Supreme Abandonment
An aloof, indifferent Supreme Court slow walks saving America -- and maybe doesn’t save it at all.
A few weeks ago, scaffolding was going up around the E. Barrett Prettyman U.S. Courthouse in the nation’s capital. All was in preparation for the trial of a former president for his part in staging an attempted overthrow of the 2020 presidential election. It was a sign of hope: our system of justice would prevail. No man is above the law was coming soon to a courtroom near us.
But no sooner had the metal fencing begun to go up, it was ordered down. The U.S. Supreme Court had intervened – in a big and menacing way.
No wonder we’re worried…
After the District of Columbia Appellate Court issued what most believed was to be the definitive opinion on Trump’s bogus claim of immunity from criminal prosecution – for Jan. 6 and anything else he wanted to do after his presidency – Trump’s lawyers filed a motion with the Supreme Court to overturn the ruling.
Given what we know about the Republican-dominated High Court with three Trump appointees and two erratic – in temperament and ethics – justices, Thomas and Alito, suddenly, the wisdom of the Appeals court ruling was put in jeopardy. Add to this that three of the justices — Roberts, Kavanaugh, and Barrett — worked on Bush v. Gore, which stopped the Florida state law-mandated recount to decide the election for George W. Bush, and you have a possible crisis waiting in the wings.
Another “tell” is that there’s no obvious reason for the SC to step in this way. Its terse, one-page statement taking the case that was issued late last Wednesday seemed designed to enhance the mystery, especially in light of the thorough, detailed, covered-all-bases nature of the Appeals Court ruling.
The 57 page DC Appeals Court finding strongly, “perfectly” (according to Michael Luttig) laid out all the reasons why the presidential immunity theory Trump is peddling should be dead on arrival. Among the Appeals Court’s many gems renouncing Trump’s legal pitch includes this passage:
“We cannot accept former president Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power – the recognition and implementation of election results.” No mystery, ambiguity, or cause for wonder there.
Legal experts believed the appeal judges’ ruling was so good it was unlikely the high court would have the stomach or the need to revisit the issue. Just declare it “affirmed,” and move on, was the conventional wisdom. That would send the right signal to this democracy and those around the world worried about us but still enamored by our freedoms: Trump’s claims will find no quarter here.
In no hurry
But, concerningly, at a moment of national crisis our current Supreme Court was in no hurry to reaffirm that message or to hear the case itself. Instead of issuing a quick, forceful decision on a matter of national importance, they bought into Trump’s delay, delay, delay strategy and then wrapped it with a bow and presented it to him as some sort of pre-election birthday gift as shown by this timeline:
Feb. 11: Trump’s legal team files briefs to reverse the Appeals
Court ruling.Feb. 28: 15 days later, the Court announces it will take oral arguments on the issue.
April 22: Date slated for oral arguments to begin.
That’s more than two weeks to simply announce they would or would not take the request further. And an additional seven weeks for beginning another lengthy process of determining whether Trump’s appeal has merit.
Colbert and Hayes talk
In an late-night interview Wednesday with Stephen Colbert, MSNBC Host Chris Hayes discussed the Court’s actions, suggesting the Court was stalling for time, making it difficult it not impossible for the lower court to begin its trial before the election. The more time spent in unnecessary court proceedings, the more likely the case can be “pocket vetoed” before the election, Hayes said.
Colbert responded: “This sounds like they’re doing him a ‘solid’ — running out the clock and doing him a favor regardless of their (ultimate) ruling.”
Hayes answered: “There is a calendar on the wall. And every day you cross out in red is doing Donald Trump a favor. And everyone knows that – the Court, (Judge) Tanya Chutken, (Special Counsel) Jack Smith, and Donald Trump.”
Hayes added that the Court’s devil-may-care (my words) approach endangers a right owed to the American people. “The public has the right to know” whether a court of law has found one of the two leading candidates for the presidency to be guilty or not “of the greatest crime in American history.”
Back in the day, the Court acted differently
After all, to this aging Baby Boomer writer, previous Supreme Courts acted quickly in other high stakes historical situations. Like the one involving “the most important” Court decision since the Civil War – prior to this one – during the Watergate crisis that was adjudicated from start to finish in only 16 days.
Like Trump’s immunity claims, United States v. Nixon launched the Court into new territory as it had to deal with an July 8, 1974 executive privilege claim filed by Richard Nixon. The 37th president tried to hang on to incriminating audio tapes to prevent being prosecuted for his role in the Watergate break-in and coverup.
Citing “national interest” as code for “personal interest,” Nixon asserted he had the right to keep the content of the tapes secret. But a unanimous High Court ruling 16 DAYS LATER said otherwise. Chief Justice Warren Burger stated strongly that Nixon had no absolute, unqualified right to keep the information to himself.
Unlike today, the 1974 Court sent a clear, forceful, and timely signal to the people of the United States – and world – that no person, even an American president, was above the law.
But, wait, there’s more!
As if the 1974 Court’s swift action in the face of a national crisis weren’t enough, one of the Court’s justices followed through on a then-believed Court expectation to acquit himself honorably. Justice William Rehnquist recused himself from participating in the opinion because of a perceived conflict of interest: he held a prior job in Nixon’s Department of Justice as Assistant Attorney General for the Office of Legal Counsel (24 July2023 nationalconstitutioncenter.org). In contrast, Justice Clarence Thomas remains in the thick of this Court’s deliberations, despite his wife Ginni’s taking part in the Jan. 6 insurrection and attempting to overthrow the will of the people and re-install as president the losing Donald Trump. (https://www.nbcnews.com/politics/congress/ginni-thomas-meeting-house-committee-investigating-jan-6-riot-rcna49967).
To Thomas, and maybe most others on the Court, it does not matter that a vote for Trump would also be a vote to exonerate his wife’s involvement in the plot.
Shades of Pre-Civil War America
As with the Roger Taney Court’s 1857 Dred Scott decision, this Supreme Court doesn’t read the American room and understand it’s their job to protect American freedom and rights and not consign them to the dustbin of history.
Hope springs eternal???
Some court-watchers hold out hope the Court’s just doing its due diligence and that things could move quickly after the April 22 oral arguments. But the Court’s track record of breaking with legal precedent in overturning Roe v. Wade and ethical failings of three judges who have accepted favors from rich friends or influencers give reason to be skeptical.
Another reason is its slow-walking the announcement of the immunity hearing. If the Court’s intentions were honorable – i.e. respecting the national importance of the case to American voters and for history – the thinking goes, why let the former president burn through the calendar, risking the case’s ability to go to trial any time soon?
“If the Court wants to move fast and issue an opinion after April 22, they can, Hayes agreed on some level. “(But) do I think they will after what they’ve signaled today? Not likely,” Hayes said.
Everyone’s watching
But, Hayes added, the Court does so at its peril. “They should know everyone’s watching this and knows the score – the way they know the score. They can’t hide behind procedural complexity and anodyne (safe-sounding – my add) one pagers that give you some SCOTUS scaffolding and everyone moves about their day. We all know what they’re doing.”
Luttig weighs in
Michael Luttig, a former Republican and now Independent jurist and retired judge from the 4th Circuit’s Federal Court of Appeals has praised the D.C. Appeals Court ruling as “perfect” and in no way needing further extrapolation from the today’s Supreme Court justices. Better and stronger to let the lower court decision stand with a simple yet impactful, “affirmed” do the job.
So Luttig reacted with strong disappointment to yesterday’s terse decision to hear arguments on Trump’s bogus claims in April. “There was no reason for SCOTUS to take Trump’s Case. Today’s decision is momentous,” Luttig said (msnbc.com).
Giving America the cold shoulder
What’s especially troubling to The Resistant Grandmother (TRG) is the Supreme Court’s sense of aloofness — to democracy, no less. An apparent cold-blooded indifference, judged by their seeming lack of urgency as to whether or not an insurrectionist becomes president and maybe remains so, is chillingly disturbing.
And not having our back
As an aging Baby Boomer, I remember a Supreme Court stepping in strongly and clearly when needed. We could count on the high court having our back in big moments when it was an out-of-control president vs. us. But as Wednesday’s blandly written but explosive in content Court announcement shows, Americans can no longer rely on this new Supreme Court. It’s a frightening new moment in the American story. The High Court jurists should be siding with the American people and its government, not the insurrectionist wannabe dictator Donald Trump.
Writing our own ending
Now it’s up to voters, again, exhausted and disheartened as we may be in the moment, to write a satisfactory end to the 2024 election story…without the help of the United States Supreme Court.
– trg
Who I write for…
Thanks so much for reading!