Consider Us Warned

Morning Dispatch

Quid pro quo

It is one of the great ironies of the way the American government is structured that the Senate is one of the least democratic institutions in the country.

This has become increasingly the case as the filibuster, ostensibly implemented in order to encourage bipartisanship, has instead become a way for a minority of senators who represent a small percentage of the country’s population to thwart policies that appeal to broad swaths of the country. This has its roots in the filibuster’s racist origin—it has been used since its inception in 1806 to block civil rights legislation and anti-lynching laws, among other things, and the anti-democratic bent of the Senate is becoming more pronounced as blue states become more populous and red states become less so. For context, the few hundred thousand people in Wyoming have the same representation of the almost 40 million people in California. Overall, the 53 Republican senators represent 155.1 million Americans and the 47 Democratic senators represent 179.1 million.

It turns out that the Supreme Court of the United States of America, as it is currently constituted, has become the most anti-Constitutional institution this country has ever seen. The corrupt, illegitimate super majority under the auspices of Chief Justice John Roberts continues its onslaught against the separation of powers in an effort to create an imperial presidency. The goal of this effort is to make Donald Trump a powerful unitary executive who is beyond ability of either Congress or the judiciary to rein him in.

Much like the Republicans in Congress, the corrupt, illegitimate super majority of the Supreme Court is ceding its power to Donald and to the executive branch he leads. It’s rather gobsmacking and I wonder what the underlying motives are. We know for a fact that the Supreme Court would not act to grant a Democratic president monarchical powers. But then, a Democratic president would never demand them.

I think the likeliest explanation is that Roberts and his corrupt cohorts—particularly Samuel Alito and Clarence Thomas, finally saw an opportunity, with a greedy, grasping illiterate in the Oval Office and a weak, feckless Republican party willing to go along with it.

I’m not a lawyer. I’m not a legal scholar of any kind, and I’m certainly not a Constitutional scholar. I come at this issue as a layperson. So as we watch the corrupt, illegitimate super majority of the Supreme Court bending over backwards to give more power to Donald in particular and the executive branch in general, while they gleefully put this one man above the law, despite his vast criminality, I wonder, are they not aware of the context in which they render their decisions?

That is, are they not aware that the Trump regime is systematically dismantling the American government as we know it by freezing funds duly appropriated by Congress and gutting the civil service and eradicating wholesale agencies it has no right to tamper with? Do they not see the Trump regime is going after individual rights we all used to take for granted, like the right to due process and the right to protest peacefully? Are they sanguine about the assault on the sovereignty of American cities and states? Do they care nothing about the unconstitutional deployment of military troops in direct violation of the Posse Comitatus Act, which explicitly states that the federal military cannot be used to carry out domestic law enforcement operations?

We see evidence almost every day that they do not care about such things and are, in fact, eager to enable them in service to granting Donald ever more power.

Last Friday, the Court’s super-majority gave the green light to the executive branch’s decision not to spend money Congress had already appropriated, which is on its face blatantly illegal and unconstitutional. According to this most recent shadow docket ruling, however, the majority told us that it’s fine, without much of an explanation whatsoever, despite the fact that such executive actions fly in the face of the Impoundment Control Act, which was passed for the sole purpose of limiting the ability of the president to infringe upon Congress’ power of the purse.

Of course, the minority disagreed, Justice Elena Kagan wrote:

In a few weeks’ time, when we’ve returned to our regular docket, we’ll decide cases of far less import with far more process and reflection.

She continued to explain—as if it needs to be explained—that part of the point of the separation of powers is that no one branch of government always gets its way. They work together or against each other in tension, in harmony, depending on what is at stake. What the corrupt, illegitimate super majority did with this shadow docket ruling took a hatchet to the separation of powers.

Kagan goes on to say that a president’s displeasure with a Congressional act

is just the price of living under a Constitution that gives Congress the power to make spending decisions through the enactment of appropriations laws. It is merely a frustration any president must bear.

But not anymore, says the corrupt, illegitimate super majority of the Supreme Court—as long as the president is Donald Trump.

Not anymore.

The Court seems to want a Congress to be weakened to the point of uselessness. They seem to want a docile judiciary. They keep to themselves, however, the considerable power to re-interpret our founding document to such a degree that is becoming unrecognizable. They have no respect for history or precedent or, it would seem, the Constitution.

I expect nothing but the worst from Clarence Thomas. He has made it clear that he fully intends to go after the right to contraceptives and marriage equality, among other things we have long taken for granted. Even by his low standards, however, remarks he gave recently are chilling:

At some point we need to think about what we’re doing with stare decisis [the legal principle is which a court abides by precedent]. And it’s not some sort of talismanic deal where you can just say ‘stare decisis’ and not think, turn off the brain, right?

We never go to the front to see who’s driving the train, where is it going. And you could go up there in the engine room, find it’s an orangutan driving the train, but you want to follow that just because it’s a train.

I don’t think that I have the gospel, that any of these cases that have been decided are the gospel, and I do give perspective to the precedent. But it should — the precedent should be respectful of our legal tradition, and our country, and our laws, and be based on something, not just something somebody dreamt up and others went along with.

That’s how far down this particular slippery slope we are.