Judicial Neverland
America’s poli-exploitive judicial system.
America’s political future is being held hostage by the shadows of judicial reckoning. The US Supreme Court has decided to invoke “apolitical cover,” neglecting the trajectory of evidence in the first of three pending decisions on former President Trump’s elevation to the Presidency. (1)
Friday, December 22
Today, in a terse, dissent-free, declarative sentence, the Supreme Court of the United States rejected Special Counsel Jack Smith’s request to render an opinion on Trump’s legal team’s position that the former President was “absolutely immune” from prosecution for inciting an insurrection on January 6, 2021. This opinion will pause Justice Tanya Chutkan’s January 6 criminal trial case, set for March 4, 2024 while both sides convince a panel of three Appellate Justices that Trump can/cannot claim “absolute immunity” under a broad interpretation of the Constitution and Executive Authority. With its rejection to entertain Smith’s request, the Supreme Court inferred that America needs to know one, does the Constitution apply and two, is the prosecution a political cause masquerading as a legal one? Neither an opinion nor a decision, the Supreme Court’s public announcement was more a procedural determination to return Smith’s request to the realm of the judicial habitual, not what Smith had claimed in his request. (2)
The “absolute immunity” claim is one of three potential SCOTUS decisions on how to proceed with deliberating on the former President’s Constitutional rights as a former President and his party’s leading candidate for nomination as the 2024 Republican Presidential candidate. The other pending “decisions,” — for obstructing the certification of the 2020 election and for remaining on the primary ballot in Colorado (3) — have yet to percolate up on appeal, but considering the time table of the 2024 Election Campaign, will challenge the judicial system to act with speed and resolve, a fractious process, daily tainted by Trump as a “political witch hunt.”
Not only is the defense’s legal strategy one of delay, but also one of obscuring the Constitutional issues of protecting democracy from insurrection and for providing its citizens “free and fair elections.”
Broadly speaking, the most definitive statements to be uttered by the US Supreme Court recently are not about the decisions the Court has rendered but about the public’s reaction to the decisions it has.
This is not a classy bunch: easier to shame your detractors than clean your house. (4)
The public upshot of all this are plummeting approval job ratings, a tide of disdain of the Court as an institution, misguided leaks and poor optics (5). Consider Justice Clarence Thomas in shorts sporting a stogey in the company of the white, rich, male and powerful. Adding to public affront are the Court’s reactions which collectively sound like the frustration of a substitute high school teacher to a class of recalcitrant teenagers: ‘heh, we are just doing our job, so stop complaining.’ Just whose job, these justices are doing, remains for the public, conveniently out of reach.
Is this where our exercise of governance called ‘democracy’ ends up: the “least democratic” of our nation’s branches, putting in place the restrained exoneration of an avowed insurrectionist? (6)
The other two “decisions” headed SCOTUS’s way are the obstruction claim and the state ballot case(s) such as what the Colorado Supreme Court just decided and Maine/Michigan/California/Oregon will soon weigh in on: does section 3 of the Fourteenth Amendment disqualify the former President from appearing on the ballot for his alleged role in participating in an insurrection, leading to the attack on the US Congress, January 6?
Some Supreme Court observers speculate that the decision by the Supreme Court to deny Smith’s request is warranted by the unique nature of the “immunity” claim. However, one can counter argue that the singularity of this judicial decision resides not so much with Constitutional interpretation but with the defendant. Translation: America hasn’t seen the likes of Donald Trump, that’s why these decisions will stand out, historically.
Consider the obstruction claim. Rather than argue that the defendant obstructed a Constitutional process, the defense is claiming that the defendant was simply protecting the “2020 election certification.” By arguing his position, Jack Smith opens up evidentiary paths to corroborate that obstruction was exactly Trump’s intent. One of these paths surfaced with a dump by the Detroit Free Press of a phone conversation with Trump, Republican National Committee Chair Ronna McDaniel, and Michigan Republican Election officials in Wayne County. If the media so chose — which it didn’t — followers of “Judicial Neverland” would have recalled that Smith, not Trump, has been arguing consistently this point: that as difficult as it might appear at first blush to convince a jury of “obstruction,” the evidence is resoundingly clear. (7)
Consider the impending decision to uphold the 4–3 decision of the Colorado Supreme Court blocking former President Donald Trump from having his name on the Republican primary ballot. The 200 page Colorado decision is a poster child for democracy and for those who subvert democracy. This particular decision will be appealed to the Supreme Court, sometime in the future — when we don’t know — until which time Trump’s name will appear on the ballot, which means the November, 2024 election, unless a new ‘Trump-less’ ballot appears before — when we don’t know.
Consider that the Colorado Supreme Court case to disqualify Donald J. Trump was brought by Colorado Republican and unaligned voters, who sued the Colorado Secretary of State, a Democrat. Consider also that the Colorado Supreme Court case to disqualify Donald J. Trump was deliberated by Court appointees selected from a pool chosen by a bi-partisan commission. (8)
Yet one hears from the decision’s critics, only how the Democratic Governor and the political appointment process has tipped the scales of justice against Trump.
Disappointment does not begin to describe the gasping and grasping:
“There are far sounder tools for addressing Trump’s attempts to overturn the 2020 election. One is beating him at the polls. Another is impeachment, which allows for disqualification upon conviction. But, after the House impeached Trump (for the second time) for his role in January 6th, Mitch McConnell, who was then the Senate Majority Leader, rallied Republicans to acquit the outgoing President in his Senate trial. McConnell now has much to answer for. Perhaps he thought that Trump would just go away. Instead, a constitutional crisis has arrived.” (9)
The Supreme Court, under the leadership of the Chief Justice has failed miserably to uphold a regard for public regard, dumbed down as ‘succumbing to popularity.’ The supposition that because one of the Justices, Clarence Thomas, whose wife Ginni, aided political operatives for groups involved in the US Capitol attack, should recuse himself, comes off like a cruel joke. Justice Thomas is the “lost” of the lost boys. Chief Justice Roberts, rather than isolate Thomas, supports Thomas’s prerogative to withhold information and avoid accountability. Thomas angrily doesn’t see the reason why he should recuse himself and… ‘children, that is that.’
The public apprehension of all this is hardly supported by the judicial branch and the legal pundit vultures circling Federal Plaza (10) . The media plays Team Trump’s recycled whines, daily like a record, which keeps skipping, and the Supreme Court fills the void with silence. Hardly a prescription for a well-informed and engaged public. (11)
We can’t even get TV cameras into the court room.
December 29–31
Notes
1- The three potential Supreme Court “decisions,” filed with regard to pending cases are the “absolute immunity’ claim, obstruction to block the transfer of power, qualification to appear on the ballot per section 3 of the 14th Amendment. A fourth request for the Supreme Court, filed by Trump’s legal team, arguing that a gag order imposed on the defendant is a violation of Trump’s first amendment rights, is excluded from this analysis: it does not pertain to existing litigation, rather, to a judge’s ruling.
2- “The United States recognizes that this is an extraordinary request, Smith wrote in the filing. “This is an extraordinary case.” -Shirin Ali, “The Supreme Court is Already Taking Jack Smith’s ‘Extraordinary Request’ Seriously, “ Slate, December 11.
3- Comment: Since the writing of this article, Secretaries of State in Maine, Michigan, California and Minnesota have determined if Trump should remain on the ballot in their primary elections. As primary election dates approach in over twenty states, ballots need to be printed and distributed. Pending a decision by the US Supreme Court, which seems unlikely by press time — Michigan’s ballot printing deadline is January 9— Trump’s name will remain on the ballot.
4- Comment: Under-reported and lost on the public, in my opinion, are the justices’ remonstrations of their deliberations, particularly, from Justices Sotomayor and Ketanji Brown Jackson.
5- Comment: During his remarks at the Memorial Service for Justice Sandra Day O’Connor, December 21, Chief Justice Roberts recalled a comment Justice O’Connor made upon learning that Roberts was taking the seat she, the first woman Supreme Court Justice, was vacating: “I only regret that you are not wearing a skirt.” It was a poignant moment, however, lost on Roberts, who replied to Justice O’Connor, “Everything is negotiable.” The audience ‘cringe-gasps’ were palpable.
6-Robert Reich, Newsletter, Substack, December 22
7- Comment: Watch this case, as reported by Politico, December 13: “Supreme Court will review scope of obstruction law that Trump is charged with breaking,” Kyle Cheney and Josh Gerstein.
8- Charlie Savage, “Principles at Stake in Push to Disqualify Trump: Will of Voters and Rule of Law,” New York Times, December 22
9- Amy Davidson Sorkin, “Should the Fourteenth Amendment Be Used to Disqualify Trump?,” The New Yorker, Dec. 21
10- Lucian K. Truscott IV, “Well knock me over with a feather: The Times Trump whisperer troika pretends they have a scoop!,” substack, December 26
11- After decades of reporting on the Supreme Court, “first lady of leaks,” Nina Totenberg summarized this frustration in 2022:
“Even today, the Supreme court is enough of a monastery that it pays to know the justices even a little bit to pierce the veil of secrecy that pervades the place. As I am writing this, the Court, because of the pandemic, is closed to the general public, and the justices have abandoned their long standing practice of summarizing their opinions from the bench so that the lay public — who were always in attendance pre-pandemic — and the press can hear a quick summary of the law that is being established. Also gone is the practice of justices summarizing their dissenting views when they feel strongly that the Court has taken the wrong path. One can only hope those practices — linking the Court to the outside world — will resume.”
-Nina Totenberg, “Dinners With Ruth: A Memoir on the Power of Friendships,” (September, 2022)
ReplyForward
Add reaction
