Official White House Photo by Tia Dufour
Many of us dreaded this year’s U.S. Supreme Court session with two Donald Trump appointees judging some of his most divisive controversies, but the first thing that must be said is the results were absolutely amazing.
As David Cole, legal director of the American Civil Liberties Union, said: “If you had predicted when this term began that the Supreme Court would extend employment discrimination protections to LGBT individuals, strike down an abortion restriction, reverse Trump’s revocation of protections for ‘dreamers,’ reject Trump’s efforts to bar subpoenas for his tax records and declare half of Oklahoma to be Indian land, you would have been dismissed as delusional.”
What all those surprising decisions really show is the extreme lawlessness of Trump and Republicans have become a major national embarrassment even for a Supreme Court with a conservative majority.
Anyone who believes Chief Justice John Roberts has become a raving liberal or even a moderate centrist is living in fantasy land. Leading the court, Roberts has been a right-wing force rolling back minority voting rights, refusing to prevent corrupt political gerrymandering that distorts election results and ending court-ordered racial integration of schools.
Protecting the Court’s Legacy
But Roberts also is protective of his own legacy and offended by transparently dishonest legal arguments, pretty much the only kind Trump and William Barr’s Justice Department know how to make.
Roberts wants Trump at least to come up with some acceptable legal cover story when he violates civil rights. Roberts sided with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan in a 5-4 decision declaring the administration didn’t “provide a reasoned explanation for its action” to end President Obama’s “Deferred Action for Childhood Arrivals” (DACA) program. That provided a reprieve allowing 650,000 “dreamers,” undocumented immigrants brought here as young children by their parents, to stay and work on renewable permits.
|
|
Dahlia Lithwick and Mark Joseph Stern, legal analysts for Slate, describe Roberts’s message to Trump as “Lie better next time.” Roberts said the same thing when the court rejected adding a citizenship question to the census to discourage immigrant participation “and it tells you what you need to know about the chief.”
Extending Protections
The court’s other major civil rights case was the 6-3 decision extending protections against job discrimination based on sex to gay, bisexual and transgender employees. That created an even greater conservative earthquake because both Roberts and Trump appointee Neil Gorsuch joined the liberals.
Gorsuch wrote the decision shattering the concept of “originalism” conservatives use as intellectual cover for extreme right-wing decisions. The idea is laws mean exactly what they meant to those who originally wrote and ratified them. That’s very convenient for conservatives since our Constitution was written at a time when women, people of color and whites who didn’t own property had few if any rights at all.
Gorsuch’s shocking update is words actually mean what they say whether the authors realized it or not. Gorsuch acknowledged when laws against sex discrimination were written in 1964 lawmakers probably weren’t thinking about gay or transgender employees. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
No Absolute Immunity
The Supreme Court overwhelmingly rejected 7-2 Trump’s absurd claim in two cases he had “absolute immunity” from being criminally prosecuted or even investigated as President of the United States. Trump’s lawyers made fools of themselves in court arguing the immunity would apply, yes, even if Trump shot someone in the middle of 5th Avenue.
Roberts wrote the landmark opinion for the seven conservative and liberal justices that included both Trump appointees Gorsuch and Brett Kavanaugh. Roberts rejected Trump’s argument he could ignore legal subpoenas for his tax records from criminal prosecutors in New York and Congressional oversight committees. “In our judicial system, ‘the public has a right to every man’s evidence,’” Roberts wrote. “Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”
The justices would have gone down in history as a band of criminals themselves if they had made any decision allowing Trump, Tony Soprano or any other miscreant president to go on unlimited crime sprees. As long as they were Republicans, the current Senate wouldn’t even remove them from office.
No one knows what criminal evidence may exist in Trump’s tax records. But New York prosecutors are investigating both bank and tax fraud after Trump’s personal attorney Michael Cohen testified Trump inflated property values to get larger bank loans and lowered them to reduce his taxes. Cohen was sentenced to three years in prison for tax crimes he said Trump directed. That raises the possibility of the Supreme Court’s decision ultimately putting Trump behind bars.
No one knows whether Trump could legally pardon himself before he leaves office for crimes he hasn’t been charged with yet, but he shouldn’t count on a friendly decision from the Supreme Court.
To read more Taking LIberties stories, click here.
