Well, that was a hell of a week for the Supreme Court.
If you don’t think by now that we are in the midst of an authoritarian takeover of our country—a slow motion coup d’etat—then you’re just not paying attention.
It was hard for me to work up the energy to write this week’s post. Like many people I know, I haven’t been this discouraged since election night 2016 itself.
Up until now I have maintained a optimistic outlook (possibly irrationally so) that Donald Trump will eventually be brought down one way or another, likely through some combination of prosecutorial diligence and his own manifest criminality, incompetence, hubris, and overeach.
Now I’m not so sure.
Two weeks ago the Supreme Court handed down the latest in a series of 5-4 decisions along purely partisan lines, all advancing the right wing agenda: rulings on antitrust law, the Voting Rights Act, the Muslim ban, public unions, and others. These latest rulings suggest that the right wing justices on the once-revered Supreme Court of the United States are just another group of quislings who will abet and defend Trump to the bitter end. Don’t believe me? Look at the track record of this Court’s conservative members (not that that term applies anymore) going back to the 2000 election and Bush v. Gore.
As if that were not depressing enough, hot on the heels of these decisions came the body blow that Trump would have the opportunity to further tilt the Court in his favor by choosing a second justice…..and there is no reason to think his eventual choice, Mr. Kavanaugh, will not follow that same pattern.
All this is a very grim omen if anything in the Mueller probe has to come before this GOP-dominated SCOTUS.
I don’t say that lightly. I don’t say it wth animus, but on the contrary, with sorrow for a group of public servants whom I once inherently respected (for the most part), despite my vast differences with some of them. In fact, I’ll confess to being a bit of a Supreme Court fanboy. Not an insane one, but an interested and generally admiring follower nonetheless. If the Supreme Court were the Grateful Dead, I’d be, like, a guy who’s been to a lot of shows and has a bunch of Dick’s Picks boots, but not, like, a guy who quit his job to live in a van and follow the band and sell grilled cheese sandwiches in the parking lot.
But I have not yet seen any evidence that these undeniably intelligent and allegedly impartial jurists have not become simple partisan hacks. Should push come to shove, I have no confidence that they would stand up and rule that President* Trump must comply with a subpoena, for instance, let alone that he could be indicted for crimes while in office, or for that matter, that he can’t institute martial law and suspend the 2020 elections on the grounds of “national security” (which was his argument in the Muslim ban that they just upheld).
Indeed, courtesy of the Washington Post, here is all you really need to know about why our fake president picked Brett Kavanaugh, a man who began his career as a GOP lawyer in the ridiculous hyperpartisan Vince Foster investigation that led to the impeachment of Bill Clinton:
Kavanaugh has since argued that presidents should not be distracted by civil lawsuits, criminal investigations, or even questions from a prosecutor or defense lawyer while in office.
Wow. That’s right, hard as it is to believe, Kavanaugh goes even further than that demented vampire Rudy Giuliani in stating that a sitting president not only can’t be indicted, but shouldn’t even be investigated while in office. That is a shockingly imperial position—not to mention a violent and suspicious about-face—and one that I don’t think escaped the notice of Team Trump when they were considering Kennedy’s replacement.
But if at this point you’re still shocked by brazen Republican hypocrisy, I suggest you see a neurologist.
I am quite sure that if the tables were turned and a Democratic president were under that kind of fire, the Court would rule that he (or she) absolutely had to submit to the rule of law. They certainly ruled that way when Kenneth Starr—with the able assistance of a young Brett Kavanaugh—threatened Bill Clinton with a subpoena in 1997. (Four of the justices who joined in that ruling, including Clarence Thomas, are still on the Court today.) Until recently I thought they would show similar backbone and integrity with Trump, should it become necessary; that, after all is their job, and what they are revered for. But the past two weeks shook my faith on that count by a lot.
Let’s just review for a moment, as the current state of affairs bears repeating. Among a group of nine that is already predisposed to rule in his favor, Trump is about to have two (count ’em) justices on the Court who directly owe their impossibly enviable positions to him, as they prepare for the very likely possibility of making epochal decisions affecting his presidency and even his criminal prosecution. And regardless of Trump’s own fate, this heavily far right Court will of course wield enormous power for generations to come, an invaluable resource for a radical Republican party that for years now has been actively engaged in undermining our democracy, consolidating its own grip on power, and advancing its retrograde agenda—now extra super retrograde, if not openly neo-fascist, thanks to the orange-faced frontman they accidentally stumbled upon.
Yeah—not the best couple of weeks.
TONY TONY TONY
Seventeen months into Donald Trump’s, ahem, presidency*, Mitch McConnell’s obstructionist campaign to block President Obama’s Supreme Court nominee Merrick Garland is looking more and more like one of the most important episodes in contemporary American history. (See The Ghost of Merrick Garland in these pages, November 25, 2017). And the saga continues with Anthony Kennedy’s horrendously-timed decision that this would be the perfect moment to let Donald Trump (Donald Trump!!!) put a second justice on the Court.
Thanks a lot, Tony.
I don’t care that he’s 81, or about his lifetime of “service,” or his allegedly well-deserved retirement. I’d say his record is mixed at best, especially lately. True, he has been the swing vote on a few key cases that advanced the progressive cause, including marriage equality and the defense of Roe v. Wade. But just as often—and recently, with depressing consistency—he has sided with the Court’s right wing bloc. The timing of his exit should disabuse us all of the enduring liberal fantasy that he is on the side of the angels.
Ironically, whatever good Kennedy did for this country—indeed, everything he has done in his long career—will be forever blotted out by his unfathomable decision to retire now, at this precise and precarious moment in our history, with the very rule of law itself hanging in the balance. Kennedy’s willingness to do so, and to gift Trump that much power at such a crucial time and with such potentially disastrous and longlasting consquences, speaks volumes about where his sympathies truly lie.
At the very least, it’s clear that he does not share the opinion of many thinking people that Trump is a monster who needs to be contained if not removed from power outright. And if he feels that generously toward Trump, imagine how his even more right-leaning colleagues on the Court feel. Let’s remember that when we’re counting on them to do the right thing should the case of Mueller v. Trump come before them.
In fact, in the wake of Kennedy’s retirement, the disturbing extent of his chumminess with Trump was quickly exposed.
Trump apparently has been engaged in a charm offensive dating back to his inauguration, aimed at cajoling Justice Kennedy into retiring. The weapons in that campaign included flattering him, sparing him the vitriol Trump leveled at other Supreme Court justices for being insufficiently conservative (even when Kennedy was far more culpable on that count from the GOP point of view), and on the contrary, lavishing him with a suspicious amount of undue praise. Congressional surrogates also pressured Kennedy, and not so subtly. To fill Merrick Garland’s seat Trump chose one of Kennedy’s former clerks to join him on the bench. (Kennedy swore in his former underling-turned-peer.) In fact, on both occasions Trump’s entire pool of SCOTUS candidates skewed heavily toward Kennedy’s former clerks (Kavanaugh was one too), as did many of the judges he has appointed to lower federal courts.
But that is all politics as usual, if a bit more naked than normal.
This part isn’t:
The New York Times reported that Kennedy’s son Justin was a longtime senior banker in the real estate development division of Deutsche Bank, mysteriously the only bank that would loan Donald Trump money when he was broke. As the Times reported in its usual deadpan style:
During Mr. Kennedy’s tenure, Deutsche Bank became Mr. Trump’s most important lender, dispensing well over $1 billion in loans to him for the renovation and construction of skyscrapers in New York and Chicago at a time other mainstream banks were wary of doing business with him because of his troubled business history.
As has also been widely reported, Deutsche Bank is also an institution deeply entangled with Russian money laundering, to the tune of $630 million in federal fines levied against it by the Obama administration in 2017 (in addition to a $7.2 billion dollar fine for irregularities in its mortgage-backed securities, and $2.5 billion for manipulating interest rates in 2015).
Trump, tellingly, has waived some of those fines, which would be an epic scandal in any other administration. In this one, it’s just another Tuesday.
As part of this Deutsche Bank connection, Trump was also caught on camera chatting amiably with Kennedy about how much their (adult) kids “love” each other and have been good to each other in business.
Are you effing kidding me? This is the kind of thing that goes on in banana republics, of which the US is now apparently one. It’s Scalia duckhunting with Cheney all over again. (Insert “shot-in-the-face” joke here.)
It’s too much—or too soon—to speculate that Kennedy has a vested interest in protecting his son, who is possibly mixed up in Trump’s filthy financial dealings with DB and its Russian patrons. (Oh gee, did I accidentally speculate about that? Sorry.) But it’s very clear that the Trumps and the Kennedys are chummy at the very least, and that stinks of corruption like yesterday’s fish. Kennedy’s announcement that he was retiring cited the usual hackneyed desire to “spend more time with his family. “ (In this case, meaning the family that lent Trump a billion dollars.) Take note also of how Kennedy broke the news of his decision to his friend Donald, as reported by the New York Times:
Justice Kennedy visited the White House on Wednesday to tell Mr. Trump of his retirement and to deliver a letter setting out the details. Its warm opening words — “My dear Mr. President” — acknowledged a cordial relationship between the two men, as well as the success of the White House’s strategy.
In light of these revelations, it’s a fair bet that posterity will remember Anthony Kennedy for one thing and one thing only: obediently handing off his seat on the Supreme Court to the worst president in American history for the express purpose of ensuring a hardline right wing majority, and the implied purpose of maintaining that president’s illegitimate grip on power. Future generations may well curse the Kennedy name (the current one already has a head start) and remember him only as a fellow traveler in this atrocity, or at best, a sucker.
COURT AND SPARK
Kennedy’s resignation is also a stark reminder of just how long term will be the damage to the United States of America wrought by Donald Trump. We already understood that in terms of destruction of the environment, acceleration of global warming, obliteration of America’s standing abroad, further polarization in domestic economic inequality, and so forth and so on. But this really brought it home in one neat little package.
The sheer injustice of Trump’s ascent to the White House was galling even before we knew the extent of foreign interference, irrespective of the degree of his collaboration with it. The fact that as one of his first acts in office Trump would get to nominate a justice to fill the seat that rightly should have gone to a nominee of Barack Obama’s was a pill nearly as bitter, given the unconscionably anti-democratic, shamelessly dishonest obstructionism of Mitch McConnell in refusing even to consider Obama’s pick—an effort Mitch considers his proudest accomplishment in his long and disgusting political career.
And now Trump has been gifted a second seat to fill, and the terrifying possibility that with not just one but two octogenarians among the remaining justices, he might get a third or even a fourth before all is said and done. (RBG’s health is on everyone’s mind, but don’t forget that Breyer will turn 80 in August.) An America in which fully a third of the justices on the Supreme Court were put there by an illegitimate president—a sub-literate neo-fascist game show host who is very possibly the tool of a foreign power—is the stuff of bad dystopian science fiction, or at least it used to be.
The irony and the injustice of it all is almost too much to bear.
I know that the preceding four paragraphs are the sort of thing guaranteed to make right wingers dance around the house with joy, as there is nothing that delights them more than liberal anguish. But I would submit that this very glee on their part—the base, sadistic lack of empathy and the venal worldview, emblematic of everything that undergirds the entire Trump regime and what has become the contemporary Republican Party—is the exact thing that we are mourning, in accompaniment to the appalling policies those people endorse.
It’s no surprise that the John Birchers who currently have a chokehold on American governance are ecstatic right now. More disgraceful is the dodo-like endangered species of allegedly “moderate” conservatives—like the Boston Globe columnist Jeff Jacoby—who have taken to pooh-poohing progessive fears about the Court, acting as if Trump is just another POTUS, and demonstrating the degree to which even “reasonable” Republicans are in denial about the right wing coup d’etat that is taking place….or less charitably, how they are unbothered by it.
Had a Jeb Bush or a Marco Rubio won the Republican nomination in 2016 and gone on to triumph in the general election, we might still have found ourselves in this situation. But while the practical consequences would have be the same in terms of the Court, somehow it would not have been so bitter to watch. That, of course, to steal a phrase from Jim Comey, is because of “the nature of the person” who did win the GOP nomination, and how utterly horrific he is, and how utterly mind-boggling it is that we have entrusted him with putting even one justice on the Court, let alone two or more.
In making his pick, Trump reportedly consulted closely with Sean Hannity. (I’ll pause now so you can stop gagging). That’s right: the two men with the most power to decide the future of the federal judiciary are Donald Trump and Sean Hannity. If that isn’t the very definition of kakistocracy, I don’t know what is.
And the practical consquences are not the same, because a Bush or Rubio administration would not be engaged in the same wanton destruction of presidential and democratic norms and would not represent the same threat of full-blown neo-fascism. Hence the exponentially awful implications of a hard right leaning Supreme Court at precisely the time when we desperately need a strong judiciary to act as a brake on a would-be despot.
A Supreme Court that in its majority by and large reflects the worldview of Donald Trump and declines to rein him in is a terrifying thought, especially for anyone who was holding out hope that the American judicial system might be the means by which Trump is justifiably brought to heel.
Since Trump put Neil Gorsuch on the court in a spot that rightly belonged to the nominee of a Democratic president, the Court has handed down several crucial decisions setting back the progressive agenda, many of them—as noted above—by a razor-thin 5-4 vote along strict partisan lines. Among these was the ruling that a Colorado baker can discriminate against gay customers, even though it was by a vote of 7-2 on a narrow technicality, and did not actually greenlight discrimination, only overturned a lower court ruling because of “anti-religious animus” detected in the state law in question. But those subtleties were surely lost on the majority of the public. The net effect was the impression of endorsing discrimination.
Moreoever, in the same slate where the Court saw anti-religious animus by Colorado lawmakers, it somehow acrobatically managed not to see religious animus in Trump’s Muslim ban, despite the president’s repeated efforts to shout from the mountaintops that it was all about religious animus and nothing but (for the benefit of his followers who were worried that the semantic lengths to which the administration had gone in its revisions of the ban might have inched it away from the sectarian hatred they relished).
Such reasoning betrays a shamefully self-deluding (or is it cynical?) partisanship on the part of the Court’s conservatives justices, one that belies their cherished image as deep thinkers and honest brokers who are above the grimy business of legistlative and executive sausage-making. I think that image had long ago been irreparably tarnished (at least since Bush v. Gore), but absurdly biased decisions like this one really drive the ol’ nail in the coffin. It is deeply sad to watch the Supreme Court engaging in yogi-like contortions to defend otherwise indefensible policies that Trump and his advisors impulsively ginned up without much apparent forethought. This sort of judicial reverse engineering speaks to the politicization of the Court in the most unflattering way.
To wit: on the same day that it affirmed Trump’s Muslim ban, the Court—very belatedly—at last formally renounced Korematsu v. United States, the 1944 case that upheld the shameful internment of Japanese-Americans during World War II. Preemptively anticipating the squawks over this irony, Chief Justice Roberts condescendingly claimed that the two cases were really not alike at all, although he didn’t bother explain why not. (Please show your work, John.)
John Roberts is a smart guy. But history will remember him as a fool and a villain for this attempt to justify why this patently racist, unconstitutional executive order was not exactly what Donald Trump repeatedly insisted it was. And if the Court will tie itself in such knots to prop up the sloppily conceived and plainly discriminatory Muslim ban, will they have any trouble finding reasons to excuse other outrageous and even illegal behavior by this president*?
The injustice of Gorsuch usurping Garland’s rightful place is bad enough. But to watch this parade of reactionary decisions, each of them another milestone in the systematic dismantling of decades of hard-won liberal progress, and frequently by a single vote, is especially gutting.
Imagine if McConnell had been prevented from engaging in this despciable anti-democratic behavior. (Or, more fantastically, if he was an even marginally decent human being with a shred of integrity or principle, and hadn’t pursued it in the first place.) A 5-4 SCOTUS majority in favor of the progressive wing—Ginsburg, Breyer, Kagan, Sotomayor, and Garland—would presumably have acted as a brake on some of Trump’s excesses, not to mention declining to take a wrecking ball to the New Deal. Instead the Supreme Court has become a feckless rubber stamp for the most incompetent, corrupt, and destructive presidency in modern American history.
But somehow it’s fitting that Donald Trump, an illegitimate president installed with the help of a foreign power, should give us Neil Gorsuch, an illegitimate justice installed with the help of a proto-fascist political party. I hope Neil wears that reputation around his neck like an albatross down into posterity and in perpetuity. I think there’s a good chance he will. (Sorry Neil.)
And now he’ll have a buddy with a similar bird for a necklace, his fellow Georgetown Prep alumnus and former Kennedy clerk Mr. Kavanaugh. I hope they both lie awake at night in a cold sweat for the rest of their lives, knowing that more than half the country thinks they are impostors and pretenders and lowdown usurpers who have no business in their current jobs, were it not for a lowlife Russian puppet who has no business in his.
ALAS POOR MERRICK
What’s that you say? Bleeding heart liberal whining? That spot didn’t “rightly” belong to the nominee of a Democratic president?
Oh, but it did.
McConnell may not have broken any laws in refusing even to meet with President Obama’s nominee, but he most certainly violated their spirit and perverted the democratic process. And he did it while hiding behind utterly dishonest excuses about Obama having “only” eleven months left in office, and the alleged need to wait for the upcoming presidential election in order to learn “the will of the people” (despite zero constitutional basis for that argument—this from the party of slavish originalism—and indeed healthy precedent to the contrary).
You can bet your bottom dollar that if a Democratic Senate Majority Leader—say, one with a vagina—did this to a lame duck Republican president, the GOP and all of Fox Nation would be howling for blood and declaring the arrival of a fascisto-liberal coup d’etat.
In retropsect, it was an ominous preview of the SOP of the Trump administration, which is to say, wanton norm-breaking as the order of the day, with chaotic and often disastrous consequences.
Likewise, in hindsight, yes, Obama should have pushed back harder against McConnell’s outrageous obstructionism and bald-faced refusal to do his constitutional duty. The administration should have vocally made that argument, mobilized public opinion, and done everything in its power to outflank the despicable excuse for a public servant who occupied the position of majority leader. It still might have failed, but it would have been the old college try. Perhaps—like the misplaced confidence that caused the Obama administration and the US Intelligence Community to keep quiet about the investigation of Trump’s connection with the Russians—the presumption was that it wouldn’t matter. (Why make a problem when Hillary was gonna win anwyay?)
One extreme tactic that was floated would have been to have Merrick Garland simply take his seat—George Costanza style—without Senate confirmation, implicitly daring McConnell to do something about it. Would the other eight justices have refused to allow Merrick in the room? Doubtful. Would McConnell have called federal marshals frogmarch him out in handcuffs? Equally doubtful. On the contrary: Chinless Mitch might have been left sputtering to the press, “Hey, you can’t do that!”, which would have been the height of irony. In any case, it certainly would have forced the issue, instead of the usual Democratic water-pistol-to-a-gunfight approach.
But it’s easy for me to say that now. During the period that the Garland debacle was playing out, nobody on either side yet understood the brutal new world of neo-fascist politics that we were entering, or the stakes thereof, not even McConnell or Trump themselves. With Trump’s shocking and unexpected victory, McConnell got one of the luckiest breaks in the history of American politics…..and his luck has continued with Kennedy’s resignation, manipulated though it may have been.
THE MUELLER CARD
Now we are having a similar debate over the fight to block Trump’s second nominee. Michael Moore has suggested ringing the US Capitol with protestors to physically prevent the Senate from taking up Kavanaugh’s nomination, and what a beautiful piece of street theater-cum-Paris 1968 style democracy-in-action that would be. More conventionally, Cory Booker has made the very sensible argument that if Barack Obama should not be allowed a hearing on his nominee simply because he had, ahem, only a quarter of his second term remaining, we can damn sure argue that a president who is under criminal investigation and in danger of impeachment shouldn’t be allowed one either.
Obviously McConnell and the GOP are going to disagree and peg the hypocrisy meter in claiming none of that matters to the confirmation process. Mitch has already gotten on his high horse about Democratic obstructionism over Kavanaugh, rich as that is, and stated openly that he is going to try to rush his confirmation through before November for fear of losing the House or even the Senate as well in the midterms. But Booker’s logic is unassailable, and at least as persuasive—in fact, far more so—than McConnell’s was in late 2016.
One thing that would definitely change the equation would be if Robert Mueller drops a sufficiently big bombshell in the next couple months.
If Trump is implicated in deeply serious crimes—which I think we all expect he will be—we can flood the streets and justifiably press Booker’s point, demanding that a president under such allegations has no business naming anyone to the Supreme Court. (We could credibly claim that now, but a phonebook-thick charge sheet from Mueller sure would help.)
Of course Fox Nation will dismiss ANYTHING Mueller produces. But if there is sufficient outrage and public protest, we have a shot at derailing Kavanaugh’s nomination, or at least making an absolute mockery of the Republicans’ attempt to jam any Trump nominee down our throats. I doubt the Founding Fathers intended the Senate to consider the nominee of a president who stands accused of obstruction of justice, conspiring with a foreign power, campaign finance violations, money laundering, fraud, graft, corruption, bribery, and possibly treason, or one who is named as an unindicted co-conspirator when others in his inner circle are charged, let alone indicted himself. (That’s a long shot, of course, and would immediately head for a showdown in the Supreme Court—gee, what a coincidence.)
THE ELEPHANT IN THE ROOM
So let us leave for now the “inside baseball” view of the current Supreme Court battle and conclude by looking at the role of the Court in the broader context of contemporary American politics.
Almost a year ago today I wrote at length about what can only be described as a long term, systemic campaign of anti-democratic sabotage of the American political system by the Republican Party. (The Elephant in the Room: Trojan Trump and the Invisible Coup, July 2, 2017). Some of the fronts in this guerrilla war are voter suppression (including a vicious disinformation campaign promoting the racist myth of voter fraud); outrageously brazen gerrymandering; a lockdown of permanent control of state legislatures and governorships in defiance of the public will; the fomenting of terrible divides along racial, ehtnic, religious, and sexual lines; an Alamo-like defense of the antiquated and deeply unjust Electoral College; the protection of dark money in campaign finance; the marshaling of lobbyists to promote wedge issues, again frequently involving the spreading of lies; a stealth campaign to pack the federal courts with right wing judges working in ideological lock step (an effort that has accelerated exponentially under Trump, and with very little fanfare or public outcry); and perhaps most worrying, the establishment of a deep, deep-pocketed alernative media to serve as a propaganda machine and destroy rational debate and even the very concept of truth itself.
(Republicans) lost the popular vote in six of the last seven presidential elections. Electoral college models show Republicans could plausibly continue to win the White House without popular majorities. Because of partisan gerrymandering and other factors, Democrats could win by eight percentage points and still not gain control of the House, one study found. And the two-senators-per-state system (which awards people in Republican Wyoming 70 times more voting power than people in Democratic California) gives a big advantage to rural, Republican states. The Supreme Court’s conservative majority has protected Republican minority rule. It gave the wealthy freedom to spend unlimited dark money on elections, while crippling the finances of unions. It sustained gerrymandering and voter-suppression laws that reduce participation of minority voters. And, of course, it gave the presidency to George W. Bush.
Confronted with this evidence, right wingers will howl that everything the GOP has done is perfectly legal. That is debatable, and a sweeping generalization for what is actually a mixture of legal, extralegal, and blatantly illegal acts.
But even if it were all completely above board, does that make a difference?
Many many authoritarian regimes have come to power through legal means—as often as not. They then destroy from within the very democratic systems that allowed them to gain control.
The Republican Party seems to be engaged in precisely that process right now, and has been for several decades. The result is that it may well be able to maintain control of the United States government even in defiance of the will of the majority, and be able to institute policy after policy that the majority opposes, all with impunity. Unchallenged and total control of the Supreme Court is the crown jewel in that effort, with the possible exception of a permanent occupation of the White House.
This GOP-controlled SCOTUS has made it clear that it is just another arm of the Trump administration, bent on an authoritarian, white nationalist coup d’etat. The installation of Brett Kavanaugh will only further entrench it in that role. The right will of course scoff that this is a hysterical liberal overreaction…..which is more proof that it is happening.
Now more than ever, I fear that the Supreme Court will ape the Republican Congress in acting as nothing more than an amen corner for Trump, absolving him of any need to conform to the rule of law, providing him cover and camouflage and the illusion of checks and balances, and further abetting the brick by brick dismantling of the American republic as we once knew it.
Many observers have pondered how long it will take the United States to recover from the damage Trump is doing. But now we are forced to wonder if America will recover from it at all.
Next week, we look in more detail at Brett Kavanaugh and the judicial revolution we are facing….