Forget them the Supreme Court and the Constitution. We are on Our Own

A president assassinated, another pushed out of office, Black citizens beaten, cities burning, a war in Asia, and a rogue president.

As taken and inspired by “The Supreme Court and the Constitution were never going to save us from Donald Trump,” Vox, Ian Millhiser

A bit of Vox for you this morning. I am using bits of this VOX post. This commentary is by Ian Millhiser from earlier in March. His is good and my is rough but the idea is there.

What puzzles me is the topic. I don’t mean trump perse. I do not understand why we are being abandon by the systems in place which should just ride trump out of town. I never did imagine SCOTUS allowing a single state to disqualify a presidential candidate. It makes no sense. If he is going to be disqualified, it will be nationally. Congress does have to do it. Republicans and Democrats. And they won’t and will depend on SCOTUS to rescue them. Which it will not.

Anyway, a bit of Vox.

The first being . . . Trump securing an order from the justices by exploiting the fact that the federal judiciary ordinarily does not allow two different courts to have jurisdiction over the same case at the same time. So, when a party to a lawsuit or criminal proceeding appeals a trial court’s decision, the trial court often loses authority over that case until the appeal is resolved. A few months blown there as the most intelligent of our Justices have to ponder a paragraph or two. trump believes no one can touch him legally. Two courts have said no to him and SCOTUS claims they should ponder this.

The rest being Ian Millhiser at VOS . . .

The decision to halt Trump’s trial, however, fits within a different judicial tradition, which is no less robust and no less prominent in the Supreme Court’s history. The judiciary is a weak institution, staffed by political officials who are often reluctant to stand against popular authoritarian policies or movements. Indeed, the justices themselves often belong to those movements.

Some examples of a weak court . . .

  • This is the tradition of Korematsu v. United States (1944), where the Court stood side by side with a popular, wartime president who ordered tens of thousands of Americans sent to internment camps for the sin of having the wrong ancestors. And of Debs v. United States (1919), where the Court condemned a prominent union leader and political candidate to 10 years in prison for giving a speech opposing the draft.
  • And it is the tradition of the Civil Rights Cases (1883), where the Court, at the very moment that white supremacists were consolidating an authoritarian regime that would rule the South for generations, declared that Congress had done too much to protect Black people and that they should no longer treat freedmen as “the special favorite of the laws.”

A written Constitution and courts supposedly to enforce it are weak guarantors of a liberal democratic society. The Supreme Court of the United States does not always align itself with authoritarian policies and movements, but it does so often enough that it cannot be counted on as an ally in a conflict between constitutional democracy and something more sinister.

And the Court is particularly ineffective in standing up against figures like Trump, who enjoy broad (if not necessarily majoritarian) political support.

Constitutional rights and other legal safeguards are worthless in the face of a sufficiently powerful political movement. To which we are faced with in the form of trump and some rather nervous Republicans.

Skipping over the Roe v Wade point to get to more pertinent information from Ian Millhiser.

Do not think, however, that a right is secure because it is explicitly protected by the Constitution. Certainly, nothing in African American history supports this Pollyanna-ish assumption. And the Supreme Court’s history is riddled with cases giving the back of the hand to rights specifically enumerated in the Constitution.

The 15th Amendment, for example, was ratified in 1870, five years after Union forces defeated a separatist rebellion dedicated to the cause of slavery. It provides that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

But this amendment ceased to function the minute popular support for Reconstruction faded. Black people’s right to vote, at least in states that were determined to deny them that right, lay dormant until 1965, when Congress passed the Voting Rights Act. And in the long century between these two legal reforms, the Supreme Court often made itself complicit in white supremacy by giving its blessing to Jim Crow voter suppression.

Indeed, the Court aligned itself with Southern racists even before Reconstruction collapsed as part of a corrupt deal to install President Rutherford B. Hayes in the White House in 1877. Two years earlier, in United States v. Cruikshank (1875), the justices tossed out the criminal convictions of several members of a white supremacist mob that used guns and a cannon to kill a rival Black militia defending the right of freedmen to elect their own leaders.

Black people, the Court said in a decision that should send shivers down the spine of anyone familiar with the history of the US South, “must look to the States” to protect constitutional rights such as the right to vote or the right to peacefully assemble.

Nor is the Supreme Court’s haphazard approach to constitutional rights limited to the rights of Black people. The Constitution says quite explicitly that no one may be denied “the equal protection of the laws,” and it forbids “unreasonable searches and seizures.” That didn’t stop Korematsu from holding that American citizens could be incarcerated solely for having Japanese ancestry.

Ian concludes: “So the idea that Donald Trump, and the MAGA movement he leads, would crumble simply because there’s a law saying that his actions are forbidden was always naïve. When powerful political movements conflict, the Court honors the law maybe some of the time. And it is just as likely to align itself with an authoritarian faction as it is to choose the rule of law.

It’s not even clear that the Supreme Court is capable of standing up for the rule of law in the face of a sufficiently determined opposition.

The Court’s two most famous decisions — one its most celebrated, and one its most reviled — confirm that Hamilton was correct. The courts are weak, and it is far from clear that they can stand up to a strong political movement even when they want to.

In has the reviled one first and that being Dred Scott.

Consider Dred Scott v. Sanford (1857), the odious pro-slavery decision that declared that Black people are “beings of an inferior order” with “no rights which the white man was bound to respect.” This decision is now widely viewed by scholars as an attempt to resolve sectional tensions over slavery by handing down a sweeping, comprehensive judicial declaration of the rights (or lack thereof) of enslaved people.

And wow did the Court fail in this mission. As the historian Robert McCloskey wrote about the period following Dred Scott, “the tempest of malediction that burst over the judges seems to have stunned them; far from extinguishing the slavery controversy, they had fanned its flames and had, moreover, deeply endangered the security of the judicial arm of government.”

A nationally elected President Abraham Lincoln, a man whose commitment to abolitionism developed only gradually. His contempt for Dred Scott was apparent in his very first act as president. In his first inaugural address, Lincoln revealed his intent to openly defy the Court’s decision:

[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

And Lincoln followed through on this threat. His State Department issued a passport to a Black man, flouting the Court’s declaration that Black people cannot be citizens. More significantly, he also signed legislation banning slavery in US territories, mocking Dred Scott’s conclusion that enslaved people do not escape from bondage after entering a free territory.

No one is coming to save us from Donald Trump. We have to do it ourselves.

Not the courts, not the Constitution, and certainly not a process for choosing candidates that has not been used since the 1960s. Donald Trump will be defeated, if at all, in November at the ballot box. The only thing his opponents can do to make that happen is to vote for Joe Biden, and to encourage others to do the same. The numbers were there in 2020 and the states followed suit.

Make the gap bigger.