THE TRUMP ROBERTS SUPREME COURT

Governments regardless of their ideology seek ultimate legitimacy for their policies and their actions via the judiciary. To use the United States Supreme Court Chief Justice Roberts metaphor, the Justices are “ umpires”. To explain even better how the Roberts Court claim to behave, they are akin to the legendary baseball umpire Bill Klem who bluntly maintained, “There are no balls There are no strikes.  It ‘ain’t nothing till I call it”.  Baseball umpires interpret in terms of strict sets of rules which they do not alter in the middle of the game.

 In spite of Roberts assertions to the contrary, the “Roberts Supreme Court” has no dependable rule book by which they adjudicate issues. The Court is on different occasions shown differing philosophies either “Originalist” or “Living” and “Restrained” or “Activist”  The only consistency appears that they act the way Trump maintained that they should and would. In Trump related cases the 6 to 3 Republican appointed Judges have found in favor of the President 93 percent of the time.

The Roberts Supreme Court has interpreted the Constitution contrary to the central underlying motivation of its introduction, namely to ensure that America should not be ruled by a king. There is little doubt that the litigation of United States v Trump,( 2024), was the most influential and important case in the history of the Republic. The Court ignored the limitations of Presidential Power set by the precedents of United States v Nixon, (1974), and Marbury v Madison, (1803). It simply cast aside the reason for The War of Independence and the aim of the Founders. It created an autocratic president. In so doing it was on its way to becoming The Trump Roberts Court.

 

THE FOUNDERS, THE COURTS, NIXON, TRUMP AND JANUARY 6 LITIGATION 

The Key Founders’ conclusion was that there would be three distinct branches of government so that there could be checks and balances of to limit the powers of one or other entity. The litigation in the United States v Trump, (2024), The Roberts Supreme Court, as the Judiciary Branch, had to once again decide the bounds of the power of the President who was head of the Executive Branch. Trump was appealing the Federal District Court of Columbia’s judgement “that he was not a King and was answerable for actions”. The indictment accused Trump of actions which amounted to attempting a coup on January 6 2021. The case against Trump was initiated was initiated in August 2023

The Robert’s Court slow walked hearing Trump’s appeal which urgently went directly to the Supreme Court on 11 December 2023. The latter ignored the precedent of the United States v Nixon, (1974)  which underscored the urgency of adjudicating an issue of whether the President was subject to the law in a criminal investigation. The Watergate case was speedily directly heard by the Burger Supreme Court with a ruling in 16 days. The Roberts Court refused to accept that there was a screaming urgency in view of the national interest of resolving whether or not the 46th President had attempted a coup after he had been declared the loser of the 2020 Presidential election. That case had been already been briefed and decided in the District Of Columbia Federal Court where an extensive ruling had already been made. In the Nixon case it was not argued first in the District Court it was briefed straight to the Supreme Court. 

Special Counsel Jack Smith for the United States cited the precedent of the unanimous decision of the Burger Court as to their agreement on the on urgency of the matter where a President’s power was involved that “being a matter of extreme public importance”. in fact the Burger Court had acted with “extra ordinary speed”. Also Smith argued that the Court’s determination that Nixon had no “absolute privilege was equivalent to absolute immunity claimed by Trump”.The 1974 Nixon litigation was not the only precedent there was also Marbury v Madison, (1803), where Chief Justice Marshall made it quite clear in writing the judgement that “Presidents were not beyond legal scrutiny”. The Marshall Court rejected that “…the President or any member of the Executive Branch could act with unchecked authority when the law was implicated”.

The Roberts Court compounded the delay and referred the litigation back the Federal Appeals Court where it was once again fully heard and decided with an extensively detailed judgement by February 2024. The Roberts Court still treated the litigation as an ordinary matter with no priority. They finally heard and decided the case only referring it back to the District Court in August 2023, 9 months after the urgent application. Their bizarre judgement, inter alia, stated that a President had “absolute immunity” for any action taken as part of his Presidential duties. Trump’s Council had apparently successfully argued that the President would not be criminally liable if he ordered the Navy Seals to assassinate a political opponent unless he had been impeached first. 

August was obviously too close to the November Presidential election for the Court to proceed and the litigation against Trump was dismissed.

Thus the Roberts Court ignored the precedents set by the Burger and Marshall Courts also the overall Constitutional directive that “No man, (sic), was above the law”. Not nearly enough attention has been given to the revolutionary ruling of the Court that has led to a second Trump Presidency which has accelerated America moving from a Democracy to an Autocracy. As will be noted the 6- 3 Republican nominated majority has not at all been fazed by this outcome.    

The Roberts Court has had to rule on numerous law suits related to Trump. Several of them have been decided, mostly temporarily, but certainly controversially, in what has been called “The Shadow Docket”. 

THE SHADOW DOCKET, THE ROBERTS COURT AND TRUMP

The Shadow Docket refers to the orders, decisions that the Court makes outside its regular normal job definition of being briefed by plaintiff’s and defendant’s Council, questioning them and then ultimately issuing an opinion after discussion and debate among the justices. In the past it was rarely used other than for the urgent issues relating to stays of execution and procedural announcements. The past ten years have seen a change in number and the usage of the so called, “Shadow Docket”, which have increased dramatically, in fact to quote an article in the New York Times it has become,”….. a central issue of the court’s work”.

There is a wide divergence of opinion as to the legitimacy of using “The Shadow Docket”. In fact legislation has been proposed by the Democrats entitled The Shadow Docket Sunlight Act in order to allow for transparency of the process. The three members nominated by Democratic Presidents have written and voiced dissent at these far reaching, virtually, off the judicial cuff, decisions by the majority on crucial constitutional issues. The Trump Administration has had 21 issues preliminary decided by the court on this basis. In fact central constitutional issues as obvious as birth right citizenship have been put into suspended reality by The Roberts Court opining that the subject has still really to be argued. 

The destruction to American institutions that has been allowed to continue by the Shadow Docket is legion. The includes a temporarily not stopping Trump from closing down the Federal Education Department, the allowing of firing numerous Federal employees for mere policy differences, in the process ignoring a precedent, sacking Democratic members of various statutory boards such as “The Federal Trade Commission” and the cancellation of hundreds of millions of grant money for medical research.  

The major success for the Trump Administration was persuading The Roberts Court via the “Shadow Docket” to allow him to continue with his main policy issue namely the round up of “illegal immigrants”. The latter after District Courts and Appeal Courts ruled them unconstitutional having extensively and heard arguments as to their legitimacy. 

Undoubtedly the most shameful ruling is Noem, (Secretary of Homeland Security), v Vasquez Perdomo, (“illegal immigrant”) where a restraining order was lifted on the United States Immigration and Customs Enforcement, from rounding up suspected “illegals” solely on the basis of apparent race or ethnicity, speaking Spanish or with an accent, presence at locations such as day labor pick up sites or agricultural workplaces. There is no reason for this blatant racism, reminiscent of South African Apartheid Laws, as the situation is wholly unconstitutional. The Fourth Amendment for example protects against “unreasonable searches and seizures, requiring search warrants for probable cause” for anyone.

MAJOR LEGISLATION OF THE TRUMP ROBERTS COURT

In the past 11 years that Trump has dwarfed over America The Roberts Court,  has continued to move the country even further than ever in favor of business, to strip away citizens rights, continued on the path they set when they declared the McCain - Feingold Campaign Act unconstitutional maintaining that money was the equivalent of free speech and limited the Environmental Protection Agency’s ability to regulate greenhouse gasses. However the two most consequential decisions other than Trump’s immunity were the negation of a 50 year old precedent, the right for a women to have an abortion and the negation of experts to interpret their area of expertise in the particular Government Agencies that they served.

The axing of Roe v Wade ,which enshrined the women’s right to choose, the landmark case under the “Privacy” provision of the Constitution, came out of the blue in litigation that hadn’t even called for it. The three Trump appointees who had contended at their confirmation hearings that that was not their intent. The decision has led to draconian legislation by the MAGA states even baring doctors to treat women who may have had a termination. This has led to deaths of women and chaos in doctor decision making processes as a miscarriage clinical picture is indistinguishable from an induced abortion. For whatever reason it is not the hot button issue at this time as litigation wends it way through the courts. Women have taken advantage of obtaining abortifactient tablets through the mail. This negation of “privacy” has resulted in the most “conservative” members of the Court stating the right to use contraception could be next.

The overturning of the Chevron ruling of 1984, yet another precedent biting the dust, has had and will have a long lasting impact. The Roberts Court argued that they rather than the experts, in Health, Education, Environment, Housing, or any other area for that matter are better placed to interpret the Statutes they work under than them. This has created a flood of litigation as individuals, organizations and corporations challenge any bureaucratic edict they see fit. It makes governing impossible which just so happens to be a Trump objective. Scores of litigation are now clogging the Courts to be decided by Judges who just cannot be experts in every field.

AT THE END OF THE DAY THE TRUMP ROBERTS SUPREME COURT…….

• .....Has made the President the total sum of the Executive while exponentially increasing his power by giving him immunity before the law.
• ......Has increased its own power by ruling through “The Shadow Docket” and axing rights of citizens which in several instances were governed by long standing precedents. 
• The most consequential litigation in the next Supreme Court session will be on whether the last standing provision of the 1965 Voting Rights Act, the land mark Civil Rights legislation, will be gutted. What is in contention is whether a State has the right to gerrymander on the basis of race.