Rather than knocking down straw men or attacking their critics, the justices (and their defenders) would do well to explain why the sharpest criticisms of the Court's recent behavior are *wrong.*
"These responses continue to suggest that, for whatever reason, they either don’t think the Court’s credibility is under serious threat so long as its support erodes mostly from one side of the aisle, or, even worse, they don’t care."
Couldn't your analysis here also be a reasonable explanation for Justice Barrett's response on Fox News yesterday? Ascribing some of their behavior to arrogance may seem reductionistic, but also feels sadly reasonable.
These justices, (particularly the conservative ones, for a number of reasons, not excluding privileged lives), seem to live in a bubble.
Perhaps the 6 are so focused on achieving the unitary executive, they understand deep down that when the Grail is had the opinion of the Court will no longer matter.
The more that the Court and its defenders are not at all invested in responding to their critics on the critics’ terms, and the more that they are disinterested in shoring up the eroding support for the Court from those who don’t necessarily agree with its bottom lines, the more they are sacrificing the Court’s long-term health for the sake of their short-term ideological agenda.
I’m not a lawyer or a judge. I try not to sound like a conspiracy theorist. However, I do believe the 6 conservative justices hold more fealty to the Heritage Foundation than to the U.S. Constitution&laws.
Thank you for this in-depth analysis of SCOTUS. Most Americans are oblivious to how the few but far reaching decisions made by SCOTUS are detrimentally reshaping our democracy. Skeptical at best is how we should approach the SCOTUS "rulings". But when you take into consideration all the extraneous but interconnected issues and concerns related to said “rulings” SCOTUS is derelict in its duties to guide the lower courts in resolving cases with carefully considered precedent and constitutional adherence. ACB is just being evasive and disingenuous when she says the SC does not want to “give the impression that we have finally resolved the issue”. Where is the follow up to the emergency docket rulings? Does SCOTUS even care that the lower courts’ decision making process is being undermined and hindered? And what is the end game of the “supreme” court? If they overrule all previous precedent the lower courts become obsolete — SCOTUS will become obsolete. Are they trying to take away the right to obtain judicial remedy? The Roberts court is bringing both shame and disgrace on our judicial system and the nation. It shows a complete and utter disdain towards those who are not seated with them on the bench and even towards three of their own colleagues.
As an aside, the fact that Amy Coney Barrett is the voice of the court right now is laughable. Does she want to sell more copies of her book — you bet! Does she provide the approachable face of the mom next door — you bet! Is she putting a
You may not be fully appreciating that the conservative justices are merely completely unbiased neutral arbiters of law, doing their best to only call balls and strikes and wouldn't dream of letting their personal beliefs or biases in any way influence their decisions. Plus, they have hard jobs, and it's unfair that we expect them to explain their work, be consistent in their approach or heaven forbid, abide by a code of ethics. #Sarcasm+
We hear (and have been for years) a great deal about "calling balls and strikes". The analogy to a home-plate umpire is weak to begin with, but it simply ignores the fact that the strike zone has amorphous edges.
Some time ago someone conducted a photographic study of call strikes and balls by a number of umpires. Each umpire’s calls were generally consistent, but as a group varied. Batters, like litigators, adapted.
I think this view is generally true of the Right and has been for some time and unfortunately tends to work. Attack the messenger and disregard the facts. Here are my July 10th thoughts with some examples of attacking the messenger strategy that is commonplace today. https://open.substack.com/pub/wpag/p/is-it-me?r=5gp94g&utm_campaign=post&utm_medium=web
First, thanks for acknowledging my request for your opinion on Bluesky yesterday. I’m a proud owner of your book The Shadow Docket. You’re correct that the conservative wing of SCOTUS is gaslighting the public. Just their rulings on “non-resolved” issues tend to make all of us think they are indeed actually resolved in private, without the full period being put on the sentence. We only get an actual explanation of the opinion on shadow docket rulings when a member’s arrogance (so it seems) outweighs their judicial credibility.
One quality the 6 members of the Court’s majority and their defenders seem to have in common, perhaps along with that side entire side of the aisle, is a profound lack of humility.
I realize my comment may sound simplistic. I strongly feel, at least in part, the SC is basing some of their shadow docket rulings in trumps favor because deep down they are actually afraid he will defy their orders. Then what once that is broadcast for all the world to see? They'd become irrelevant. They are more than aware it was their decision in early July last year to grant him almost full immunity. They refused to even entertain the idea of Jack Smith possibly winning a judgment against Trump. So instead a snap decision was made to protect Trump at all costs. Constitutional law be damned!
It has been suggested before that the Court may be acting out of fear of Trump, but I'd place my bet on it being due to real support for the unitary executive theory. As one example, it has often been mentioned that Chief Justice Roberts has long supported that theory, long before Donald Trump entered politics.
Yes great point. I've read about this as well. I still feel there is a touch of fear there too. ACB on Fox yesterday trying to put some legitimacy back in the court. Paraphrasing here, she says all we're really doing is making sure the rules of the law are followed. HUH? I guess it's some more of the rules for thee but not for me crap.
I agree that the only rational reason that the SC Conservative Six (SCCS) is operating in this questionable manner is likely quite simplistic. I don’t think that a concern of Trump’s possible ignoring SC findings and making the SC irrelevant is the most obvious thing that is banding the SCCS to abuse the shadow docket, although it most likely is a contributing factor. I propose that personal greed is a much better candidate. That greed might be for better freebee vacations, secret “loans”, selling more books, or even ego that history will favor their contribution to implementation of the President as “Unitary
So if this all goes according to plan for trump, (Unitary Executive) I wonder if future history books will accurately tell what part the SC played in this monumental change? Side note, I'm keeping a journal to jot down important events each day. I'd like my grandchildren to understand some of us really did try to save it.
I think what would be especially instructive would be to read up on social dominance.
I think the dismissive attitude on the right is largely due to a perception that "I'm winning" and "we own you". As childish as that seems, I think we have to admit that the right has a huge capacity for being exactly that: childish.
From Trump's tariffs, to armed masked men delivering a sick sort of revenge, to lying and cheating it's all about dominance.
You can find it on budget priorities and healthcare policies too.
It's hard to elevate the arguments of the right when their behavior betrays damaged childhood psyches that prefer "my turn" over healing.
They are authoritarians because that is probably all they know and you can't show empathy, kindness nor decency when it's your turn "to kick some butt". It's certainly been their view on race where to feel better about oneself they require the sugar high of superiority. Life requires enemies to slay.
Thompson's related arguments, which I accept, are (1) that the law, although a tool of the ruling class, is not only superstructure and not only a tool of the ruling class; (2) that, to retain its legitimating function, the law also from time to time has to be just and has to restrain the otherwise arbitrary power of the ruling class.
Meanwhile -- seeing the arc from the Patriot Act through "stay-at-home" orders to Trump (2024) to the regime's current war crimes in the Caribbean and abrogation of constitutional rights in the "Homeland", mostly licensed by the courts -- I reluctantly conclude that the ruling class is winding up the rule of law and that the process is accelerating. The orders have come down from on high, on a need-to-know basis, which includes the chief justice. Thus, the Supreme Court's majority, unfortunately, does not care that it is burning up its own credibility and the legitimizing function of the rule of law as a star burns through hydrogen, next helium, and finally heavier elements on its way to nova and supernova.
Perhaps the ruling class feels too threatened by even the few remaining restraints. Perhaps its greed has got the better of its judgment. Or perhaps it has rationally decided that the productive phase of capitalism is over (not least, it enabled too many social rights) and the looting phase is in full bloom, what no amount of legitimation methods can hide. Thus, consent, which requires some adherence to the rule of law, is being replaced by fear created by shock-and-awe brought home.
"The illusion of freedom will continue as long as it’s profitable to continue the illusion. At the point where the illusion becomes too expensive to maintain, they will just take down the scenery, they will pull back the curtains, they will move the tables and chairs out of the way and you will see the brick wall at the back of the theater.” --Frank Zappa
A legitimate court would explain its reasoning for anything and everything that it regarded as binding. “Because I said so” is never a good enough reason for regarding any ruling as proper, but this Court seems to believe otherwise. And that is why this Court has lost its legitimacy and its defenders are left with nothing but personal attacks.
Some of the most important principles in our Constitution were addressed by Chief Justice John Marshall in 1803 in Marbury v. Madison, and every SCOTUS justice is well aware of these principles. The duty of federal judges is not merely to act like dictators by merely dictating consequences. Their duty is to teach. That's the very reason that very many SCOTUS justices over the past 100 years have re-emphasized the emphasis by Chief Justice Marshall and SCOTUS in Marbury regarding this crucial duty of all federal judges: "It is emphatically" the "duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." Judges' duty is to expressly state the governing law and explain what it means.
The reasons for such rule are crucial. As Chief Justice Marshall and SCOTUS subsequently emphasized, each “Judge” is “required to declare the law” because if he “states it erroneously, his opinion” must “be revised; and if it can have had any influence on the” judgment, it must “be set aside.” Etting v. U.S. Bank, 24 U.S. (11 Wheat.) 59, 75 (1826) (Marshall, C.J.).
As many current SCOTUS justices emphasized in Bank Markazi v. Peterson, 578 U.S. 212 (2016), “Article III of the Constitution establishe[d]” a “Judiciary” that must be “independent” of all except the law, so the judiciary was assigned the constitutional “duty to say what the [governing] law is” in “particular cases and controversies;” judges “who apply [a] rule to particular cases, must of necessity expound and interpret that rule.”
I think the MAGA Six have decided to be as obtuse and vague as possible in order to continue giving the Trump regime room to usher in the white Christian nationalism they all crave.
Judeo-Christian nationalism, to be more precise, though I suppose the "Judeo" part is implied since conservative Christians tend to focus on the Old Testament and everything in the New Testament except the Gospels.
Department of State v. AIDS Vaccine Advocacy Coalition is a striking example of the problem with these unexplained emergency docket rulings. I’m surprised it hasn’t received more attention. It involves two blatant violations of the Impoundment Control Act by the Trump administration. As Justice Kagan’s dissent points out, the administration’s main defense—that only the Comptroller General can sue to remedy such violations—contradicts the plain language and entire background of the Act. It's hard to see any possible justification for the Court's action, which not only seems wrong on the merits but condoned the administration’s bad faith tactics. Worst of all, this supposedly interim ruling effectively mooted the case by allowing the administration to unilaterally cancel billions of dollars appropriated by Congress.
The old saying is, “You take your stand from where you sit.” Many of these justices have been sitting in places of privilege their entire lives; and those who haven’t have either been sitting too long on their cushy court seats or are the “new kids” who want to be accepted into the club. And this club doesn’t have any rules of conscience or consequences that they care about, so why should they have to explain themselves? What’s in it for them?
"These responses continue to suggest that, for whatever reason, they either don’t think the Court’s credibility is under serious threat so long as its support erodes mostly from one side of the aisle, or, even worse, they don’t care."
Couldn't your analysis here also be a reasonable explanation for Justice Barrett's response on Fox News yesterday? Ascribing some of their behavior to arrogance may seem reductionistic, but also feels sadly reasonable.
These justices, (particularly the conservative ones, for a number of reasons, not excluding privileged lives), seem to live in a bubble.
Justice Barrett admitted that she lives in a bubble, letting her husband serve as a filter for in-flowing information from the outside world.
Steve nailed it: lazy, uninformed, and they just don’t care.
Perhaps the 6 are so focused on achieving the unitary executive, they understand deep down that when the Grail is had the opinion of the Court will no longer matter.
The more that the Court and its defenders are not at all invested in responding to their critics on the critics’ terms, and the more that they are disinterested in shoring up the eroding support for the Court from those who don’t necessarily agree with its bottom lines, the more they are sacrificing the Court’s long-term health for the sake of their short-term ideological agenda.
well said by Steve, also.
The SCOTUS 6 is just making stuff up. Full stop. The only coherent thread to their rulings is: the #DirtyOldMan wins.
I’m not a lawyer or a judge. I try not to sound like a conspiracy theorist. However, I do believe the 6 conservative justices hold more fealty to the Heritage Foundation than to the U.S. Constitution&laws.
Thank you for this in-depth analysis of SCOTUS. Most Americans are oblivious to how the few but far reaching decisions made by SCOTUS are detrimentally reshaping our democracy. Skeptical at best is how we should approach the SCOTUS "rulings". But when you take into consideration all the extraneous but interconnected issues and concerns related to said “rulings” SCOTUS is derelict in its duties to guide the lower courts in resolving cases with carefully considered precedent and constitutional adherence. ACB is just being evasive and disingenuous when she says the SC does not want to “give the impression that we have finally resolved the issue”. Where is the follow up to the emergency docket rulings? Does SCOTUS even care that the lower courts’ decision making process is being undermined and hindered? And what is the end game of the “supreme” court? If they overrule all previous precedent the lower courts become obsolete — SCOTUS will become obsolete. Are they trying to take away the right to obtain judicial remedy? The Roberts court is bringing both shame and disgrace on our judicial system and the nation. It shows a complete and utter disdain towards those who are not seated with them on the bench and even towards three of their own colleagues.
As an aside, the fact that Amy Coney Barrett is the voice of the court right now is laughable. Does she want to sell more copies of her book — you bet! Does she provide the approachable face of the mom next door — you bet! Is she putting a
dubious spin on SCOTUS — hell yes!
You may not be fully appreciating that the conservative justices are merely completely unbiased neutral arbiters of law, doing their best to only call balls and strikes and wouldn't dream of letting their personal beliefs or biases in any way influence their decisions. Plus, they have hard jobs, and it's unfair that we expect them to explain their work, be consistent in their approach or heaven forbid, abide by a code of ethics. #Sarcasm+
We hear (and have been for years) a great deal about "calling balls and strikes". The analogy to a home-plate umpire is weak to begin with, but it simply ignores the fact that the strike zone has amorphous edges.
Some time ago someone conducted a photographic study of call strikes and balls by a number of umpires. Each umpire’s calls were generally consistent, but as a group varied. Batters, like litigators, adapted.
I think this view is generally true of the Right and has been for some time and unfortunately tends to work. Attack the messenger and disregard the facts. Here are my July 10th thoughts with some examples of attacking the messenger strategy that is commonplace today. https://open.substack.com/pub/wpag/p/is-it-me?r=5gp94g&utm_campaign=post&utm_medium=web
First, thanks for acknowledging my request for your opinion on Bluesky yesterday. I’m a proud owner of your book The Shadow Docket. You’re correct that the conservative wing of SCOTUS is gaslighting the public. Just their rulings on “non-resolved” issues tend to make all of us think they are indeed actually resolved in private, without the full period being put on the sentence. We only get an actual explanation of the opinion on shadow docket rulings when a member’s arrogance (so it seems) outweighs their judicial credibility.
No. She is inverting how things are supposed to work. This is a nonsense answer.
One quality the 6 members of the Court’s majority and their defenders seem to have in common, perhaps along with that side entire side of the aisle, is a profound lack of humility.
I realize my comment may sound simplistic. I strongly feel, at least in part, the SC is basing some of their shadow docket rulings in trumps favor because deep down they are actually afraid he will defy their orders. Then what once that is broadcast for all the world to see? They'd become irrelevant. They are more than aware it was their decision in early July last year to grant him almost full immunity. They refused to even entertain the idea of Jack Smith possibly winning a judgment against Trump. So instead a snap decision was made to protect Trump at all costs. Constitutional law be damned!
It has been suggested before that the Court may be acting out of fear of Trump, but I'd place my bet on it being due to real support for the unitary executive theory. As one example, it has often been mentioned that Chief Justice Roberts has long supported that theory, long before Donald Trump entered politics.
Yes great point. I've read about this as well. I still feel there is a touch of fear there too. ACB on Fox yesterday trying to put some legitimacy back in the court. Paraphrasing here, she says all we're really doing is making sure the rules of the law are followed. HUH? I guess it's some more of the rules for thee but not for me crap.
I agree that the only rational reason that the SC Conservative Six (SCCS) is operating in this questionable manner is likely quite simplistic. I don’t think that a concern of Trump’s possible ignoring SC findings and making the SC irrelevant is the most obvious thing that is banding the SCCS to abuse the shadow docket, although it most likely is a contributing factor. I propose that personal greed is a much better candidate. That greed might be for better freebee vacations, secret “loans”, selling more books, or even ego that history will favor their contribution to implementation of the President as “Unitary
Executive”
So if this all goes according to plan for trump, (Unitary Executive) I wonder if future history books will accurately tell what part the SC played in this monumental change? Side note, I'm keeping a journal to jot down important events each day. I'd like my grandchildren to understand some of us really did try to save it.
I think what would be especially instructive would be to read up on social dominance.
I think the dismissive attitude on the right is largely due to a perception that "I'm winning" and "we own you". As childish as that seems, I think we have to admit that the right has a huge capacity for being exactly that: childish.
From Trump's tariffs, to armed masked men delivering a sick sort of revenge, to lying and cheating it's all about dominance.
You can find it on budget priorities and healthcare policies too.
It's hard to elevate the arguments of the right when their behavior betrays damaged childhood psyches that prefer "my turn" over healing.
They are authoritarians because that is probably all they know and you can't show empathy, kindness nor decency when it's your turn "to kick some butt". It's certainly been their view on race where to feel better about oneself they require the sugar high of superiority. Life requires enemies to slay.
In the famous afterword to _Whigs and Hunters_, the radical historian E. P. Thompson defended the rule of law as an "unqualified human good." (The reference and a sympathetic discussion are given in Cole (2001) https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1401&context=facpub )
Thompson's related arguments, which I accept, are (1) that the law, although a tool of the ruling class, is not only superstructure and not only a tool of the ruling class; (2) that, to retain its legitimating function, the law also from time to time has to be just and has to restrain the otherwise arbitrary power of the ruling class.
Meanwhile -- seeing the arc from the Patriot Act through "stay-at-home" orders to Trump (2024) to the regime's current war crimes in the Caribbean and abrogation of constitutional rights in the "Homeland", mostly licensed by the courts -- I reluctantly conclude that the ruling class is winding up the rule of law and that the process is accelerating. The orders have come down from on high, on a need-to-know basis, which includes the chief justice. Thus, the Supreme Court's majority, unfortunately, does not care that it is burning up its own credibility and the legitimizing function of the rule of law as a star burns through hydrogen, next helium, and finally heavier elements on its way to nova and supernova.
Perhaps the ruling class feels too threatened by even the few remaining restraints. Perhaps its greed has got the better of its judgment. Or perhaps it has rationally decided that the productive phase of capitalism is over (not least, it enabled too many social rights) and the looting phase is in full bloom, what no amount of legitimation methods can hide. Thus, consent, which requires some adherence to the rule of law, is being replaced by fear created by shock-and-awe brought home.
"The illusion of freedom will continue as long as it’s profitable to continue the illusion. At the point where the illusion becomes too expensive to maintain, they will just take down the scenery, they will pull back the curtains, they will move the tables and chairs out of the way and you will see the brick wall at the back of the theater.” --Frank Zappa
We live in dangerous times.
A legitimate court would explain its reasoning for anything and everything that it regarded as binding. “Because I said so” is never a good enough reason for regarding any ruling as proper, but this Court seems to believe otherwise. And that is why this Court has lost its legitimacy and its defenders are left with nothing but personal attacks.
Some of the most important principles in our Constitution were addressed by Chief Justice John Marshall in 1803 in Marbury v. Madison, and every SCOTUS justice is well aware of these principles. The duty of federal judges is not merely to act like dictators by merely dictating consequences. Their duty is to teach. That's the very reason that very many SCOTUS justices over the past 100 years have re-emphasized the emphasis by Chief Justice Marshall and SCOTUS in Marbury regarding this crucial duty of all federal judges: "It is emphatically" the "duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." Judges' duty is to expressly state the governing law and explain what it means.
The reasons for such rule are crucial. As Chief Justice Marshall and SCOTUS subsequently emphasized, each “Judge” is “required to declare the law” because if he “states it erroneously, his opinion” must “be revised; and if it can have had any influence on the” judgment, it must “be set aside.” Etting v. U.S. Bank, 24 U.S. (11 Wheat.) 59, 75 (1826) (Marshall, C.J.).
As many current SCOTUS justices emphasized in Bank Markazi v. Peterson, 578 U.S. 212 (2016), “Article III of the Constitution establishe[d]” a “Judiciary” that must be “independent” of all except the law, so the judiciary was assigned the constitutional “duty to say what the [governing] law is” in “particular cases and controversies;” judges “who apply [a] rule to particular cases, must of necessity expound and interpret that rule.”
I think the MAGA Six have decided to be as obtuse and vague as possible in order to continue giving the Trump regime room to usher in the white Christian nationalism they all crave.
Judeo-Christian nationalism, to be more precise, though I suppose the "Judeo" part is implied since conservative Christians tend to focus on the Old Testament and everything in the New Testament except the Gospels.
Department of State v. AIDS Vaccine Advocacy Coalition is a striking example of the problem with these unexplained emergency docket rulings. I’m surprised it hasn’t received more attention. It involves two blatant violations of the Impoundment Control Act by the Trump administration. As Justice Kagan’s dissent points out, the administration’s main defense—that only the Comptroller General can sue to remedy such violations—contradicts the plain language and entire background of the Act. It's hard to see any possible justification for the Court's action, which not only seems wrong on the merits but condoned the administration’s bad faith tactics. Worst of all, this supposedly interim ruling effectively mooted the case by allowing the administration to unilaterally cancel billions of dollars appropriated by Congress.
The old saying is, “You take your stand from where you sit.” Many of these justices have been sitting in places of privilege their entire lives; and those who haven’t have either been sitting too long on their cushy court seats or are the “new kids” who want to be accepted into the club. And this club doesn’t have any rules of conscience or consequences that they care about, so why should they have to explain themselves? What’s in it for them?