The Unknown
Applegate is horsing around but I'm gonna try giving an Old College Try to have some policy discourse
The heat was hot, and the ground was dry
But the air was full of sound
It’s like there’s a horse loose in a hospital. I think eventually everything’s going to be okay, but I have no idea what’s going to happen next. And neither do any of you, and neither do your parents, because there’s a horse loose in the hospital. It’s never happened before, no one knows what the horse is going to do next, least of all the horse. He’s never been in a hospital before, he’s as confused as you are. - John Mulaney
The premise of this one is pretty silly. The Animorphs make a trip to the desert. Yup, I mentioned they’d have to go through the desert metaphorically. This time it is literal. Cassie1 and Rachel go with Cassie’s dad to visit Crazy Helen who found a sick horse on the edge of the Dry Lands. The Dry Lands is an area by Area 91, a clear reference to Area 51 which is associated with UFO sightings and government coverup of conspiracies.
When they arrive at the Dry Lands, they see a horse acting strangely, stumbling around and seeming to try to dial a pay phone2. Ultimately, Cassie’s dad conveniently goes to get supplies to treat a snake bite when a Yeerk crawls out of the horse’s ear. The horse explodes in front of them in a blinding light.
The full premise of this book is that the Yeerks are trying to infiltrate Area 91, which has some evidence of alien technology that might be useful to the Yeerks or raise suspicions of their invasion. But the Yeerks decided to use horses to do the infiltrating. They do some sort of alteration to allow Yeerks to infest the horses3. Pretty silly stuff. Ultimately, this ends up being a book with some of the funnier bits as well as amusing and strange imagery.
We’ve just come off of The Andalite Chronicles which was a longer and one of the more serious books in the series. Before that, The Change was also a serious and important book in the series. Animorphs was due for a lighter book, and the year this book was published Applegate also had her first child. So, you could say she needed to do some horsing around.
[pause]
[looks at reader]
Animorphs usually has silly humor that I enjoy. There is a bit in this one where Marco, Rachel, and Cassie are captured by the Army at the base and pretend to be characters from the X-files which I enjoyed. but some of the humor in this one isn’t quite my style. But it’s humor for kids, it isn’t meant for me. Sometimes this kind of humor is called “potty humor,” and it turns out that The Unknown4 object being seriously studied by the US government in secret is an actual Andalite space toilet. But since this is one of the lighter books that has more kid humor it does tend to be viewed as one of the weaker Animorph books.
Of course, the other reason people might not like it is because the plan to use horses to infiltrate the government instead of just taking control of humans sounds stupid. The actions of the Visser dealing with his underlings don’t make sense. The Visser’s personal involvement near the end of the book seems reckless and unnecessary. But as I’ve written before, I think this stupidity of the villain is actually a strength of the books.
And in this book, we get to hear from lower level Yeerks that are, it turns out, just doing a job and hate their boss. After acquiring horse morphs the Animorphs manage to join a group of Yeerks in horses and Ax translates their conversation with each other.
<Ax, can you understand what they said?> Jake asked.
<Yes, of course. They said to follow the plan. “If we do this right we’ll be off this idiotic assignment, out of these idiotic stupid bodies, and back onboard the ship where we belong.” That’s what the leader said.>
It turns out some of the Yeerks are just middle managers trying to do a job the best they can. They have bosses that are assholes that ask them to do stupid things. If you read this book and thought “hey, the Plan A that the Yeerks pursued seems stupid and out of nowhere, maybe they should have just tried the more straightforward Plan B first?” I have some news for you! One of the characters in the book shares your view. And reader, things didn’t end well for that Yeerk. It wasn’t because the Yeerk was stupid or bad at his job, just unlucky. And this isn’t the last time a Yeerk goes, “hey my boss is a big dumb idiot, I think I’m going to act assuming that my boss is a big dumb idiot even though the information I have might be helpful for running this invasion.”
Because sometimes leaders are big dumb idiots with power to brutalize other people. Sometimes leaders got to where they are not by being good leaders but by wielding power or grabbing at power and brutalizing others any chance they got. And instead of thinking “hey, maybe things will work out if I’m not constantly pressing my boot on the necks of people below me” they think “the way to make the world better is to make sure everyone is submitting to authority. Oh, and also, I should have authority.”
Sometimes this looks like personally grabbing power for themselves. Sometimes this looks like empowering the already powerful. Sometimes this looks like stripping what little protections or rights the poor and marginalized have of being stepped on by the people around them with power.
Ok, let’s talk about one of the most powerful institutions in the world.
The Supreme Court: Newly Constituted
I’m not going to go through an entire modern history of the Supreme Court. For that I’d recommend Erwin Chemerinsky’s book The Case Against the Supreme Court. He is a legal scholar that actually wrote the textbook that most 1L law students use in their first year Constitutional Law classes. He’s also a big proponent of court reform. You might think since he literally wrote the book on constitutional law that students come away with similar views to him on the direction courts should be taking the law. The funny thing is, if you listen to scholars who actually share his vision for court reform, they’ll be quick to disabuse you of this notion. An alternative to reading Chemerinsky is to listen to the podcast 5-4 “a podcast about how much the Supreme Court sucks” which goes through cases throughout the Supreme Court’s history on how they’ve often eviscerated civil liberties, rights, and democracy when given the chance. Or Strict Scrutiny, a podcast by three angry women law professors. Suffice it to say, there are now a decent number of thoughtful commentators trying to sound the alarm here.
One of the things they’ll point out is how attempts to numerically analyze the court are futile. Trying to analyze how often Supreme Court justices rule together is going to give you a woefully incomplete picture - the Supreme Court decides which cases to take, when to release opinions, and understands that its power comes from decisions being respected. This past term, for example, the Supreme Court smacked down numerous cases from the fifth circuit that pushed the boundaries on conservative jurisprudence. There was a case on medication abortion that the court dismissed on standing. There was a case on whether federal law that requires emergency rooms to treat emergencies in pregnancies which the Supreme Court dismissed for now5. There was a case about whether it was ok for social media companies to moderate their platforms and whether they could talk to the federal government while making those decisions. There was an absolutely bananas case about whether the government could restrict gun ownership against people with a domestic abuse order against them where the plaintiff had multiple gun related crimes.
Every one of these cases and more got smacked down. The narrative if you just looked at the numbers or these cases might be that “the liberals won”. But that misses several things. It misses that the court decides which cases to take up, leaving some where a lower court ruling might serve the courts conservative interests. It misses that ruling against a lower court might gain the Supreme Court some moderate sounding headlines. It misses the conservative direction the court has pushed the nation in with cases in general, while maintaining status quo in some other cases. And it misses that in many of these cases the court has set up one-two punches to come back to substance later by overruling on technicalities.
But one way you can look at how conservative the court has gotten is by looking at who is on it over time. And while even a quick glance might lead you to some incorrect conclusions, the Court is small enough that we can look at those exceptions pretty quickly.
For the last 50 years the majority of the court has been shaped by Republican presidents despite the relatively even split in presidential power. Not coincidentally, the last time the liberals had a majority was the Warren court, which saw the largest expansion of civil rights. One of the basic problems with the graph above is that some of the justices appointed by a Republican or Democratic president might be more or less aligned with the party than expected. This can be for at least two reasons. One, party legislative priorities and ideologies change over time. A jurist who was broadly aligned with some of his party in one era may be out of step with them and more aligned with the other party in the next. The reason I don’t go back further here is that there was a great shift as a result of civil rights. Consider the Civil Rights Act of 1964
The Southern Democrats that voted against Civil Rights were often aligned with corporate interest and suspicious of expansions to welfare or taxes. They would nearly all be replaced by conservative Republicans with largely similar views to their predecessors. Thankfully, the jurists who got on the courts were largely Republicans that would have been replaced by more corporate Democrats of today.
The second reason is that before the 80s and the rise of the Federalist Society there was less vetting for ideological purity. People wanted to think of courts as an independent bulwark outside of the political process. As the parties have become more sorted based on conservative and liberal ideology it has become increasingly clear this is untenable. Judges, and especially Supreme Court Judges who set precedent for lower courts, sit squarely within the policy decision making process, now more than ever6.
So let’s take a look at all of the justices since 1957. I’ve highlighted in red the justices nominated by Republicans and Blue those nominated by Democrats. Note that the years are not spread evenly because the only way a Justice leaves the court is by death or retirement.
After the Warren Court was the Warren-Burger7 court, largely thought of as a reactionary court and then segregationist Rehnquist took over as Chief Justice with Scalia filling his seat. Make no mistake, this court rolled back some of the wins in civil rights from the Warren Court during both of these periods, I’ll refer you 5-4 and to Chemerinsky if you want to dive into examples8. But despite the supermajority of justices coming from Republicans, some wins for liberals came during this time too9. Brennan was a long serving justice that by the end of his career was writing dissents with Marshall against the much more conservative court than the Warren court he remembered. Blackmun ended up siding with the liberals on Roe and being arguably more liberal justice than later Breyer given Breyer’s inexplicable love for the police and upholding of Gitmo detentions. John Paul Stevens and Souter also ended up being much more moderate than the presidents who nominated them. Though no justice nominated by a Republican can honestly be called progressive or leftist, it is fair to say that by the time Blackmun, Souter, and Stevens left the court they likely would have identified more with the centrist Democratic party of Bill Clinton than the party of Bush or Trump.
Ultimately then, the center of the court did not move much when Blackmun, Souter, or Stevens retired.
But it did shift right when Thomas, accused of sexual assault, replaced Marshall. Swing justice O’Connor decided Bush should be president so she could be replaced by conservative freak Alito. And Kennedy decided he would be replaced by his frat-boy clerk that also participated in the wide-ranging investigations that were trying to find a Bill Clinton10 crime.
So although the court has been captured by Republicans since the Warren court, it was not until Barret replaced Ginsburg that a true conservative supermajority emerged. The court has always been dumb and cruel. It has always made dumb cruel decisions from Dred Scott v Sanford, to Lochner v New York, to Buck v Bell, to Korematsu v United States, to LA v Lyon. But the Roberts Court has been a special kind of danger that has been getting as bad as these legendarily bad landmarks11. Until the last couple of years, Shelby County v Holder and voting rights cases in its wake were the worst cases of the Roberts court. The recent term had two decisions vying to take its place among the worst decisions in history.
End of The Recent Term - It’s Time for Some Bad Decisions
Diaz v United States
From the housetops to the gutters
From the ocean to the shore
Let’s start with a couple of mundane case before we get to the truly ugly.
Cases coming before the Supreme Court involve actual people facing real life consequences. By the time a case gets to the Supreme Court the arguments are often abstracted to broader principles because they involve a question that the Court has deemed sticky, or important, or useful for them to rule on. Cases aren’t usually direct challenges on constitutional grounds directly to landmark legislation, although that happens, but instead are usually some arguments involving federal regulations, criminal proceedings, or civil harms.
The case involves Delilah Diaz, a US citizen, arrested as she was re-entering the United States. While entering, a border patrol agent asked her to roll down her rear window. Diaz, in the driver seat, said the window had a manual window so the border patrol agent came out to help her open it. In the process he heard a crunching noise and subsequently found $368,000 of methamphetamines hidden in the lining of the car. Diaz was arrested. At the arrest, Diaz claimed the car was not hers, but her boyfriend’s car and she did not know the drugs were there. The prosecution brought in a security agent, basically another cop, on the idea that he is a Mexican Drug Trafficking expert. He told the jury that large quantities of drugs aren’t entrusted to people who don’t know they have the drugs. Diaz objected based on Federal Rule of Evidence 704(b)
[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”
The Supreme Court, in a 6-3 decision, ruled against Diaz, upholding her sentence of seven years in prison. The courts argument was that expert witnesses are allowed, and the expert witness didn’t say Diaz had a certain mental state just that most people who cross the border with drugs in their car know the drugs are there. That’s basically the entire decision and reasoning. There is a recounting of some of the facts of the case and a bunch of reasons anyone reading should think Diaz is a bad person and criminal. But the question of whether someone is guilty of a crime, whether they acted criminally and had the mental state to know what they were doing, is the entire question for a jury and not a court. Gorsuch’s dissent, I think, shreds the opinion to pieces pretty well - pointing out that this decision shifts the standard from innocent until proven guilty to guilty until proven innocent. If a prosecution can bring an expert witness in to testify that most people of a certain class are guilty then the task of the defense becomes proving innocents rather than a reasonable doubt. Here’s an early paragraph to give the basic idea.
The upshot? The government comes away with a powerful new tool in its pocket. Prosecutors can now put an expert on the stand—someone who apparently has the convenient ability to read minds—and let him hold forth on what “most” people like the defendant think when they commit a legally proscribed act. Then, the government need do no more than urge the jury to find that the defendant is like “most” people and convict. What authority exists for allowing that kind of charade in federal criminal trials is anybody’s guess, but certainly it cannot be found in Rule 704.
It’s a pretty good dissent. It even has Gorsuch saying “(yes, really)” at one point when recounting how the Agent was brought in as a fellow employee without interviewing Diaz. You can almost see and hear Gorsuch looking at his Republican colleagues going “are you seriously reading the same case as me? You’re seeing this shit? And you think this is in any way reasonable? I can’t believe how stupid the prosecution was for pulling this shit! And they’re getting away with it!”
One final point about this case: if the court had thrown the evidence out it is not clear whether a new jury would have found Diaz innocent. There were quite a lot of drugs, a jury could easily have still found the defendant guilty.
There is also a strange bedfellow in the majority opinion in Justice Jackson, the recent Biden appointee. She writes a concurrence that at some points sounds like it could be a dissent. She defends the use of expert testimony here to also defend testimony involving other states of mind experts. Specific examples, she points out lie detector tests are notoriously bad and witness testimony is often flawed. She was a public defender, and these are the sorts of experts that would be helpful to help a jury think through mental states they might not encounter in day-to-day life. I get what she is doing. She is well aware of this courts disdain for expertise, and I imagine we may see her bring this concurrence up in a future case.
Department of State v Munoz
The warning signs have all been bright and garish
Far too great in number to ignore
This case involves Luis Asencio-Cordero, a citizen of El Salvador, and Sandra Munoz, his wife and a US citizen. He applied for a visa and was denied. The question here is whether Munoz has a right to due process, a right to be given a reason for denial of Asencio-Cordero. Crucially, since this case involves marriage, it is actually a question of whether the due process rights in Obergefell still apply under this newly constituted court. Realistically, the question of same-sex marriage rights that give couples the right to visitation in hospitals, file taxes together, and so on won’t be revisited in the same way as it was nearly ten years ago. The reason for this is because Congress codified Obergefell’s holding into law. But the logic that brought Obergefell is at play here - does the association of marriage grant rights of equality and due process?
The court says no, and broadly denies the constitution applies any rights to non-citizens. The court could have ruled on narrow grounds. It could have just forced the government to give the most specious of reasons - from the facts of this case the government that denied the visa application believed Asencio-Cordero had gang ties12. This is an extremely low bar for the government to meet. But the court wanted to signal that the logic of Obergefell no longer applied.
Conservative clerics love to invoke the objective good as something they believe in that those evil liberal relativists don’t. But then, in cases where the principles of equality and rights are in question for particular classes, conservatives are the ones consistently ruling that this or that underclass doesn’t have rights. Sotomayor writes the dissent in this case and makes clear the connection to Obergefell. Here is the closing which quotes de Tocqueville [references removed].
A traveler to the United States two centuries ago reported that “ ‘[t]here is certainly no country in the world where the tie of marriage is so much respected as in America.’ ”. Today, the majority fails to live up to that centuries-old promise. Muñoz may be able to live with her husband in El Salvador, but it will mean raising her U. S.-citizen child outside the United States. Others will be less fortunate. The burden will fall most heavily on same-sex couples and others who lack the ability, for legal or financial reasons, to make a home in the noncitizen spouse’s country of origin. For those couples, this Court’s vision of marriage as the “assurance that while both still live there will be someone to care for the other” rings hollow. I respectfully dissent.
Snyder v US
From the cities to the swamplands
From the highways to the hills
Our love has never had a leg to stand on
From the aspirins to the cross-tops to the Elevils
This case is the latest in a long line of corruption cases that came to the Supreme Court. The Supreme Court has been asked multiple questions involving corruption statutes written by Congress along the lines of elected officials going up to the court and asking
“So, this sort of corruption, taking bribes in this way or enriching myself in that way? All good? Is being a corrupt powerful person okay? Or nah?”
and the Supreme Court basically every time going “yeah, that’s fine”13
Snyder v US involves a mayor found guilty by a jury for soliciting and accepting $13,000 from a trucking company that he had awarded an over a million-dollar government contract a few days before the solicitation. The podcast Strict Scrutiny had my favorite description of this case describing it as “just the tip” theory of bribery. The legal argument being made is that the bribe he accepted was given after the government contract and so is actually a “tip” more than a bribe. The Supreme Court in a 6-3 decision accepts this idea with all Republicans in the majority and all Democrats in dissent. I don’t really have anything more to say here. This case and many the Supreme Court have ruled on are enraging. Jackson’s dissent is good, she may have knocked some sense into Kagan and Sotomayor that maybe government corruption is bad.
Grants Pass v Johnson
From the entrance to the exit
Is longer than it looks from where we stand
I want to say I'm sorry for stuff I haven't done yet
Ugh, I wrote about this already. I was right about how the court would rule. This decision by Gorsuch is incredibly cruel. One of the quotes I used at the top of that piece that brings up Grants Pass is a satirical take on equality of law.
The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread
The point of this is pretty clear. Rich people don’t need to sleep under bridges, beg in the streets, or steal their bread for food. There is a line in Gorsuch’s decision that sounds a lot like this quote but instead of amusing satire Gorsuch is saying it with earnest obliviousness to the cruel stupidity.
Loper Bright, Relentless, and other cases
Things will shortly get completely out of hand
I can feel it in the rotten air tonight
In the tips of my fingers
In the skin on my face
This is one of those rare cases where talking about the cases is actually not getting a good grasp of the issue. This is the bombshell of the term that I was expecting, an all-time bad decision. I feel not quite up to the task of explaining this case, along with Jarkesy, Corner Post, and a few others this term, all add up to a naked power grab by the court of the regulatory administrative state created by Congress and executed by the President. So, I’ll just quote some of Elie Mystal here.
But repudiating democracy to expand its own power is exactly what the Supreme Court did today in its ruling in Loper Bright Enterprises v. Raimondo, which overturned Chevron. In a 6-3 decision, which split exactly along party lines, Chief Justice John Roberts ruled that the courts—and, more particularly, his court and the people who have bought and paid for the justices on it—are the sole arbiters of which laws can be enforced and what enforcement of those laws must look like. Roberts ruled that courts, and only courts, are allowed to figure out what Congress meant to do and impose those interpretations on the rest of society. He wrote that “agencies have no special competence in resolving statutory ambiguities. Courts do.”
That is a naked power grab that places the court ahead of literal experts chosen by the president, who is the one elected official we all get to vote for. Who do you think has a “special competence” in resolving what the word “clean” means in the context of the “Clean Water” or “Clean Air” act—experts at the EPA or justices on Harlan Crow’s yacht? Who do you think has a special competence to resolve what “safe” working conditions require—experts at the Occupational Safety and Health Administration or justices who have never worked as much as a day at a job that requires them to be outside? Who do you think has a special competence to resolve what “equality” means under the Civil Rights Act for women in workplaces—experts at the Equal Employment Opportunity Commission or justices who have been accused of attempted rape?
It remains to be seen what will come of this case going forward. Already, Biden’s regulation against non-competes has been hampered in courts. This is in the weeds policy, but the regulation against non-competes is one of those clear win-win for labor rights, the free market, and economic growth. Loper Bright is a cannon ball shot through government efficiency and democracy and a pretty brazen return to the Lochner Era. I can see it being potentially worse than Shelby County for the long run functioning of our government and health of our democracy.
Trump v United States
In the weak last gasp of the evening's dying light
In the way those eyes I've always loved illuminate this place
Like a trashcan fire in a prison cell
Like the searchlights in the parking lots of hell
Aptly named case. The question
Does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office, and if so, to what extent?
Before even getting to the case, I want to note a few things. These have been noted by plenty of others, I’m not saying anything new. First, the court declined to take this case when the prosecutor first tried to bring it directly to the Supreme Court. Law experts thought that the Court might decline this case then when it got to them and were surprised when they took it. The Court then, by taking it, was seen to be delaying the case so that Trump would functionally get immunity no matter how they ruled. To a lot of legal scholars, there was no way Trump would see a jury trial or conviction in this case until after the election.
With that gift to Trump, I thought this case would end up ruling against Trump. Especially given some of the absurd hypotheticals posed to Trump’s lawyers. This case elicited headlines before it even got to the Supreme Court because Trump’s team was asked if a president ordered Seal Team Six to assassinate a political rival if they could be prosecuted in a court of law. The exchange is amazing.
Judge: Could a president order S.E.A.L Team Six to assassinate a political rival? That is an official act, to order S.E.A.L. Team Six.
Trump Attorney: He would have to be and would speedily be impeached and convicted before the criminal prosecution.
Judge: But if he weren’t, there would be no criminal prosecution, no criminal liability for that?
…[floundering]
Judge: I asked you a yes or no question, could a president who ordered S.E.A.L Team Six to assassinate a political rival, who was not impeached, would he be subject to prosecution?
Trump Attorney: If he were impeached and convicted first.
Judge: So your answer is no
I thought this case was a loss for democracy in the sense of it delaying Trump’s trial and figured the Court dragging its heels was immunizing Trump from the moment the court took it. I figured the Court would remand it back with a smack down to Trump but include some more delays remanding to the lower court while looking like it was independent. The Court even delayed releasing the case to the end of the term - it was quite literally the last case of the term released. Most legal scholars, even the most suspicious of the court, seemed to think the court ruling against Trump was likely too. Roberts would get some headlines about smacking down Trump with flowing rhetoric about no president being above the law. In reality, Roberts was giving him a gift. I was even making some jokes the day before, hedging my bets a little bit but feeling like the worst decisions had already come.
People saying tomorrow's Trump Immunity decision is “the most important decision of our lifetime”
Oh, honey, i am not sure it will even crack top 3 in the last week. Hell, the fact that it was delayed to July might be a bigger deal than the holding unless the SCOTUS actually buys the argument
That was me the day before, oh honey you were so young and naive thinking that the Court wouldn’t buy the argument.
Just in case more is legal for President Biden than he thinks, maybe he should have a meeting with Seal Team 6 scheduled tomorrow morning
Ah, so funny. I was getting in that joke for the last possible time because I figured I couldn’t make it the next morning. Oh boy, was I wrong. Boy am I an absolute asshole who didn’t realize how bad things could get.
The Supreme Court, with Roberts writing the decision that all six Republicans joined except Barrett dissenting in part, ruled that Trump does in fact have immunity befitting a supreme and vigorous executive. Roberts rules that Trump has
Absolute immunity for "official" acts under the presidents conclusive and preclusive immunity.
Presumptive immunity, and maybe absolute immunity, for zone around official acts. This is basically a "tie goes to the runner" type situation that includes talking with executive branch people or directing DOJ to do stuff. Roberts explicitly threw out some things from the case that he views as within this zone.
Cannot bring evidence in court for actions which are immune, so this might include mens rea stuff, state of mind questions as in Diaz above, including the case he was convicted for meaning a prosecutor can't use stuff he said to officials in his admin to prove he did crimes
Functionally, this gives Trump clear immunity to tie up even the most egregiously criminal activity in courts for years. Or, it just gives Trump the ability to throw out cases. Not even clear impeachment would allow prosecution. Roberts's opinion even makes the argument we need a "vigorous" executive and that's why all of these immunities must exist. You don't find this in the constitution laying out presidential powers. Real monarchist stuff.
And yeah, the dissents torch him. Roberts claims they are fear mongering, but we’re talking about a case involving an angry mob that took over the capital with the intent to hang Nancy Pelosi and Mike Pence. They set up gallows. The hypotheticals were literally in the oral arguments in the case, they didn’t spring from active imagination. One of the major challenges facing Republicans if this case becomes widely discussed is that most voters are older than four years old and can probably remember January 6th, 2021. And Roberts never addresses how his holding addresses the hypotheticals because his holding doesn’t, he can’t address them. Here are the passages from Sotomayor’s dissent that have been shared the most.
Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he 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.
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
With fear for our democracy, I dissent.
It doesn't matter that the dissents are good. It doesn’t matter that they have more logic, reality. It doesn’t matter that they are more grounded in the constitution or in the objectively moral. Roberts has the power.
Coda: So, what are we to do?
I will walk down to the end with you
If you will come all the way down with me
This piece was supposed to come out last week. Maybe it’s good that it comes out on the 4th of July. Originally my plan for this piece was to revisit Grants Pass. To connect back to the cruelty and stupidity of the Visser as he steps on those below him. I thought a couple more cases would illustrate the rotten corruption the state allows of prosecutors, workers denying visas, and mayors. Then I added in Chevron, and considered pointing out how the Court was now making a power grab to oversee administrative decisions that they have little expertise or understanding of. Ultimately, Trump v United States ties the whole paradox of the conservative project together. There has been a lot of talk of this decision giving the president complete unfettered power like a king, but that isn’t quite correct. Altogether, these decisions mean the power of the US government is suspect when it is wielded to protect everyday workers or give any welfare or comfort to the poor and must be closely checked by the court, but the power of local governments over homeless people, of prosecutors over potentially unwitting smugglers, of the president over everyone else? The power to wield that power to inflict against potential enemies shall not be infringed. That is - a president can be a king, but only a king interested in lopping off people’s heads. Helping people is strictly overseen by the courts.
I’m not going to lie, this makes me angry, sad, and hopeless. Sotomayor replaces the conventional “I respectfully dissent” in this case. instead of respectfully it is “with fear for our democracy” and boy is that not a fun signal for a Supreme Court judge to try to send in a dissent. So here I’m going to end with a little attempt at hope before heading off to celebrate what I hope is not the last of my least favorite holidays.
There is always hope. I’ve put at the beginning of each of these cases a quote from the Mountain Goats song “Old College Try” from the album Tallahassee. The album start to finish is great - it’s the story of “The Alpha Couple” which is the story of abusive love always on the edge of divorce. Right now, our democracy feels eerily like an abusive relationship, and sometimes it feels that just like this couple’s story will clearly end badly it might feel America’s story will end badly and that there is nothing any one of us can do. But it doesn’t have to, and God help me even after being wrong about how the Trump immunity case would go, even after thinking 2016 would end differently, even after hoping in 2020 people might band together, I still have hope that the people around me can have the capacity to choose hope. Because the reality is that humanity contains multitudes.
The 20th century contained the Holocaust of the Nazis, perhaps the worst atrocity mankind ever perpetrated on itself. But it also had the best of us. Vaccines, antibiotics, expanded refrigeration, better living conditions. We smoked ourselves with cigarettes into more cancer but somehow built a medical system to fight that to a draw and are now winning14. We eradicated smallpox.
Laws are made up things that we decide on, that we act on together. Ultimately elites like the Supreme Court, like Congress, like the president, and even honestly journalists and bishops decide which laws and norms we pretend are real end up having any force in reality. Society is held together with twine, duct tape, and a little love and kindness. Ultimately, I have little impact on these decisions. But I do have some, in the little screeds I write and little ways I try to focus my attention on things that I think matter. I hopefully have little impacts on the people around me. And I’m gonna walk all the way down to the end to try to leave my daughter a better world.
who narrates
Reminding us that it’s the 90s.
Huh, I wonder if that’ll come back around
Hey, that’s the name of the book!
dismissed as improvidently granted…this one looks like a pretty baldly political maneuver to return to the case after the election. I’m sort of floored that so-called pro-life policy has gone completely in the direction of “women should absolutely die if a pregnancy is going south”. There’s always been scoundrels, misogynists, and fascists infecting the movement but like an absolute idiot, I believed the people who claimed that a procedure that resulted in the death of the fetus if the mother’s life was endangered either wasn’t an abortion or was an acceptable abortion in their eyes and balked in 2016 when Trump suggested jailing women for abortions. But now those peopleWhat an asshole I look like now.
oh buddy, you know that’s gonna come back around.
This is confusing for newcomers to SCOTUS study given the “Warren” and “Warren-Burger” sound similar to those new to looking at the court.
LA vs Lyons in 1983 is one of the most horrifying
The Chevron decision for example. A case called Bivens made the fourth amendment a reality as well which has unfortunately been pretty much completely destroyed although not overturned. The fourth amendment protection against illegal search has barely any protection in reality.
And because it was the 90s they couldn’t just go after his multiple sexual crimes. Even the Lewinsky-Clinton scandal was largely about lying under oath rather than taking advantage of a subordinate.
You might say we are in a new Lochner era.
The plaintiff maintains he didn’t
And the Democrats shouldn’t be let off the hook here. Kagan and Sotomayor have been on the shitty side of corruption before and some of the cases are blood boiling. I recommend checking with your doctor before subjecting yourself to this line of cases.
If you’re in the mood for a cancer book, The Emperor of All Maladies is great.