With the justices handing down so many significant grants of emergency relief without rationales, it's worth identifying the arguments in support of unexplained rulings—and why they fail to persuade.
How many pages were written by the minority's decent? But with 3 more judges to assist the majority they lacked time to do so? Or did they lack skills to do so?
Tweezing out the details that matter and putting them into perspective and context. I so appreciate your work trying to help us understand these insane decisions, trying to make sense out of their nonsense. But I think by now it has to be recognized that the basis of everything the fascist SCOTUS 6 do is just that: fascism based on rabid misogyny and racism. Nothing more, nothing less. There is no other intention. To give them the benefit of the doubt that any of their decisions are grounded in law and fact is just refusing to face that our highest court has been co-opted by fascists. To believe otherwise is like trying to explain the sky without admitting it’s blue.
Robert Reich has a clear-eyed piece today comparing trump’s corrupt kleptocracy of sycophants with that of Louis XIV. Reich notes, 'But flattery could go only so far. During the French Revolution, Louis XIV’s tomb was desecrated and his remains scattered.’ Not to mention, his grandson was beheaded.
By not writing even brief opinions explaining the grant of emergency relief while these cases remain pending in the Circuit Court of Appeals, SCOTUS is giving an unfair advantage to the Solicitor General who will most likely argue in the various Courts of Appeals that SCOTUS ruled that Trump had a likelihood of success on the merits. How are the Courts of Appeals to treat such arguments? Is SCOTUS giving the SG an unfair advantage by being able to make such an argument? By giving an unfair advantage are the Justices violating the Judicial Oath? These unexplained orders only further undermine the Court's legitimacy.
It seems that - much like Trump - the majority of this Roberts SC can do whatever it wants to do. But it is impossible to believe that they are ignorant of the public appearance they exhibit, which is as far as we are concerned Donald Trump and his administration can do anything that they please and no, we do not have to explain that position to you. The public is not owed an explanation but the President and this Court are owed your respect just the same. The Constitution makes them important but the rest of us not so much.
In the Dobbs decision (which overturned nearly 50 years of precedent regarding abortion rights), Justice Alito wrote, "The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach."
No matter if it's the merits docket or the emergency docket, the only way this can be truly done is by the Court "showing its work." Written explanations (opinions) are imperative for the public to be able to sufficiently evaluate the justices' reasoning. And that is especially true when considering the extraordinary factors Prof. Vladeck describes in the penultimate paragraph.
P.S. - excellent use of an excellent Godfather quote.
In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), SCOTUS correctly emphasized that the “citizenry is the final judge of the proper conduct of public business.” Alexander Hamilton similarly emphasized that “[t]he two greatest securities” that “the people” have “for the faithful exercise of any delegated power” are “the restraints” imposed by “public opinion” and the public’s “opportunity of discovering with facility and clearness [official] misconduct” to facilitate officials’ “removal from office” or “punishment.” Federalist No. 70 (https://guides.loc.gov/federalist-papers/text-61-70#s-lg-box-wrapper-25493457).
The American people should not stand (literally or figuratively) for judges who fail to justify their so-called judgments with written opinions that are sufficient to show that their decisions do not violate our Constitution. We should conduct a nation-wide sit-in for our Constitution. Americans should go to court (including SCOTUS) and literally not stand for judges who effectively fail to stand for our Constitution.
Standing for judges when they enter the courtroom is expression. It is an expression of respect for and confidence in judges as public servants and leaders in the legal profession. It is strikingly similar to rendering a salute to a superior military officer. Soldiers must salute. But the People in general are not required to salute military officers or stand for judges. As Professor Vladeck previously emphasized, one of SCOTUS's best and most relevant decisions is West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943).
It is a "fixed star in our constitutional constellation" that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." So SCOTUS emphasized that "compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." Government cannot compel people (not even attorneys) to stand for and effectively salute judges as they parade into courtrooms. It's actually absurd that this is even a practice that judges perpetuate in America.
Americans cannot be compelled to stand for judges. As emphasized by Justice Frankfurter in his concurring opinion in Pennekamp v. State of Fla., 328 U.S. 331 (1946), Americans need not and should not “play make-believe” and “assume that men in gowns are angels.” As SCOTUS emphasized in Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978), “the law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from” our “criticism” (or our Constitution) “than other persons or institutions.” Our “speech" (our expression) "cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.”
Jack, as much as I enjoyed becoming a tad more educated to our past history in regards to the various thought processes of thoughtful men you presented perfectly for this layman. It's the first paragraph above I needed to read, tis' telling for myself. I wasn't clear of your personal thoughts until that paragraph. Though I'd assumed you were on the correct side of future history. Personally, after Roe v Wade, at least 2 Justices that should have excused themselves from ruling about treasonous trump, and then to grant him (Biden as well) immunity . I'll never understand why we weren't all sounding the alarm for Biden to take his cue on the immunity clause handed to him, on Sterling Silver, no less.
It's also completely impossible for me to grasp that the trump I've studied since early 80s hasn't been imprisoned. Our children and current imprisoned crimanls are learning well, I fear.
Forgiveness is often an enemy hiding in plain site. As in, when one walks in on one's child being raped, the courts aren't necessarily one's best friend.
Every single country has the exact type of government that the people deserve to have.
I am just glad I am an atheist, if this is what these so called "Christian intellectuals" on the highest court decide what is right for the country, while every international Human rights group is aghast at the harm being wrought upon the least among us. Meanwhile the circuit court continues to frustrate Judge Boasberg's contempt proceedings in order to let the culprit proceed to the 3rd circuit court of appeals.
SCOTUS justices (like too many other judges) want people to presume that they know what they're doing and they are always (or virtually always) correct in what they do. Such judges want to be treated like some kind of nobility or priests that are above our Constitution. But our Constitution outlawed any state or federal “Title of Nobility.” U.S. Const. Art. I, §§ 9, 10. It also outlawed any federal “establishment of religion.” Amend. I. All public officials are public servants; they are representatives of the people.
As SCOTUS, itself, acknowledged in Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978), “the law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from” our “criticism” (or our Constitution) “than other persons or institutions.” Judges cannot violate their constitutional duty to say what the law is merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.”
In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice Marshall ((writing for SCOTUS) emphasized the following relevant principles. “It is emphatically” judges’ “duty” to “say what the [governing] law is” (not knowingly misrepresent or violate controlling legal authority). When applying any “rule,” judges “must” expressly “expound and interpret that rule.” “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws,” so “[o]ne of the first duties of government is to afford that protection.” Clearly, the “very essence of judicial duty” is to “decide” every matter “conformably to the constitution.”
Invoking Marbury, SCOTUS in Bank Markazi v. Peterson, 578 U.S. 212 (2016) emphasized that “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.”
In Etting v. U.S. Bank, 24 U.S. (11 Wheat.) 59 (1826) Chief Justice Marshall (writing for SCOTUS) also emphasized the reasons for such rule. 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.”
The foregoing principles were established back when judge wrote with feathers dipped in ink. Now, judges (and clerks) can much more quickly research, read, write, copy and cite controlling legal authorities. They often have the most or all of the text of such justifications already written (from prior decisions). The excuses offered by their apologists are irrelevant or even false, and they don't change the fact that judges failing to justify their so-called judgments with written opinions violates our Constitution. Judges (including SCOTUS justices) are violating our Constitution by ruling by fiat. There is nothing noble, laudable or constitutional about judges failures to justify their so-called judgments.
The Constitution, itself, emphasizes that quantity is not the dispositive factor. The first words of our Constitution emphasized that "We the People" did "ordain and establish" our "Constitution" to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity." So the first words of Article III emphasized that all "Judges, both of the supreme and inferior Courts shall" be judged by their "Behaviour." "The Judges, both of the supreme and inferior Courts, shall hold their Offices" only "during good Behaviour."
Section 2 of Article III emphasized that no "judicial Power" can "extend" any further than permitted "under this Constitution, the Laws of the United States, and Treaties." Article VI emphasized that the foregoing (not judges) "shall be the supreme Law of the Land" and all "Judges" are "bound" by "the supreme Law of the Land."
James Madison and Alexander Hamilton emphasized the point of the foregoing. Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton). Having “courts composed of judges holding their offices” only “during good behavior” is a “powerful means” for ensuring “the excellences of republican government may be retained and its imperfections lessened or avoided.” Federalist No. 9 (Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison). Only federal “judges” who “behave properly, will be secured in their places for life.” Federalist No. 79 (Hamilton).
Judges knowingly violating any provision of our Constitution--even once--clearly and irrefutably is not good behavior.
OF does a towering job, and a profound service. However, this is not 1980 and we who acknowledge the danger/destruction flaming around us can no longer arguably be called "alarmists" or "too negative". this ct has jettisoned the Constitution, to which it swore an oath, so that it can partner an overhaul of this society into a oligarch-theocrat regime, aka fascist reich, that it prefers. What legal options even remain? What options remain?
I’m very interested in the books being written at this time and about this moment. In the future these will be tomes of history. Prior to Trump 2.0, I read Roberts as walking a line with one eye on his legacy. Now it seems that he has resigned himself to being known foremost as presiding over a judicial sanction of a Fascist takeover. He seriously seems to have trained both eyes on Trump, whether to gauge which way the Executive is about to jump in order to enable him, or to keep a watch for the most effective ways to get the Executive to comply, or for some unknown reason.
Since he is no longer guarding his legacy, I wonder how he would prefer to have his Majority referred to:
The fascist Roberts Court Majority
OR
The Roberts Court’s Fascist Majority?
Maybe if an historian contacts Roberts’ staff to pose a question like that, he might rethink. I doubt it, but you never know.
It’s pretty stark when you see it in the terms many people will use to think about this era for posterity.
I see what you mean about both-sides-ism, Nancy (South 'My Homestate') and I think that's the point if not the illumination that Steve brings to us in his writings. What I see as his "repeating loud and clear that the Court's silence is NOT OK" & look for & hang onto (if not a wee bit desperately right now) is Steve's persistent focus on the tilting or balancing or even raising the equities issues in these cases.
This has got to be part of an argument somehow, someway that pushes SCOTUS to start regularly explaining itself to We, The Rest of Us.
It seems to me that most of the defenses for not writing regarding decisions made on the Emergency Docket smell like “we’re likely doing some pretty shoddy work here and don’t want to show it.”
The heart of the matter is quite clear here. Karl Marx once wrote "Principles are what you impose on the other side, so that you may maneuver more freely." The demands of power shift constantly. To pretend to principle through explanation is to impose limits on such maneuvering. The Court has no intention of so limiting its powers in this manner. The Court has repeatedly violated precedent, and will continue to do so as it jettisons its Constitutional role as a separate branch of government for its purpose as an eager partner in the transformation of American society into that envisioned by the alliance of theocrats and plutocrats that form the core of American fascism. This Court has long been the advance guard of such a transformation.
I read that in the Marx's Eighteenth Brumaire of Louis Bonaparte, International Publishers (1963) 11th printing, 1987.
The full quote, which I somewhat paraphrased goes as follows: "Only the appeal to forceless principles remained to it now, to principles that it had itself always interpreted merely as general rules, which one prescribes for others in order to be able to move all the more freely oneself." (pp. 88-9)
Can't tell you how pleased I am to have found the original! Mercifully, I had highlighted it.
I respectfully submit that the heart of the matter was addressed (repeatedly) by the people who led the people to write and ratify our Constitution. For example, in Federalist No. 81, Hamilton emphasized that we always will have good "reason to fear that the pestilential breath of faction may poison the fountains of justice." In Federalist No. 78, Hamilton emphasized, "I agree" with Montesquieu and Madison that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." Hamilton clearly erroneously and worthlessly (before any federal judge even had any opportunity to show how evil he could be) assured Americans that "liberty can have nothing to fear from the judiciary alone," but Hamilton at least readily admitted that liberty "would have every thing to fear from [the judiciary's] union with either of the other departments."
Most directly relevant to Professor Vladeck's piece, in Federalist No. 81, Hamilton emphasized exactly what it means for a court to have jurisdiction. When a court "has jurisdiction" it "takes cognizance of" each material fact "as it appears upon the record, and pronounces the law arising upon it." In fn. 3, Hamilton emphasized that the word “jurisdiction” is "composed of jus and dictio," and "juris dictio" means "a speaking and pronouncing of the law." Having jurisdiction necessarily means that the court has the constitutional duty to pronounce the law that governs under the facts that are material. If liberty has nothing to fear from the judiciary, alone, it can only be because judges are required to prove (in writing) that they supported our Constitution and they did not violate and undermine it (as too many SCOTUS justices too often do).
Thanks for that. I'll look this up when I have a moment. I am much lacking in knowledge on these early writings, it's been many years since I read them and they are well worth a careful review.
In case you'd like to know, in my experience, researching the content of The Federalist Papers is best done in electronic format. See, e.g., https://guides.loc.gov/federalist-papers/full-text. Searching for terms like "fear" "tyran," "despot," "demagog," "abus" or "usurp" helps identify statements by the people who wrote and ratified our Constitution that are strikingly relevant today. Some people like to say that the conduct of public officials today was not or could not be foreseen by the Founders. They couldn't be more wrong, and we have the writing to prove it.
Yes, that reference will help. They had plenty of bad examples to choose from, and were hardly naive about human nature or the nature of government. They were students of history, and it was clear to them, among other things, how state religion violently distorted the politics and priorities of a nation (e.g. The Thirty Year's War.)
It sounds like you might be interested in what the people who wrote and ratified our Constitution thought and did about the threat of "religion violently distort[ing] the politics and priorities of a nation." If so, other parts of the ratification discussions are much more relevant than The Federalist Papers. See, e.g., Elliot's Debates https://www.loc.gov/collections/century-of-lawmaking/articles-and-essays/continental-congress/elliots-debates/
If you search for "religio" you will find discussions or proposals regarding religious freedom (including South Carolina's proposed original draft (1787) constitution offered by Charles Pinckney in Vol. 1 ("The legislature of the United States shall pass no law on the subject of religion,")). But perhaps far more relevant, you will find discussions of the prohibition on religious tests that was included in Article VI of the original Constitution. Many people objected to that prohibition, so others defended it.
In Vol. 2, in Massachusetts, Rev. Backus said "let the history of all nations be searched" and "it will appear that the imposing of religious tests hath been the greatest engine of tyranny in the world."
In Vol. 3, in Virginia, Patrick Henry asked, "What has been more productive of mischief among mankind than religious disputes?"
In Vol. 4, in North Carolina, James Iredell (who became one of the first SCOTUS justices) was particularly emphatic: I did not expect any objection to this particular regulation, which, in my opinion, is calculated to prevent evils of the most pernicious consequences to society. Every person in the least conversant in the history of mankind, knows what dreadful mischiefs have been committed by religious persecutions. Under the color of religious tests, the utmost cruelties have been exercised. Those in power have generally considered all wisdom centred in themselves; that they alone had a right to dictate to the rest of mankind ; and that all opposition to their tenets was profane and impious. The consequence of this intolerant spirit had been that each church has in turn set itself up against every other; and persecutions and wars of the most implacable and bloody nature have taken place in every part of the world. America has set an example to mankind to think more modestly and reasonably — that a man may be of different religious sentiments from our own, without being a bad member of society. The principles of toleration, to the honor of this age, are doing away those errors and prejudices which have so long prevailed, even in the most intolerant countries.
I just recovered several of your replies from my "spam" folder. I'll continue to check there in case you've sent something else. What you are mentioning is a whole field of study. To that end I've decided, somewhat at random, to start with Bernard Bailyn's Ideological Origins of the American Revolution, it being a resource at hand.
But do you know I.F. Stone's first book (written under Isadore Feinstein) The Court Disposes (1937)? I thought of using it as the basis of an essay on our current Court, as Stone's understanding is so penetrating that it's still relevant. It wasn't hard to find a copy, and didn't cost much. Stone is a fine writer on politics, and one of my models.
How many pages were written by the minority's decent? But with 3 more judges to assist the majority they lacked time to do so? Or did they lack skills to do so?
Unsettling thought in an unsettling time: how much does the conservative majority care any more about public credibility?
Tweezing out the details that matter and putting them into perspective and context. I so appreciate your work trying to help us understand these insane decisions, trying to make sense out of their nonsense. But I think by now it has to be recognized that the basis of everything the fascist SCOTUS 6 do is just that: fascism based on rabid misogyny and racism. Nothing more, nothing less. There is no other intention. To give them the benefit of the doubt that any of their decisions are grounded in law and fact is just refusing to face that our highest court has been co-opted by fascists. To believe otherwise is like trying to explain the sky without admitting it’s blue.
Robert Reich has a clear-eyed piece today comparing trump’s corrupt kleptocracy of sycophants with that of Louis XIV. Reich notes, 'But flattery could go only so far. During the French Revolution, Louis XIV’s tomb was desecrated and his remains scattered.’ Not to mention, his grandson was beheaded.
By not writing even brief opinions explaining the grant of emergency relief while these cases remain pending in the Circuit Court of Appeals, SCOTUS is giving an unfair advantage to the Solicitor General who will most likely argue in the various Courts of Appeals that SCOTUS ruled that Trump had a likelihood of success on the merits. How are the Courts of Appeals to treat such arguments? Is SCOTUS giving the SG an unfair advantage by being able to make such an argument? By giving an unfair advantage are the Justices violating the Judicial Oath? These unexplained orders only further undermine the Court's legitimacy.
It seems that - much like Trump - the majority of this Roberts SC can do whatever it wants to do. But it is impossible to believe that they are ignorant of the public appearance they exhibit, which is as far as we are concerned Donald Trump and his administration can do anything that they please and no, we do not have to explain that position to you. The public is not owed an explanation but the President and this Court are owed your respect just the same. The Constitution makes them important but the rest of us not so much.
In the Dobbs decision (which overturned nearly 50 years of precedent regarding abortion rights), Justice Alito wrote, "The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach."
No matter if it's the merits docket or the emergency docket, the only way this can be truly done is by the Court "showing its work." Written explanations (opinions) are imperative for the public to be able to sufficiently evaluate the justices' reasoning. And that is especially true when considering the extraordinary factors Prof. Vladeck describes in the penultimate paragraph.
P.S. - excellent use of an excellent Godfather quote.
In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), SCOTUS correctly emphasized that the “citizenry is the final judge of the proper conduct of public business.” Alexander Hamilton similarly emphasized that “[t]he two greatest securities” that “the people” have “for the faithful exercise of any delegated power” are “the restraints” imposed by “public opinion” and the public’s “opportunity of discovering with facility and clearness [official] misconduct” to facilitate officials’ “removal from office” or “punishment.” Federalist No. 70 (https://guides.loc.gov/federalist-papers/text-61-70#s-lg-box-wrapper-25493457).
The American people should not stand (literally or figuratively) for judges who fail to justify their so-called judgments with written opinions that are sufficient to show that their decisions do not violate our Constitution. We should conduct a nation-wide sit-in for our Constitution. Americans should go to court (including SCOTUS) and literally not stand for judges who effectively fail to stand for our Constitution.
Standing for judges when they enter the courtroom is expression. It is an expression of respect for and confidence in judges as public servants and leaders in the legal profession. It is strikingly similar to rendering a salute to a superior military officer. Soldiers must salute. But the People in general are not required to salute military officers or stand for judges. As Professor Vladeck previously emphasized, one of SCOTUS's best and most relevant decisions is West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943).
It is a "fixed star in our constitutional constellation" that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." So SCOTUS emphasized that "compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." Government cannot compel people (not even attorneys) to stand for and effectively salute judges as they parade into courtrooms. It's actually absurd that this is even a practice that judges perpetuate in America.
Americans cannot be compelled to stand for judges. As emphasized by Justice Frankfurter in his concurring opinion in Pennekamp v. State of Fla., 328 U.S. 331 (1946), Americans need not and should not “play make-believe” and “assume that men in gowns are angels.” As SCOTUS emphasized in Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978), “the law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from” our “criticism” (or our Constitution) “than other persons or institutions.” Our “speech" (our expression) "cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.”
Jack, as much as I enjoyed becoming a tad more educated to our past history in regards to the various thought processes of thoughtful men you presented perfectly for this layman. It's the first paragraph above I needed to read, tis' telling for myself. I wasn't clear of your personal thoughts until that paragraph. Though I'd assumed you were on the correct side of future history. Personally, after Roe v Wade, at least 2 Justices that should have excused themselves from ruling about treasonous trump, and then to grant him (Biden as well) immunity . I'll never understand why we weren't all sounding the alarm for Biden to take his cue on the immunity clause handed to him, on Sterling Silver, no less.
It's also completely impossible for me to grasp that the trump I've studied since early 80s hasn't been imprisoned. Our children and current imprisoned crimanls are learning well, I fear.
Forgiveness is often an enemy hiding in plain site. As in, when one walks in on one's child being raped, the courts aren't necessarily one's best friend.
Every single country has the exact type of government that the people deserve to have.
---G. A.
I am just glad I am an atheist, if this is what these so called "Christian intellectuals" on the highest court decide what is right for the country, while every international Human rights group is aghast at the harm being wrought upon the least among us. Meanwhile the circuit court continues to frustrate Judge Boasberg's contempt proceedings in order to let the culprit proceed to the 3rd circuit court of appeals.
SCOTUS justices (like too many other judges) want people to presume that they know what they're doing and they are always (or virtually always) correct in what they do. Such judges want to be treated like some kind of nobility or priests that are above our Constitution. But our Constitution outlawed any state or federal “Title of Nobility.” U.S. Const. Art. I, §§ 9, 10. It also outlawed any federal “establishment of religion.” Amend. I. All public officials are public servants; they are representatives of the people.
As SCOTUS, itself, acknowledged in Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978), “the law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from” our “criticism” (or our Constitution) “than other persons or institutions.” Judges cannot violate their constitutional duty to say what the law is merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.”
In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice Marshall ((writing for SCOTUS) emphasized the following relevant principles. “It is emphatically” judges’ “duty” to “say what the [governing] law is” (not knowingly misrepresent or violate controlling legal authority). When applying any “rule,” judges “must” expressly “expound and interpret that rule.” “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws,” so “[o]ne of the first duties of government is to afford that protection.” Clearly, the “very essence of judicial duty” is to “decide” every matter “conformably to the constitution.”
Invoking Marbury, SCOTUS in Bank Markazi v. Peterson, 578 U.S. 212 (2016) emphasized that “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.”
In Etting v. U.S. Bank, 24 U.S. (11 Wheat.) 59 (1826) Chief Justice Marshall (writing for SCOTUS) also emphasized the reasons for such rule. 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.”
The foregoing principles were established back when judge wrote with feathers dipped in ink. Now, judges (and clerks) can much more quickly research, read, write, copy and cite controlling legal authorities. They often have the most or all of the text of such justifications already written (from prior decisions). The excuses offered by their apologists are irrelevant or even false, and they don't change the fact that judges failing to justify their so-called judgments with written opinions violates our Constitution. Judges (including SCOTUS justices) are violating our Constitution by ruling by fiat. There is nothing noble, laudable or constitutional about judges failures to justify their so-called judgments.
How many unexplained rulings does it take to become impeachable?
The Constitution, itself, emphasizes that quantity is not the dispositive factor. The first words of our Constitution emphasized that "We the People" did "ordain and establish" our "Constitution" to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity." So the first words of Article III emphasized that all "Judges, both of the supreme and inferior Courts shall" be judged by their "Behaviour." "The Judges, both of the supreme and inferior Courts, shall hold their Offices" only "during good Behaviour."
Section 2 of Article III emphasized that no "judicial Power" can "extend" any further than permitted "under this Constitution, the Laws of the United States, and Treaties." Article VI emphasized that the foregoing (not judges) "shall be the supreme Law of the Land" and all "Judges" are "bound" by "the supreme Law of the Land."
James Madison and Alexander Hamilton emphasized the point of the foregoing. Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton). Having “courts composed of judges holding their offices” only “during good behavior” is a “powerful means” for ensuring “the excellences of republican government may be retained and its imperfections lessened or avoided.” Federalist No. 9 (Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison). Only federal “judges” who “behave properly, will be secured in their places for life.” Federalist No. 79 (Hamilton).
Judges knowingly violating any provision of our Constitution--even once--clearly and irrefutably is not good behavior.
OF does a towering job, and a profound service. However, this is not 1980 and we who acknowledge the danger/destruction flaming around us can no longer arguably be called "alarmists" or "too negative". this ct has jettisoned the Constitution, to which it swore an oath, so that it can partner an overhaul of this society into a oligarch-theocrat regime, aka fascist reich, that it prefers. What legal options even remain? What options remain?
I’m very interested in the books being written at this time and about this moment. In the future these will be tomes of history. Prior to Trump 2.0, I read Roberts as walking a line with one eye on his legacy. Now it seems that he has resigned himself to being known foremost as presiding over a judicial sanction of a Fascist takeover. He seriously seems to have trained both eyes on Trump, whether to gauge which way the Executive is about to jump in order to enable him, or to keep a watch for the most effective ways to get the Executive to comply, or for some unknown reason.
Since he is no longer guarding his legacy, I wonder how he would prefer to have his Majority referred to:
The fascist Roberts Court Majority
OR
The Roberts Court’s Fascist Majority?
Maybe if an historian contacts Roberts’ staff to pose a question like that, he might rethink. I doubt it, but you never know.
It’s pretty stark when you see it in the terms many people will use to think about this era for posterity.
This post looks like both-sides-ism, though it is not intended to be. Steve, please keep repeating loud and clear that the Court's silence is NOT OK.
I see what you mean about both-sides-ism, Nancy (South 'My Homestate') and I think that's the point if not the illumination that Steve brings to us in his writings. What I see as his "repeating loud and clear that the Court's silence is NOT OK" & look for & hang onto (if not a wee bit desperately right now) is Steve's persistent focus on the tilting or balancing or even raising the equities issues in these cases.
This has got to be part of an argument somehow, someway that pushes SCOTUS to start regularly explaining itself to We, The Rest of Us.
It seems to me that most of the defenses for not writing regarding decisions made on the Emergency Docket smell like “we’re likely doing some pretty shoddy work here and don’t want to show it.”
The heart of the matter is quite clear here. Karl Marx once wrote "Principles are what you impose on the other side, so that you may maneuver more freely." The demands of power shift constantly. To pretend to principle through explanation is to impose limits on such maneuvering. The Court has no intention of so limiting its powers in this manner. The Court has repeatedly violated precedent, and will continue to do so as it jettisons its Constitutional role as a separate branch of government for its purpose as an eager partner in the transformation of American society into that envisioned by the alliance of theocrats and plutocrats that form the core of American fascism. This Court has long been the advance guard of such a transformation.
I have read and studied a good deal of Marx's writings and I don't think I've ever seen that quote. Where does it come from?
I read that in the Marx's Eighteenth Brumaire of Louis Bonaparte, International Publishers (1963) 11th printing, 1987.
The full quote, which I somewhat paraphrased goes as follows: "Only the appeal to forceless principles remained to it now, to principles that it had itself always interpreted merely as general rules, which one prescribes for others in order to be able to move all the more freely oneself." (pp. 88-9)
Can't tell you how pleased I am to have found the original! Mercifully, I had highlighted it.
I respectfully submit that the heart of the matter was addressed (repeatedly) by the people who led the people to write and ratify our Constitution. For example, in Federalist No. 81, Hamilton emphasized that we always will have good "reason to fear that the pestilential breath of faction may poison the fountains of justice." In Federalist No. 78, Hamilton emphasized, "I agree" with Montesquieu and Madison that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." Hamilton clearly erroneously and worthlessly (before any federal judge even had any opportunity to show how evil he could be) assured Americans that "liberty can have nothing to fear from the judiciary alone," but Hamilton at least readily admitted that liberty "would have every thing to fear from [the judiciary's] union with either of the other departments."
Most directly relevant to Professor Vladeck's piece, in Federalist No. 81, Hamilton emphasized exactly what it means for a court to have jurisdiction. When a court "has jurisdiction" it "takes cognizance of" each material fact "as it appears upon the record, and pronounces the law arising upon it." In fn. 3, Hamilton emphasized that the word “jurisdiction” is "composed of jus and dictio," and "juris dictio" means "a speaking and pronouncing of the law." Having jurisdiction necessarily means that the court has the constitutional duty to pronounce the law that governs under the facts that are material. If liberty has nothing to fear from the judiciary, alone, it can only be because judges are required to prove (in writing) that they supported our Constitution and they did not violate and undermine it (as too many SCOTUS justices too often do).
Thanks for that. I'll look this up when I have a moment. I am much lacking in knowledge on these early writings, it's been many years since I read them and they are well worth a careful review.
In case you'd like to know, in my experience, researching the content of The Federalist Papers is best done in electronic format. See, e.g., https://guides.loc.gov/federalist-papers/full-text. Searching for terms like "fear" "tyran," "despot," "demagog," "abus" or "usurp" helps identify statements by the people who wrote and ratified our Constitution that are strikingly relevant today. Some people like to say that the conduct of public officials today was not or could not be foreseen by the Founders. They couldn't be more wrong, and we have the writing to prove it.
Yes, that reference will help. They had plenty of bad examples to choose from, and were hardly naive about human nature or the nature of government. They were students of history, and it was clear to them, among other things, how state religion violently distorted the politics and priorities of a nation (e.g. The Thirty Year's War.)
It sounds like you might be interested in what the people who wrote and ratified our Constitution thought and did about the threat of "religion violently distort[ing] the politics and priorities of a nation." If so, other parts of the ratification discussions are much more relevant than The Federalist Papers. See, e.g., Elliot's Debates https://www.loc.gov/collections/century-of-lawmaking/articles-and-essays/continental-congress/elliots-debates/
If you search for "religio" you will find discussions or proposals regarding religious freedom (including South Carolina's proposed original draft (1787) constitution offered by Charles Pinckney in Vol. 1 ("The legislature of the United States shall pass no law on the subject of religion,")). But perhaps far more relevant, you will find discussions of the prohibition on religious tests that was included in Article VI of the original Constitution. Many people objected to that prohibition, so others defended it.
In Vol. 2, in Massachusetts, Rev. Backus said "let the history of all nations be searched" and "it will appear that the imposing of religious tests hath been the greatest engine of tyranny in the world."
In Vol. 3, in Virginia, Patrick Henry asked, "What has been more productive of mischief among mankind than religious disputes?"
In Vol. 4, in North Carolina, James Iredell (who became one of the first SCOTUS justices) was particularly emphatic: I did not expect any objection to this particular regulation, which, in my opinion, is calculated to prevent evils of the most pernicious consequences to society. Every person in the least conversant in the history of mankind, knows what dreadful mischiefs have been committed by religious persecutions. Under the color of religious tests, the utmost cruelties have been exercised. Those in power have generally considered all wisdom centred in themselves; that they alone had a right to dictate to the rest of mankind ; and that all opposition to their tenets was profane and impious. The consequence of this intolerant spirit had been that each church has in turn set itself up against every other; and persecutions and wars of the most implacable and bloody nature have taken place in every part of the world. America has set an example to mankind to think more modestly and reasonably — that a man may be of different religious sentiments from our own, without being a bad member of society. The principles of toleration, to the honor of this age, are doing away those errors and prejudices which have so long prevailed, even in the most intolerant countries.
Jack,
I just recovered several of your replies from my "spam" folder. I'll continue to check there in case you've sent something else. What you are mentioning is a whole field of study. To that end I've decided, somewhat at random, to start with Bernard Bailyn's Ideological Origins of the American Revolution, it being a resource at hand.
But do you know I.F. Stone's first book (written under Isadore Feinstein) The Court Disposes (1937)? I thought of using it as the basis of an essay on our current Court, as Stone's understanding is so penetrating that it's still relevant. It wasn't hard to find a copy, and didn't cost much. Stone is a fine writer on politics, and one of my models.
Roberts’ Pro-Project 2025 justices are spineless cowards.