Mostly Monday Reads: Is it a Coup when the Supreme Court does It?
Good Day, Sky Dancers! It certainly isn't morning in America by any usual standards. The Roberts Court continues its attack on precedent. The first line of Justice Sotomayer's dissent is chilling. Today, I am crying in my office with her. "Wi…
"The compromised Supreme Court has created a monster." John Buss, @repeat1968
Good Day, Sky Dancers!
It certainly isn't morning in America by any usual standards. The Roberts Court continues its attack on precedent. The first line of Justice Sotomayer's dissent is chilling. Today, I am crying in my office with her.
"With fear for our democracy, I dissent." - Justice Sotomayor.
This is her warning.
"When [the president] uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy's Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune."
Notably, Judge Sotomayor does not use the adverb "respectfully" before she closes her dissent. She's appropriately disgusted with the majority opinion.
"The nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority; he is also entitled to at least presumptive immunity from prosecution for all his official acts; there is no immunity for unofficial acts."
"Bottom line: This case is not going to trial any time soon. There is the possibility of additional appeals as Judge Chutkan makes some of the decisions about official versus private conduct, etc. It's a mess."
As we finally reach the end of another harrowing US Supreme Court term, one overarching theme has emerged: this Court doesn't believe in the separation of powers.
Three decisions from last week highlight the remarkable success of the right-wing justices in accruing control, drastically shifting power away from the executive and legislative branches.
Think of the separation of powers as having two layers. One is the power of each branch: the legislative branch makes the laws, the executive branch enforces the law, and the judicial branch interprets the law. The other layer is the checks and balances part. Congress passes laws, but that power is checked by the president's ability to veto them and the judiciary's ability to invalidate unconstitutional ones. The president's ability to appoint a cabinet requires the approval of Congress, and the executive branch's authority to enact regulations and executive actions can be invalidated by the courts.
And then there's the courts. Where the courts can interpret and invalidate both laws and regulations, there is no similar power to undo a court ruling absent significant friction. In theory, the check from the executive is that the president has the power to nominate judges, and the check from Congress is that it can approve or reject those appointees. You'll note that neither of those checks allows the legislative or executive branch to easily unwind a specific court decision, but instead only to commit to a long-range course of action of nomination and approval to slowly change the composition of the judiciary.
Another check is that Congress could pass laws that alter the power and composition of the federal courts, such as expanding the courts by creating new courts and increasing the number of judges. Again, however, that's a long-range plan that requires massive effort and the agreement of the executive branch.
Meanwhile, six unelected right-wing justices, all of whom have a lifetime position, have pulled off what is likely the biggest power grab in American history, knowing full well there's no way that the other two branches can get it together enough to stop them.
The Leonard Leo Six will certainly get their gratuities this summer. They've essentially crippled Federal Agencies. I say this as I sit through my 3rd consecutive year of record-setting temperatures while watching two record-setting hurricanes take aim at the Gulf. NPR's Nina Totenberg has just posted this analysis on the Absolute immunity debacle. "Supreme Court says Trump has absolute immunity for core acts only." Was Trump ever doing official acts? That's my first question.
The U.S. Supreme Court, in a 6-3 decision along ideological lines, ruled that a former president has absolute immunity for his core constitutional powers — and is entitled to a presumption of immunity for his official acts, but lacks immunity for unofficial acts. But at the same time, the court sent the case back to the trial judge to determine which, if any of Trump's actions, were part of his official duties and thus were protected from prosecution.
That part of the court's decision likely ensures that the case against Trump won't be tried before the election, and then only if he is not reelected. If he is reelected, Trump could order the Justice Department to drop the charges against him, or he might try to pardon himself in the two pending federal cases.
Chief Justice John Roberts wrote the court's decision, joined by his fellow conservatives. Dissenting were the three liberals, Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson.
Monday's decision to send the case back to trial Judge Tanya Chutkan all but guarantees that there will be no Trump trial on the election interference charges for months. Even before the immunity case, Judge Chutkan indicated that trial preparations would likely take three months. Now, she will also have to decide which of the charges in the Trump indictment should remain and which involve official acts that under the Supreme Court ruling are protected from prosecution.
Even after Judge Chutkan separates the constitutional wheat from the chaff, Trump could seek further delays, as immunity questions are among the very few that may be appealed prior to trial.
Monday's Supreme Court decision came months after the court agreed to hear the case Feb. 28 and scheduled arguments for two months later. Court critics have noted that the justices could have considered the case as early as in December, when Justice Department special counsel Jack Smith unsuccessfully sought review of the same questions later put forward by Trump.
Mere hours after the Supreme Court sharply curbed the power of federal agencies, conservatives and corporate lobbyists began plotting how to harness the favorable ruling in a redoubled quest to whittle down climate, finance, health, labor and technology regulations in Washington.
The early strategizing underscored the magnitude of the justices' landmark decision, which rattled the nation's capital and now appears poised to touch off years of lawsuits that could redefine the U.S. government's role in modern American life.
The legal bombshell arrived Friday, when the six conservatives on the Supreme Court invalidated a decades-old legal precedent that federal judges should defer to regulatory agencies in cases where the law is ambiguous or Congress fails to specify its intentions. Writing for the majority, Chief Justice John G. Roberts Jr. described the framework as "unworkable," at one point arguing in his opinion that it "prevents judges from judging."
Many conservatives and businesses long had chafed over the legal doctrine, known as Chevron deference after a case involving the oil giant in the 1980s. They had encouraged the Supreme Court over the past year to dismantle the precedent in a flood of legal filings, then rejoiced when the nation's highest judicial panel sided with them this week — paving the way for industry to commence a renewed assault against the power and reach of the executive branch.
"This means that agencies are going to have a hard time defending their legal positions," said Daryl Joseffer, the executive vice president and chief counsel at the U.S. Chamber of Commerce Litigation Center, which filed an amicus brief in the case. "That means it will be easier to challenge some regulations than it used to be. That obviously has a real impact on whether it's worth bringing some cases."
We are truly fucked. Independence Day has been overturned. We should spend the 4th of July wondering what we did to give away the promise of our country's founding and its continual forward march to giving all of us liberty and Justice. Corporations now have more power. SCOTUS has more power. Donald will be hypercharged with power if he is re-elected. This power grab needs to stop. There is no way that Alito and Thomas should decide anything concerning January 6th, given that their wives are deeply caught up in the treason. I look forward to the response from both the President and Senator Sheldon Whitehouse.
Lisa Needham sums up the court's disastrous year with this headline in Public Notice. 
The Leonard Leo Six will certainly get their gratuities this summer. They've essentially crippled Federal Agencies. I say this as I sit through my 3rd consecutive year of record-setting temperatures while watching two record-setting hurricanes take aim at the Gulf. NPR's Nina Totenberg has just posted this analysis on the Absolute immunity debacle. 
Tony Romm of the Washington Post writes that the Corporate Overlords are already busy forming laws suits with the Chevron decision. 
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