Decades from now, an anonymous historian will dig through the rubble while researching his/her magnum opus, The Rise and Fall of the American Empire, and discover that the unfortunate collapse of a once great nation wasn’t the sole responsibility of a dude named Donald J. Trump.
Trump may indeed be this nation’s Emperor Nero, described in a Wikipedia posting as, “tyrannical, self-indulgent, and debauched.’’ (Sound familiar?) But in the here and now, the Supreme Court, in a series of mysterious, unfathomable decisions, has shied away from putting the brakes on the president-cum-dictator’s outrageous power grab in defiance of the Constitution the justices were appointed to uphold.
Trump and members of the high court aren’t alone in leading the nation down the road to perdition. There’s always Sen. Mitch McConnell, R-Louisville, retiring next year after 42 years of disservice, whose political maneuvering during his tenure as Senate Republican leader opened the door to three Trump appointments to the Supreme Court, which, ironically, may render the legislative chamber he adores irrelevant.
A study by the A-Mark Foundation determined that, with McConnell’s help, Trump appointed more unqualified judges than any president in the history of judicial ratings, based on assessments given since 1953 by the American Bar Association. And Trump will undoubtedly continue to do so although now, at least, he’ll be plowing ahead without McConnell’s navigation.
And that doesn’t even cover Mitch taking a powder when impeachment of the Lord of Mar-a-Lago was within reach.
But the Supreme Court is the real issue facing the nation here. Trump, to some extent, is doing something almost every president who proceeded him in office has endeavored to do – expand his power. In three years, he’ll be gone, although the damage he has wrought could go on for generations.
The court, on the other hand, renders decisions that are long-standing, so that an opinion reached decades ago still carries the power of law. So, the justices’ get-out-of-jail-free approach to reigning in Trump’s obvious and lawless excesses could carry longer term consequences.
Trump assumed office on Jan. 20. Since then, the court has frequently deep-sixed lower court orders carrying any adverse impact on the administration’s goals The White House on Monday released a list of “21 Supreme Court Victories’’ involving cases where Trump lost at the lower court level only to be resuscitated by Chief Justice John Roberts and the court’s increasingly right-wing majority. According to the Brennan Center for Justice at New York University, many of those decisions contravened the lower courts that “had issued preliminary rulings indicating that the policies were likely illegal or unconstitutional.’’
With the court on hiatus until the fabled first Monday in October, most of those curious decisions were rendered through what is popularly described as the “shadow docket,’’ intended to address emergency appeals with decisions being rendered without oral arguments and, generally, little or no explanation.
The Court has involved itself without offering any analysis in several cases, the Brennan Center noted, “including major rulings that allowed the administration to strip temporary legal status from hundreds of thousands of immigrants and summarily deport migrants to countries where they have no connection, including war zones.’’
Some of those cases might eventually be argued before the high court if the justices issue a writ of certiorari. But the court’s actions are leaving the impression that changing direction after already issuing some sort of a judgment would be analogous to trying to put toothpaste back into the tube.
For instance, in July, the Supreme Court held that Trump’s initiative to bleed the Department of Education to death can continue apace. A federal judge in Massachusetts had previously issued an injunction ordering the administration to stop gutting the agency and to “restore the Department to the status quo.’’
Under the Constitution, Trump can’t kill the Department of Education outright, so he executed a run-around, firing about 1,400 employees in what was characterized as “streamlining.’’ U.S. District Court Judge Myong J. Joun wasn’t fooled, writing in her decision, “A department without enough employees to perform statutorily mandated functions is not a department at all.’’
The Supreme Court let the slaughter proceed – without explanation.
Another case involves Trump’s obsession with using masked goons from the Immigration and Customs Enforcement – basically his own, private Stasi – to pick people off the street willy-nilly.
U.S. District Judge Maame Ewusi-Mensah Frimpong ruled earlier this year in Los Angeles that ICE agents couldn’t detain individuals for violating immigration laws based on racial profiling, citing previous rulings holding that such a restraint was a clear violation of the 4rh Amendment, which offers protections from unreasonable search and seizure.
Based on those findings, the lower court temporarily halted ICE agents from making arrests or stops without reasonable suspicion. The Supremes this week again caved in to Trump, thus allowing ICE agents to stop any brown skinned folks on the street who speak Spanish and/or work menial jobs.
Justice Brett Kavanaugh, in a brief opinion, essentially said detaining folks through racial profiling is no big deal in immigration cases and that folks should buck up. Justice Sonia Sotomayor, citing a 1975 case that found it was unconstitutional for the Border Patrol to stop a car and detain its occupants based on the appearance of Mexican ancestry, offered different thoughts.
“The Fourth Amendment protects every individual’s constitutional right to be ‘free from arbitrary interference by law officers,’ she wrote. “After today, that may no longer be true for those who happen to look a certain way, speak a certain way and appear to work a certain type of legitimate job that pays very little. Because this is unconscionably irreconcilable with our nation’s constitutional guarantees, I dissent.”
All of this amounts to the Court majority embracing the concept known as the unitary executive theory, a long-time conservative dream, that maintains the president has sole and absolute control over the executive branch of government, essentially rendering it his play pretty for four years. It’s the unitary executive theory that allowed Trump to fire at will a member of the National Labor Relations Board, even though it was established by an act of Congress where members are granted specific terms and are confirmed by the Senate.
A lower court prohibited the dismissal. The right-wing Supreme Court majority told Trump to carry on. Justice Elana Kagan, writing in dissent, noted that the decision overturns a 1935 high court opinion, Humphrey Executor, which limited a president’s power over agencies created by Congress.
Kagan said the shadow docket decision “has effectively expunged Humphrey’s from the U.S.”
“By means of such actions, this Court may facilitate the permanent transfer of authority, piece by piece by piece, from one branch of Government to another,’’ she said.
And that’s what they’re doing. Instead of an even-keeled government with co-equal branches as designed by the founders, the Court is transforming the president into a king, rendering the legislative and judicial branches subservient, denying them of the ability to provide little, if any, oversight into the executive’s doings. It started during the Court’s last term when, in an opinion written by Roberts, an abject failure as chief justice, the president was provided protections from prosecution for any alleged felonies during his time in office.
This was all made possible to large degree by our boy Mitch, who set about creating a court that has provided the resident of the White House with powers unknown to previous occupants.
As a result, the authority of the Senate he once led is diminished. Trump, for instance, has seen fit to hold on to $4 billion in foreign aid that was passed by Congress in clear violation of the Impoundment Control Act of 1974 and Court precedents. Is there any reason to believe, under the unitary executive theory, the Court won’t fall in line with Trump once again?
It was McConnell who infamously, as Senate majority leader, refused to even consider President Barack Obama’s nomination of Merrick Garland for the Supreme Court. That nomination ultimately fell into Trump’s hands and he went with now Justice Neil Gorsuch. Then, with the 2020 election looming and prospects for Trump’s re-election looking dim, he forced through the nomination of Justice Amy Coney Barrett. In between, he successfully managed a third Trump nominee, Brett Kavanaugh.
All three now play vital roles in handing the keys to the kingdom to Trump.
“Mitch McConnell used his political power to hold as many judicial openings as possible during Obama’s presidency, and sought to fill those openings with conservative nominees under President Trump,’’ the A-Mark Foundation concluded in its report, “How Did Mitch McConnell Shape the Federal Judiciary?’’
The result of that plan is already on display in recent rulings and will continue to reverberate in the coming years.