Who will save us from this bent Supreme Court?

By Legal Correspondent Saori Shiroseki

Another week, and another set of fresh outrages from our Republican-bent Supreme Court.

In their ceaseless effort to re-elect whatever Republican is running for President to ensure that the Court will continue to be packed by bent extremist Republicans like Sulky Sam Alito and Brett “It just wants some fresh air” Kavanaugh, the Court produced two terrible decisions relating to the Tangerine-Faced Defendant's effort to seize power and avoid justice until he is able to fire his prosecutors.

Arguably the worst decision was contained in a one-page order setting down the TFG's appeal of his crapcan total immunity argument for April 25.  The Court knows full well that the immunity claim is ridiculous and must eventually fail, but its goal is to make sure that the insurrection trial doesn't take place before the election. 

Let's look at the record.

Judge Tanya Chutkan rejected Trump's preposterous immunity claims in a careful opinion issued on December 1, 2023.  To expedite consideration of any appeal, Special Counsel Jack Smith urged the Supreme Court to decide the matter directly, bypassing the D.C. Circuit.  

On December 22, the Supreme Court denied the request without explanation.

This not just in: the Supreme Court is bent

The D.C. Circuit duly heard the appeal on an expedited basis on January 9, 2024 and issued its opinion knocking down Trump's frivolous arguments seriatim on February 6, 2024. 

Some pundits thought that the Supreme Court's December denial suggested that they might just let the D.C. Circuit decision stand.

Wouldn't it be pretty to think so?

After sitting on the petition for Supreme Court review (which your mansplaining law school ex-boyfriend called “cert.”) for over two weeks, the Court on February 28 in its wisdom granted cert., blocked further proceedings, and set a hearing date almost two months in the future.

Funny they didn't take nearly that long to award the 2000 election to Republican George Bush.  It took them four days.

This time, though, no one expects a decision until mid- to late-June at the least.  So four days to hand the 2000 election to the Republican, and four months before they will let a Republican stand trial for his insurrection.

Are you beginning to think this game isn't on the level?

And who knows how this Court will f*** up the obvious conclusion?  It could even say that there may be limited “official acts” immunity, pull some ad hoc standards out of Alito's blowhole, and demand that Judge Chutkin decide count-by-count whether the charged acts are “official ” before trial.

Even if they follow the law and uphold the D.C. Circuit, if the decision doesn't come down until the end of June, it may difficult if not impossible to hold a trial before the election.  Which is what the six bent Republican Justices want.

It might even lead to trying and convicting the President-elect on insurrection charges in November, before the Electoral College and the Congress meet.  Then what?  

Which brings us to the second pro-Trump opinion they issued in February: overturning Colorado's decision to bar the Former Insurrectionist-in-Chief from the ballot, contrary to the plain text of Section 3 of the 14th Amendment of the Constitution, which had been passed after the Civil War to prevent insurrectionists from holding federal office.  Like the Presidency.

While all Justices, including the three unbent ones (and we'll get back to them), overturned Colorado's decision on the grounds that one state can't set standards that would affect a national election (unless they are intended to disenfranchise minority voters or put third-party spoiler candidates on the ballot like Ralph Nader or Jill Stein, which is OK, apparently), the Republican majority went well beyond what was needed to decide the case to pronounce that Section 3 a dead letter in the absence of legislation.

The unbent concurrence had some fun with this:

“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Dobbs ... (ROBERTS, C. J., concurring in judgment). That fundamental principle of judicial restraint is practically as old as our Republic. This Court is authorized “to say what the law is” only because “[t]hose who apply [a] rule to particular cases . . . must of necessity expound and interpret that rule.” Marbury v. Madison....

Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future. 

This modest jape at the expense of John Roberts '76, which would have gone unnoticed by 99% of the public, provoked a hissy fit from Handmaid Amy Comey Barrett:

In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.

Speaking of Courts settling politically charged issues without stridency, here's just a few highlights from the opinion she joined in Dobbs, which took away the reproductive freedom that 170,000,000 American women had enjoyed for over half a century: 

“Roe was egregiously wrong from the start,” [the opinion] said. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. ...Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being,...”

Imagine what Alito would have written if he wanted to be strident.

But our point isn't that Amy Coney Barrett is a prissy hypocrite.

Our point is the one that dissenters on the Court have been making throughout this century: this Republican-bent Supreme Court is not a judicial institution but an illegitimate House of Lords, legislating according to its own terrible political preferences.

The question is what to do about it. 

Despite their grandiose behavior, the Supreme Court can be brought into line easily in one of three ways: (1) enlarging the Court with some new seats, (2) enforcing term limits for Justices (although probably not the bent six Republicans already there), or (3) limiting its power to f*** things up by for example taking away their ability to enjoin federal action prior to judgment or to void certain types of legislation (like voting rights).

We don't have space here to deal with the usual whines about these fixes, which run along the lines of how dare Congress politicize the Court.  But it's the Court that politicized itself and it's the job of the branches who were in fact elected by somebody to bring it back into line.

Then there's the argument that if a Democratic Administration can add seats and limit jurisdiction, a later Republican Congress could do the same thing. Of course they could and they will if they have to whether or not we beat them to the punch. In the long term, the rehabilitation of the Supreme Court into an institution devoted to justice and not reactionary Cathlolic extremism depends upon the will of the American people to make it so and keep it. No one is coming to save us.

Some brave souls have already advocated for some or all of these things, like our very own Sen. Ed Markey.  And some legal academics have weighed in as well, like Penn's Kermit Roosevelt, a surname not normally associated with treason.

But imagine if the pressure to fix the impossibly broken Court came from inside the building.  Three eminent justices in their dissent to Dobbs said:

The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law

That's a plain statement of the illegitimacy of the current Supreme Court. Why shouldn't the three Justices who said it (Sonia Sotomayor, Elena Kagan,and Stephen Breyer) take the obvious next step and say publicly to the political branches that it is their job to fix it? 

The Supreme Court is out of control

There's no good reason why they shouldn't speak in some public forum (hell, we bet Breyer could wangle a slot at Harvard Commencement) and do what George Marshall did 75 years ago: demand urgent political action.

Their action will be seen by the usual suspects as some sort of bad faith undermining of the Court as a national treasure of dispassionate justice.  But the Court lost that reputation almost 25 years ago:

this highly politicized matter....runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure.  

Bush v. Gore, 591 U.S. 38, 157 (2000).

What's the point of pretending the Court is acting as a court when it indisputably is not, according to the unbent Justices who sit on it? 

We'd argue that the maintaining the false pretense is itself dangerous because it helps perpetuate the injustice and corruption of the six Republican wardheelers in robes.  

Imagine how powerful the effect would be of three past and present Justices admitting that the current Court is not only strutting down First Street NE naked, its pubes flying into Coke cans all over Capitol Hill, but that the time has come for the President and the Congress to fix the ongoing coup against democracy with appropriate legislation.

Indeed, the time came in 2000. 

Pretending since then that nothing is wrong has led us to observe helplessly the plight of 26,000 pregnant rape victims in Texas and the outrageous stacking of the criminal justice system deck in favor of a corrupt Russian-owned insurrectionist criminal defendant.

The supposed treasure of the Supreme Court's commitment to the rule of law was looted years ago and the Nazis have loaded it onto a plane to Berlin.  It would be great if Stephen Breyer could like his contemporary Indiana Jones rise to the occasion and crack the whip.