Today's Supreme Court poses a profound threat as it once again delays justice
Apparently the Court finds unthinkable holding this trial before a possible future President Trump can order it halted.
Last December, the Colorado Supreme Court ruled that Donald Trump was ineligible to be on the ballot because the 14th Amendment prohibits anyone from holding federal office who previously swore an oath to this country then engaged in an insurrection or rebellion against the same. The Court found that Mr. Trump had, in fact, engaged in insurrection.
Two and a half months later, the U.S. Supreme Court ruled that the law did not apply to Mr. Trump. They did not take up the question of fact- Colorado’s finding that Mr. Trump engaged in insurrection. Never mind what the Constitution actually says, the justices all agreed that in practice, allowing Colorado to take Trump off of the ballot would “create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.” In other words, forget textualism, they simply thought a world where states could kick candidates off the ballot was unthinkable. And when a result might be unthinkable, they can move very quickly.
But not always. Eleven months before the Colorado Supreme Court’s decision, a three-judge panel struck down South Carolina’s 1st Congressional District map as racially discriminatory and ordered the state to draw new maps. The state appealed the decision to the US Supreme Court. As a consequence, the appeals court extended the deadline for drawing new maps to 30 days after the Supreme Court issues a decision.
It’s unthinkable that an unconstitutional and racially gerrymandered district would get used in yet another election, but that’s what’s happening because of the Supreme Court.
Photo Credit: Fred Schilling, Collection of the Supreme Court of the United States
This time, instead of rushing to make a decision, the Court sat on its hands. They took nine months to schedule the oral argument this case. Then the went silent. Late last month, 170 days after oral argument, the trial court gave up and allowed the defendants to use the current unconstitutional, and racially gerrymandered congressional map for the 2024 election.
We still have, despite the Roberts Court’s efforts to gut it, a Voting Rights Act. A panel of federal judges found that Black voters were disenfranchised. A remedy was ordered. The Supreme Court stopped the remedy by agreeing to take the case, then refusing to decide it. This is not a court rendering a judgment on the law. This is a court using its power to put its partisan and racist hand on the scales of an upcoming election.
This week, the Court did it again. With amazing sleight of hand, they changed the subject from Donald Trump’s attempt to overturn the last election to a philosophic discussion of future presidential power. Important as those questions are, they are not timely. What is timely, timely in the sense that the clock is ticking, is the trial in District Court where Trump faces multiple counts for trying to overturn the election he lost to Joe Biden.
Justice Roberts and his robed cronies are not going to let that happen. They’ve known for months that Trump’s lawyers filed a motion to dismiss on grounds of presidential immunity. When District Judge Tanya Chutkan denied that motion, Special Counsel Jack Smith asked the Supreme Court to hear the appeal, bypassing the appeals court to save time. The Supreme Court denied Smith’s request. When it did go to appeal, that court ruled unanimously that Trump is not entitled to broad immunity. That should have been the end of it. It wasn’t. Trump appealed to the Supreme Court and this time they decided to hear the case. Slowly. Just this week, on April 23rd, they heard oral arguments.
A lot has been written about that oral argument. I won’t rehash it all. I listened. It was a fascinating discussion of presidential power and accountability. The way they were talking, it was easy to forget that there’s actually a case involved, one where Mr. Trump is charged with trying to overturn an election. Almost nothing was said about that case, except when Justices said that their concerns had nothing to do with the present case, that they were interested in getting the balance right for the future.
We do not know when or how they will rule. We do know that just like those voters in South Carolina, we are denied justice by the Supreme delaying tactics. The Court’s timeline and those interesting questions for a future time that they now seem to think must be decided before we get to the underlying case, dim any prospect of Mr. Trump standing trial for attempting to overturn the last election before he attempts to win the next one. Apparently, the Court finds unthinkable holding this trial before a possible future President Trump can order it halted. Just as in the voting rights case, the Court has put down scales of blind justice and picked up a partisan clock they can run out.
What does all this say about the Roberts Court? What does it say that Black voters are denied justice, Mr. Trump is given one pass after the next, and all voters are denied the evidence of wrongdoing that would come out were an election subversion trial to move forward?
Before I answer that, there’s more to consider, because the stuff we’ve talked about so far is about partisanship. And that’s bad. But it isn’t the whole story.
Justice Thomas participated in the oral arguments on presidential immunity. The case, however, is not about immunity but about election subversion. Subversion, we now know his wife Ginny encouraged and supported, and helped fund. In every other court in America, ethics rules would prohibit his participation. This week, not a single Justice objected.
This is the same court that has taken millions of dollars in free vacations, private jet travel, and, at least in Justice Thomas’ case, cash in the form of loans that may have required no repayment. All gifts from people with an interest in cases before the court. All gifts from people whose dark money now corrupts our politics at all levels because this court overturned campaign finance laws in their Citizens United Decision. Call me a simple Alderman, but I saw a lot of my City Council colleagues go to jail for less.
Wait, not done. Because partisan and corrupt doesn’t do this Court justice. Think of the Dobbs decision and this Courts’ rulings that seem to favor the establishment of their religious dogma. Justice Alito would let women die rather than let doctors do their jobs. It’s hard to know what to call this, except cruel.
All of this is to say, the Roberts Court is partisan rather than jurisprudential, it has done more to move the clock of racial justice backwards than any since Justice Roger Taney wrote the Dred Scott decision, and it is the most corrupt, well, ever.
If you care about your freedoms, if you care about the rule of law, vote. Winning, and winning big in November does not put an end to tyranny of this Court, but it makes it possible to get there.