the ruling should theoretically apply as equally to Biden’s actions as it does to Trump’s. Of course there’s nothing to stop this corrupt Court from applying it differently.
So, if (as I’m urging in another thread) Biden were to order the immediate arrest of Trump as an ongoing threat to national security, the Court could theoretically take it up overnight.
Maybe Trump’s not the only one who should be locked up as an ongoing threat to national security.
Thanks for the excellent post, in its entirety. You’ve laid it out so well.
It’s not hyperbole about SC Justices being partisan and engineering their rulings in ways we’ve never seen before. This is a dreadful and frightening development for us all. I encourage everyone to start paying attention to it, because this currently-constituted SCOTUS is going to affect our lives in ways you never imagined. And not in a good way.
To paraphrase the OP, I think it’s corrosive to a reality-based perspective to believe that Supreme Court justices act out of “judicial professionalism”.
The great majority of the time, justices search for (or get their staffs to dig up) excuses to make rulings in accord with their partisan views and prejudices. That’s always been the case. It just seems to be more blatant and destructive now.
Hard disagree. I’ve watched the Court for 40 years. It’s true they all bring a partisan bent to the bench. In the past, they’ve nudged rulings toward a particular outcome. But they worked within the framework of the Constitution and for the most part, within the bounds of stare decisis.
All that is right off the table now, and that’s before you even get to the abuses of the Shadow Docket as outlined by @Ulysses.
This is a different Court. Normalizing it is dangerous.
What I find alarming as much as anything else, is that the SCOTUS seems to be focusing on the short term. What can these rulings do to help the right people today. They don’t seem to care about long-term consequences. Because you’re right; within a decade or two after a handful of the current justices retire (or time takes them away) you might be looking at a court that is more balanced or even one that tilts left, and these tools they have that give full discretion to the court might be used against the right. But they don’t seem to care about that.
And that seems backwards. SCOTUS should be about setting (and honoring) precedence. It’s not about resolving individual legal disputes, that’s what lower courts are for. It’s about making decisions that will be used for generations, even centuries. Instead, they’re trying to satisfy a handful of people today by helping them get away with stuff or obey a promise like ending national abortion rights.
Unless, and this is what worries a lot of us, you assume that those short term gains are going to never be allowed to apply to a non-conservative majority again. Which, with unlimited bribery, dark money, and executive immunity even when overturning elections…
Well it paints a very dark picture, which I’m sure is in the back of your mind but you’re a touch too polite to mention out loud as it were.