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Dispatches of alarm and hope, on politics and society, democracy and justice. Because silence is not an option. We may read and write alone, but we drive change together.
"A Zone of Lawlessness"
One year after the Supreme Court’s reckless immunity ruling, the Roberts-led supermajority has further expanded Trump’s power to violate the law
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On Friday, the Supreme Court limited the ability of lower court judges to issue nationwide injunctions against the White House’s agenda, one of the last remaining checks on Donald Trump’s growing authoritarian power. But the very next day, Chief Justice John Roberts, one of the most dangerous men in America, decried threats on judges’ work and lives.
Speaking at a judicial conference in Charlotte, NC, attended by lower court judges, Roberts called such threats “totally unacceptable,” noting, “The danger, of course, is somebody might pick up on that, and we have had, of course, serious threats of violence and murder of judges just simply for doing their work.”
Fair enough, except that Roberts did not name the man who’s principally been responsible for inciting such violence. Rather, he said that “the political people on both sides of the aisle need to keep that in mind.”
Seriously?
Recall that this is the justice who wrote the decision a year ago providing Trump near-total immunity if he returned to the nation’s highest office, a ruling for which we are paying dearly. We are suffering the consequences of a court that continues to increase the power of the executive branch—and a chief justice who schizophrenically imagines that he can both credibly urge caution toward judges and ignore his own role in contributing to violence against judges and other lawlessness by exacerbating Trump’s power.
What a time to be alive as this Supreme Court chose not to reaffirm the sacred constitutional right contained within the 14th Amendment—providing since 1868 birthright citizenship for anyone born on American soil—but instead to sharply curtail the ability of judges to limit blatantly illegal actions. On his first day in office, Trump signed an executive order seeking to limit birthright citizenship only to those who have at least one parent who is a citizen or lawful permanent resident.
As a result of that openly nativist order targeting undocumented immigrants—that was scheduled to take effect on Feb. 19—a federal court quickly determined that it was unconstitutional and froze it nationwide in response to several lawsuits. Surely, it would make sense to pause the carrying out of such an order while additional litigation and review played out.
But this Supreme Court’s six-justice supermajority ruled Friday in Trump v. CASA that a nationwide injunction was not an appropriate form of relief. Instead, they determined that those affected by Trump’s executive order would have to individually file a lawsuit or join a class action—obviously problematic for an immigrant family just trying to survive.
I’d like to share with you Justice Ketanji Brown Jackson’s dissent, which makes clear what’s at stake here. “The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,” she began. Then:
It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior. When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this. That is some solicitation. With its ruling today, the majority largely grants the Government’s wish. But, in my view, if this country is going to persist as a Nation of laws and not men, the Judiciary has no choice but to deny it.
Stated simply, what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen, courts must have the power to order everyone (including the Executive) to follow the law—full stop. To conclude otherwise is to endorse the creation of a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead.
Let’s pause for a moment. As Justice Jackson puts it, our nation’s highest court is creating “a zone of lawlessness” in which Trump has the power to act on his whims, however illegal or however much danger it causes people. Jackson continues:
The majority cannot deny that our Constitution was designed to split the powers of a monarch between the governing branches to protect the People. Nor is it debatable that the role of the Judiciary in our constitutional scheme is to ensure fidelity to law. But these core values are strangely absent from today’s decision. Focusing on inapt comparisons to impotent English tribunals, the majority ignores the Judiciary’s foundational duty to uphold the Constitution and laws of the United States. The majority’s ruling thus not only diverges from first principles, it is also profoundly dangerous, since it gives the Executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate. The very institution our founding charter charges with the duty to ensure universal adherence to the law now requires judges to shrug and turn their backs to intermittent lawlessness.
With deep disillusionment, I dissent.
Hear what she’s saying. This court, led by John Roberts, is providing this president the ability to pursue “arbitrary power,” exactly what our founders sought to free Americans from in the creation of our Constitution.
As disturbing and, as Justice Jackson put it, deeply disillusioning as this is, I do take strength in the clarity of her dissent. It names the dilemma. It names the threat. It doesn’t need to name the man who has and will abuse such unfettered power.
Tomorrow is the first anniversary of the Supreme Court’s abominable immunity ruling. In that ruling, the Roberts-led majority chiefly worried that subjecting presidents to criminal prosecution for official acts while in office would would leave them “chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.”
We are now witnessing that “bold and unhesitating action,” exacerbated by this immunity ruling. “Under our constitutional structure of separated powers,” Roberts himself wrote on behalf of the six-justice majority, “the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.”
Let me leave you with Justice Sonia Sotomayor’s dissent a year ago. It was alarming to read her deep fear about what the court was unleashing—and her insights are more alarming now as we more fully comprehend the truth of her words. “The long-term consequences of today’s decision are stark,” she asserted, adding:
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.
That list could not be more accurate: his own interests, his own political survival, his own financial gain.
Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today…The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
Justice Sotomayor’s closer: “With fear for our democracy, I dissent.”
Yes, the relationship has shifted irrevocably. Yes, we have a White House occupant who thinks he’s a king above the law. Yes, this democracy-wrecking “loaded weapon” has allowed Donald Trump to violate the law and use his official power for evil ends.
As disturbing and disillusioning as this is, keep in mind that knowledge is power. Hold dear to what our founders sought—to eradicate the arbitrary power of a cruel despot—and recognize that we the people have greater collective power. He won’t succeed if the governed refuse to be ruled by a mad wannabe king who thinks he’s living in a monarchy.
Like Justices Jackson and Sotomayor, we must dissent.
