I hope the Supremes come through for us on the big abuse of power cases that are rolling through the system, I really do. I wish I was more confident that they would.
Mark Joseph Stern at Slate reminds us:
As the first Supreme Court term of Donald Trump’s second presidency draws to a close, one particularly alarming throughline has emerged: The court’s decision in Trump v. U.S. nearly one year ago has emboldened the president to challenge the limits of judicial authority to their breaking point. The Supreme Court’s 6–3 decision granting Trump sweeping immunity from criminal prosecution looked disastrous from the moment it was released in July 2024. Its impact has only grown more dire since then, as a string of emergency orders and late-night rulings from the court in response to Trump’s daily assaults on the Constitution makes plain. At the time, the most immediate consequence of Trump v. U.S. appeared to be its derailment of special counsel Jack Smith’s effort to try Trump for his attempted subversion of the 2020 election. And that outcome undoubtedly bolstered Trump’s successful campaign to retake the White House by taking a Jan. 6 trial off the table before November 2024.
The true ramifications of this have only begun to be clear. I don’t think I need to reiterate the massive abuse of power and corruption we’ve seen in just these first four months. Did the majority fail to see the possibilities? Do they care? I think they should …
The majority may have also failed to foresee the ways that Trump would use the decision to diminish the court’s own power. Having freed the president to burst past existing constitutional restraints, the justices must now try to preserve their own authority from executive encroachment. In case after case since Trump’s restoration, the court has tried to have it both ways, reeling in some of his most extreme actions—while still giving the GOP most of what it wants—without entirely ceding its own power to tell the president “no.” And so a malignant dynamic is now unfolding between an imperial court and the president whom it crowned “a king above law.” The conservative supermajority continues to pursue its own agenda, which includes an aggressive expansion of executive authority. But it is doing so at the worst possible time, when the presidency has been captured by an aspiring authoritarian who defies all constitutional constraints. So the Supreme Court is caught between its own desire to shift the law rightward and its fitful inclination to shoot down Trump’s most extreme moves—if only to preserve its own power.
Stern goes into the immunity ruling, written by Roberts that set the state for all this. It’s truly stunning that he didn’t see this coming and since he’s not an idiot I have to assume he may have. Or perhaps he just didn’t think anyone as stupid, avaricious and unstable as Donald Trump would ever be elected again and in any case, it seemed clear they were working off of the fantasy that the Democrats were “weaponizing” the system to get Donald Trump. Fox News Brain Rot. And they were anxious to take the opportunity to enshrine the Unitary Executive Theory into law. But as Stern points out, Roberts took it much further, creating whole new adventures of “unitary” powers that hadn’t been part of the argument:
As Harvard Law’s Jack Goldsmith has detailed, Roberts then went much further: He declared that much of the president’s misconduct was not only immune from prosecution, but also from any kind of regulation or oversight by Congress or the courts. By doing so, the chief justice placed a patina of constitutional legitimacy over Trump’s conspiracy to steal the 2020 election, announcing that some of his most notorious abuses of office could not be halted or punished by the other branches, except through impeachment and removal. These novel claims, Goldsmith points out, were not even briefed by the parties or addressed by the lower courts. It appears that the chief justice simply spotted an opportunity to enshrine them into precedent and decided to shoot his shot. This rushed and reckless approach created a roadmap that Trump would easily exploit from the moment he returned to the White House.
If that’s the case they almost certainly didn’t anticipate that it would end up threatening their own power to restrain the executive, creating a form of dictatorship.
Stern points out that there has been some pushback. Unfortunately, it’s been halfhearted and intermittent:
The majority seems at once delighted that Trump is creating opportunities to shift the law rightward yet distraught that he sometimes pushes to the point of encroaching on the court’s own power. Its solution, for now, is to continually stake out middle ground when conflicts between the two branches’ agendas arise. By doing so, the court is all but encouraging the administration to test, if not blow past, the limits of its own decisions. It has repeatedly endorsed the president’s interpretation of Trump v. U.S. as a near-boundless grant of executive authority. No one should be surprised when Trump concludes that the bounds of his power extend well beyond the Supreme Court’s own rulings.
Maybe they should have thought of that before. They had to know that Trump was, at best, an imperfect vehicle for their precious unitary executive theory. They knew he was running and had a good chance to win again. I’d guess most of them thought that would be great. Did they honestly not see what he was promising to do? Or is it that they just didn’t care? Maybe they like the idea of being rubber stamps for a madman. Let’s just say I wouldn’t be surprised.
If you have a sub. to Slate I urge you to read this. It’s quite good, if somewhat depressing. I hope they do the right thing. But I’m done listening to anyone who says “they’ll never go along with that…” We’ve seen exactly what they’ll do.