The Supreme Court v. Donald Trump?

An Analysis and a Speculation

Outrage on the Right over Chief Justice Roberts and the Supreme Court is so intense that we have to ask, What was going on here? The outrage, to be sure, is tempered by the necessity of claiming that the President is not that most hated of persons, a “loser,” to be thrown into the dustbin of history, but that he actually “won”two cases in which his major claim was totally repudiated. In other words, the Court gave him a victory, but Gorsuch and Kavanagh, his own appointees, “betrayed,” him.

Uh-huh. We always thought that Sarah Huckabee Sanders was the bottom of the moral barrel, but she was actually quite brilliant at defending and redefining the indefensible. Milton couldn’t have done better on Satan’s behalf. But Kayleigh Mcenany puts her to shame. On any scale of sheer imbecilic mendacity, she’s now the all-around champion.

To return to our subject: To understand the course of events here it’s informative to look at their sequence, but we should start with the subject of abortion. Considering that all three mentioned above are good Catholic boys, what’s been happening is somewhat hopeful, but still does not bode as well for the outlook on women’s rights as we might at first glance think.

On Monday, June 29, the Court issued an unexpected 5–4 decision in June Medical Services v. Russo, striking down a Louisiana law that had deliberately made it almost impossible for a woman to procure a safe, legal abortion in the state. The Louisiana law, requiring among other impediments special licensing and admitting privileges for abortion providers, was the final outcome in a series of decisions that began in 2013 with Texas case of Whole Woman’s Health v. Hellerstedt.

In that case the Court ultimately ruled, 5–3, that the Texas law placed an “undue”burden on a woman’s constitutional right to an abortion. Justice Kennedy, later to retire and be replaced by Kavanagh, provided the decisive vote. Roberts dissented with Justice Alito, who reasoned that there were reasonable excuses for the Texas law’s various provisions.

But now, in Russo, a Federal Appeals Court had upheld the Louisiana law on the grounds that it was sufficiently different from the Texas Case. At which point Roberts reversed himself and cast the decisive vote to overturn the Louisiana law. Why his stunning reversal?

Not because he somehow was suddenly against making it almost impossible for women to procure abortions. No: his ground was Precedent! Stare decisis. The Texas opinion, from which he’d previously dissented, was “the law.” Wow! And the Louisiana law followed it too closely to be dissociated from it. To say that his reasoning here was disingenuous would not be unfair: especially in that that is often the case with Roberts. Gorsuch and Kavanagh are what they are; I will get to that. Roberts rarely gives the impression of tough-minded sincerity. What must have been clear to him, in the event, was that however he decided, he was going to be writing the majority opinion: and he was not prepared to do that on behalf of an obvious fabrication. As Chief Justice, and owing nothing to Trump, he will not pigeon-hole himself that easily.

To follow out this speculation further, we can consider Ramos v. Louisiana. On April 20, in a strangely divided 6–3 opinion, the Court struck down a Louisiana law (again!) that permitted non-unanimous decisions in criminal proceedings. Forty-eight years earlier a much more liberal Court had upheld a Texas law of exactly the same content. Gorsuch, in pursuit of his Constitutional originalism, wrote the majority opinion, basing it on the 6th Amendment right to a jury trial, and arguing that the Texas decision had been fractured and poorly decided; over-ruling it was therefore justifiable. Roberts, however, joined Justice Alito’s dissent, which held that both procedurally and historically the Texas decision should be allowed to stand. This continued Alito’s record, matched only by Justice Thomas, of never preventing a human or civil right from being trashed. For Roberts, no civil libertarian, the dissent cost him nothing.

The most interesting opinion in that case, though, was by Bret Kavanagh. Concurring wth the majority, he now voted to strike down a “bad” precedent: just as he’d let Susan Collins think he might not do with Roe v. Wade. Not only that, his “concurrence” was more a lecture,18 pages long, most of it spent distinguishing “good” from “bad” precedents, as though to students. Why did he bother; whom was he lecturing? I think the answer is obvious.

We have to remember that cases are not heard in any particular order, and Russo had been bouncing around in lower courts for some time. Moreover, the order in which they’re announced has nothing necessarily to do with the order in which they were decided and then announced All that is by way of speculating that the most likely audience for Kavanagh’s dissent was Roberts, that he already knew what Roberts was going to do, and his lecture had the primary purpose not so much of dissuading Roberts, but of slapping him in the face for his evident inconsistency. And that Justice Roberts, engaging in exactly the kind of reasoning tht Kavanagh had inferentially criticized in Ramos, was returning the compliment. In short, we can’t know who knew first what the other was going to do–but knives were out.

But now then, to conclude with more current events, what are Roberts and Gorsuch up to? It’s true that Trump has about the same understanding of Constitutional Law as the average field mouse, but it’s not unreasonable for him to be wondering, What the hell is happening? What is wrong with Roberts and Gorsuch?

To start with Justice Gorsuch, good Federalist Society alumnus that he is, and again leaving abortion rights aside, he has broken with Mr. Trump several times in recent weeks. He wrote the majority opinion in Bostock v. Clayton County, Georgia last month, establishing that federal civil rights law bars workplace discrimination against L.G.B.T. workers; and he wrote another majority opinion released on Thursday, (McGirt v. Oklahoma) ruling that much of eastern Oklahoma falls within an Indian reservation. Roberts and Kavanagh both dissented, as good Federalists might; individual or group rights are no concern of theirs. Both of these decisions outraged the President.

And finally, of course, came the clincher yesterday: Two 7–2 decisions, in Trump v. Mazars and Trump v. Vance, each case coming to the same historic conclusion though with different immediate results, to the effect that the President is not above the law, as Trumps’ counsel had asserted he was. Period. Written by Roberts, who actually laid out a set of ground-rules for the House Committee to follow if it wanted to gain the Court’s assent to its subpoena of the President. And now with agreement from Gorsuch and even Kavanagh, whose own concurring opinion seemed to say to the President’s lawyer, “You’ve got to be kidding.”

What then are we to conclude from this sequence of events. My own conclusion is this: Roberts and Gorsuch, leaving Kavanagh aside, are not suddenly becoming liberals, and you can’t rely on either of them in upcoming abortion cases. But, and this is a big but: they have had it with Trump. He may be on and of the Right, but he’s everything they learned to distrust in the Federalist Society. An unashamed enemy of judicial independence: not to mention of them personally. A fake man of the people. A real man of the people would be bad enough; a fake is intolerable. He cannot count on their tolerance in any further test; even Kavanagh’s support is now dubious. He has to decide whether to cancel the election somehow, or steal it by force of arms. A rerun of Gore v. Bush will not be available.

They are still good Republicans, and as voting rights cases continue to press forward from Red states, all three have a record of pure partisanship; though even that seemed to be changing this past week in decisions on what voting rights attacks to let stand, and on whose behalf. Wisconsin Republicans, e.g., got a win but also a loss. Plus there are sixteen anti-abortion laws wending their way upward from various states, and the first one that is at all deviant from the Texas and Louisiana laws, Roberts, along with Gorsuch, can now vote to uphold. With Kavanagh, of course, Susan Collins’ gift to us all; it never stops giving.

Below, I have reprinted, in conclusion, a jingle I wrote on the occasion of the Kavanagh vote, called “Susan at the Bat.”

Susan at the Bat (From Ernest Thayer)

The outlook wasn’t brilliant for the Democrats that day:
The GOP was in control as long as Trump held sway;
And so when Corker threw the towel in, and Sasse did the same
There was a look of triumph on the face of Lindsay Graham.

This was no time for surrender, there was way too much at stake,
So we hoped for Susan Collins and we hoped for Jeffrey Flake;
For without them Mitch McConnell had but forty-nine at most,
We could stop the Kavanagh express if Schumer had the votes.

“But Schumer needed Collins, and also needed Flake,
But the former was a phony and the latter was a fake,
And so if they betrayed us then indeed our hopes were toast,
For there would be no chance of Schumer counting out the votes.

“And yes, Flakey went into the tank, to no one’s great suprise,
While Susan — not the first time — shed her “Moderate” disguise;
And when the dust had lifted and we saw what had occurred,
There was Flakey eating shit and Collins giving us the bird.”

Oh somewhere in this wounded land our flag is at half-mast,
The CO2 is pouring out, the oceans rising fast;
And somewhere men are weeping and somewhere women shout:
Our hopes went down the drain when Jeff and Susan chickened out.

And finally, to paraphrase Browning on Wordsworth,

“Just for a few thousand voters you sold us,
Just for a nod from McConnell and Trump.”




Emeritus Professor of Gov’t, Smith College, Visiting Professor, The New School, Editorial Board, The Nation,

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Philip Green

Philip Green

Emeritus Professor of Gov’t, Smith College, Visiting Professor, The New School, Editorial Board, The Nation,

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