Court and Crisis

Supreme Court Building
Duncan Lock, Dflock [CC BY-SA 3.0 (
It’s crisis time.

Oh, I know, we’ve been living on the edge of disaster for more than two years—longer, actually. Now, though, as it did at the end of 2000, the fate of the United States as a democracy depends on the will of five people to defend it. It was the ill-conceived partisan choice by the Supreme Court of that time, in fact, that led directly to the current crisis. It confirmed the Court as a political entity and not as a protector of tradition. For all of the “originalist” claims of the justices who installed George W. Bush as president, they followed instead the philosophy that you dance with them what brought ya, a political and not a systemic or idealistic decision.

That single ruling started the ball to the current crisis rolling. The Court has not been seen as an even vaguely non-partisan, independent branch of government for a long time. But, in an ironic twist, for all of the power it showed in 2000, it has since fallen far from its status as co-equal to the Executive and the Congress. Today, a president with no understanding of or respect for the United States Constitution is, without challenge, making the Court into a tool for bringing the Congress, also, under his control.

Mitch McConnell blocked Merritt Garland’s nomination to the Court for purely partisan reasons. Garland was perfectly qualified to serve, but McConnell recognized that the court had already lost a great deal of its independence and was willing to gamble on it losing more. Perhaps he didn’t realize that his action doomed the power of Congress if someone like Trump assumed the presidency. Perhaps he did realize that but didn’t care. Perhaps he may be slick enough to have realized that American democracy has been on life support since December 18, 2000 when the Court elected Bush, and now he wanted to help pull the plug.

Trump has every reason to believe that the contemporary Supreme Court is his to order about as easily as he would a White House page. For eighteen-and-a-half years, the Court has been moving toward political impotence, its great triumph as a decider of a presidential election also being a pinnacle that could never be scaled twice: it was never going to be allowed to happen again (the politicians would see to that). In other words, by stepping in and deciding an election, the Supreme Court did what could only be done once—unless it could solidify its power to name presidents. But it could not. The necessary machinations are not those open to people in appointed positions, even if those appointments are for life.

An independent Supreme Court would likely, even without actually ruling on anything, just by being there as an implicit block, keep Trump from challenging Congress’s oversight powers. Right now, though, he feels he can challenge Congress at will, refusing to comply with its demands, confident the Court will back him, the Constitution no matter. The Court, like the Senate, belongs to him—and he knows it. Not to the Republican Party. Not to the Senators. None of them feels they can win re-election against his displeasure. And that, of course, is understood by the Court.

In the face of this, the only hope Congress may have is to start impeachment proceedings. Not to remove Trump from office (that would be impossible in the current Senate) but to directly challenge the Supreme Court when Trump refuses to comply with requests and subpoenas. To challenge the course of investigation leading to determination of “treason, bribery, or other high crimes and misdemeanors” as a basis for impeachment would be to challenge the Constitution itself. Like the House of Representatives (which seems unwilling to enter into impeachment hearings), the Supreme Court may not have the stomach for that, even though it may back Trump almost up to that point. But, given its willingness to throw aside the Constitution, willingness shown since 2000, that’s no sure thing. Trump’s picks for the Court, Neil Gorsuch and Bret Kavanaugh, were chosen as much for their willingness to look to him as for their allegiance to the Constitution, be it as a strict constructionist or anything else. That’s two of nine. He only needs three others. Of the rest, Clarence Thomas and Samuel Alito are sure to support the president. That leaves Chief Justice John Roberts as the only question mark and Trump, for all of Roberts’ assertions of judicial independence, seems confident Roberts will fold under pressure.

These five men, or perhaps only the Chief Justice, though not the same five of 2000, hold the fate of our nation in their hands, and that’s sad. Once again, it’s not the way a democracy is supposed to work.

So, yeah, once again, it’s crisis time.

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