Originally published at: Inside The Supreme Court’s Massive Power Grab This Term - TPM – Talking Points Memo
While the Supreme Court imbued the presidency with untold power, hobbled federal agency power and hollowed out the administrative state this term, it was actually amassing power to itself. In Trump v. United States, the power grab lurks in what Chief Justice John Roberts’ majority left unsaid. That landmark case granted former presidents sweeping immunity…
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Once the Courts were a safegaurd against the abuse of power, now, it seems, we need something to protect us from the courts abuse of power.
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So today we celebrate freeing the colonies from the tyranny of king who was above the law and welcome our new government of a president who is above the law as declared by the immaculate six who authored “the sh*t heard round the world.”
Good job as always, Kate.
Happy 4th to all. 
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What will the judges do? Roberts says everybody has been reading the Constitution wrong for 248 years, but he’s finally cracked the secret code.
Does Roberts really expect us to accept his story that we were all mistaken this whole time about which idea we were actually pledging our allegiance and swearing oaths to?
There are only about 890 federal judges. If they roll over for Roberts, the coup will be real. But if they stand together, and with one voice declare they will not abide by this nonsense, then the Roberts court will be broken.
So what will the judges do?
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Some reflections for the day.
Scalia authored the test case in Heller when he not only told us we had been operating under a misinterpretation of the 2nd Amendment for more than 200 years, but also that the clear meaning of the text was nothing more than a rhetorical flourish.
His Court then tested the bounds of separation of powers in Shelby County when he declared that §2 of the VRA was unconstitutional because he didn’t like the way Congress had reauthorized it.
Next up, Loper Bright when they proclaimed the Court has control over what the Executive Branch can do in discharge of its constitutional powers.
We now have a government of the Court, by the Court, for the oligarchs.
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Dont count on the 5th circuit court
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“Original intent, my ass! You didn’t really believe that, did you sucker?”
– J. Roberts
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You won’t have to wait long to find out. @sniffit posted this yesterday:
Comes complete with the judge’s application of the Roberts excuse, “’And to the extent that Congress and the Executive Branch may disagree with how the courts have performed [their] job in a particular case, they are of course always free to act by revising the statute.’”
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Here’s how Roberts is heating the water to disrupt the frog: ambiguity in Roberts’ standard leaves the door open for fence-sitters to excuse themselves from resisting immediately, as they search for a way to salvage the rule of law from Roberts’ abuse of power over our legal dictionary.
Countless judges and lawyers will hesitate rather than rebel, today and tomorrow, as they explore that space of possibilities, not recognizing it’s all a dead-end. This article quotes law professors from New York Law School and Georgetown Law who are both still spinning their wheels in this diversionary rabbit hole. Here’s one:
“I’m hoping to see a definition of official acts that at least makes it clear that there’s a limit to the degree to which you can abuse your power with impunity,” Rebecca Roiphe, a professor at New York Law School, told TPM.
Roiphe implies that there might be some way to fill in the cloudy gaps that would be compatible with the rule of law, and she’s hoping somebody will do that promptly. But that is absurd: the total immunity part is a fatal poison to the Constitution regardless of how one might flesh-out the murkier meaning of “presumptive immunity.” The bottom line is still that a really bloody tyrant could grab the whole state quite easily. And Trump could be that guy – he is a vicious bully who craves punitive violence.
If Roiphe and Super were looking at where this will end, and accepted the reality that Roberts and Heritage and the Federalists have just now fitted the government with a yoke that is strong enough to drag the country the rest of the way, they would be up in arms right now, not hoping in vain that a Democratic win in November could prevent that outcome. It can’t.
It is John Roberts who must be actively resisted today in order to save democracy, not Trump. And that resistance must come from the political class and the legal community. And it has to come before anything gets decided based on Roberts’ fantastical replacement of the U.S. Constitution.
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Doing it promptly requires a case in controversy to be brought, decided, and then granted cert. The only cases that meet those criteria will be, or already have been*, brought by red state attorneys general and other far right wing organizations that will then be forum shopped to the Kacsmaryks on the federal bench to reinforce Roberts’ Rules of Disorder.
Any cases ultimately brought by and decided in favor of the other side will be granted cert so the Court can explain why they are wrong.
* See “Judge cites new Supreme Court ruling” above
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John Roberts is trying* to give Trump dictator powers so he can steal the presidency for the Heritage Foundation. The GOP and Russia are busy doing the stealing for him. What Trump has been doing, publicly and for years, is preparing a bloody after-coup.
* I say "trying" because judges across the nation can literally end it now by all signing a formal open letter announcing their intention to reject these opinions -- and to reject them wholesale rather than play games trying to parse workable from unworkable.
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Yup.
Roiphe and Super are basically on the phone with the Supremes to ask them for an explanation, and John Roberts has told them to “hold on a sec” for the next several months, while his pals are burgling their houses, and he and his co-conspirators celebrate in luxury.
It will be too late to say “no” to Roberts by the time he hands over the bag of wooden nickels. He doesn’t even need to have wooden nickels if the judges stay immobile long enough.
So, I’m very curious to trace, in real time, how thought leaders around SCOTUS evolve an awareness of their predicament. That sound the frog just heard was the lid being scraped into place. As Dahlia Lithwick & Mark Joseph Stern put it yesterday, “the time for action is now or never.”
ETA: Josh’s latest is like Ron Howard’s narrator commenting on Roberts’ attempt to coronate Trump. It makes me wish he were on the Court.
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So they think, but their thinking has been clouded by arrogance, driven by a “god given” superiority complex. They are but one of three co-equal branches of our government.
This is the single and foremost issue that needs to be focused on.
We need to immediately stop talking about President Biden, he IS the leader of our party. And, if anything were to happen to Joe, we already have a very good replacement ready to go. FULL STOP!
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That’s the theory I learned in high school civics class (60 year reunion last month) but a lot has changed in the last six decades, a point that Kate makes painfully clear in this article. Even if we retake the House and retain both the WH and Senate, the Court will continue its massive power grab unabated. If the country is dumb enough to return TCF to the WH then we are well and truly effed.
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More than theory, if fact, The Courts can be regulated by Congress. It hasn’t occurred in decades but it can and must. Hence, the ‘single and foremost issue’. Was there a good turnout at the reunion?
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I’m watching Jaws as I prepare to phone more Senators today, and there’s a pretty good encapsulation of Josh’s point about executive overreach:
He says clearly and explicitly that one of the responsibilities of power is that they may face situations in which they must break the law or violate the constitution in the interests of some higher and more pressing goal and then face the personal consequences of having done so.
In Jaws, the sheriff finally decides he will “go rogue” and autopsy the shark that hunters caught, to verify if the danger is past. His wife asks, “can you do that?” He replies, “I can do anything, I’m the Chief of Police.”
The sheriff isn’t contemplating a cover-up for going around the mayor. Rather, he expects to be vindicated by the public and spared the consequences of his rule-breaking by doing what is necessary for public safety. He expects that in part because he’s already been rebuked by the public for staying within the law but getting bad results.
Roberts and friends expect to be vindicated, somehow, by somebody, when this is all over. I shudder to think where he expects people like me will be.
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True, and there should be plenty of motivation to exercise that authority if the Ds can bring themselves to eliminate, or at least carve out an exception to, the Senate filibuster rule.
I don’t know. I missed all the prior reunions and didn’t see any reason to break my perfect nonattendance record. I didn’t recognize most of the names on the email blast about the reunion, which reinforced my decision to play hooky one last time.
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I have a friend who keeps telling me I’m going to be sent to a Trump reeducation camp. I expect there will be a large contingent of TPMers.
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