Supreme Court, Kafka Presiding

There are a few things one ought to realize from watching the Supreme Court over the long term.

  1. Supreme Court justices may not be of quite the same view as they appeared before they became Supreme Court justices.
  2. Supreme Court justices cannot be bought or stay bought.
  3. Supreme Court justices don’t care about being called mean names, or nice names, by the media, pundits, academics or groundlings.
  4. The only serious function of the Chief Justice of the United States is to maintain the integrity of the Supreme Court, because it’s the least dangerous branch.

All of these things are readily available to be seen in the two Trump tax return cases, Mazars and Vance. In the unanimous Mazars decision, the Court rejected the House’s absurd and cavalier subpoenas for a stunning array of Trump’s old tax returns, which would have been plastered on the front page of the New York Times the day after receipt in furtherance of politics. The House could have gotten them if they tried harder, came up with a rationale that passed the laugh test and did not, instead, rely on a claim of absolute power.

In an ironic way, it’s a lot like Trump getting his butt kicked with regularity by the courts, not because some of his schemes couldn’t be made to work, but that he did them so poorly, so incompetently, or couldn’t keep the dumbest possible words from flying out of his mouth or fingers long enough to undermine any viable argument.

New York County District Attorney Cy Vance, in contrast, got to check the W column, although his win is empty for the resistance. Even if the lower courts move at warp speed, everything clicks, and the tax returns end up in a sealed package at the door of grand jury room 3, they can’t be legally revealed under NY CPL §190.25(4)(a). They can, of course, be illegally revealed, but everyone would know who did it and that could present a problem for a district attorney.

That I called the outcomes in both cases isn’t because I’m brilliant in addition to being tall, dark and handsome, but that it wasn’t hard to do. The only thing necessary was to look at the cases without emotion blinding reason, neither hating nor loving Trump.

It’s not that I don’t understand why so many desperately want to see the tax returns. I do too, frankly, although I suspect what they’ll reveal isn’t what the Dems hope they’ll reveal. I have no expectation that there will be a line that says “Bribes from Putin” (yes, this is hyperbole, but it’s meant to cover any variation on this theme).

Rather, I expect they will show two things, that he plays shenanigans with valuing assets to reduce tax liabilities, and more importantly, that he’s neither particularly wealthy nor successful. That, I suspect, is where his ego can’t take the punch, the realization that his mediocrity will be revealed and rich people will laugh at him. The same old vulgar poseur they didn’t invite for dinner is a third-stringer on the wealth scale. In the world of the rich, he’s a nobody. And make no mistake, this is all about proving to the rich that they should have shown him more respect, as he couldn’t give a damn about what the poor think of him, as long as they vote for him.

The Supreme Court justices did their jobs as best they could. They wouldn’t be shamed by the woke op-eds and columns in the Times or Post to prove their devotion and rule the “right” way or suffer the slings and arrows of outrageous resistance. So is Linda Greenhouse going to admit she was wrong about the “conservative wing” of the Court being a bunch of partisan hacks doing Trump’s bidding while the “liberal wing” bravely fought for justice and empathy?

Are you kidding? It’s just fodder for the next wave of conspiracy.

Cornell Law Professor Josh Chafetz

Mr. Roberts, too, comes out a big winner. He gets to posture as nonpartisan — after all, he refused to grant Mr. Trump absolute immunity from subpoenas. He gets to insist that not even the president is above the law. And he even got the entire Democratic wing of the court to provide cover by joining his opinion on the congressional subpoenas. Sure, the delays defeat the entire purpose of the subpoenas, but the judges will piously intone, as they have in the past, that they don’t think about things like the electoral calendar.

He’s sneaky, that Roberts guy. How did he trick the “Democratic wing” (they’re no longer the liberal wing, because they are now under the auspices of a political party?) to turn to the dark side? After all, they have life tenure, and it’s not as if C.J. Roberts can do anything to them, so he must have tricked them. He must have, as everybody knows the Notorious RBG and the Empathetic Latina would never have sided with Trump.

“But wait,” you scream at the top of your well-exercised lungs.

“Shouldn’t Trump have to reveal his tax returns to the public?!? He said he would, that lying scumbag. It’s what any presidential candidate should do. How can the Supreme Court not make him do that???”

Of course he should. And if he refuses, or makes up some facially cockamamie lie about how he would but for being a victim of the IRS, don’t vote for him. But people did vote for him anyway, those deplorables. Whether they will again is an open question, given that the more Trump talks or twits, the less even the most ardent supporter can deny he’s a vulgar, amoral, ignoramus.

But it is not, and never was, the Supreme Court’s job to be an arm of a political party. The Court has become embroiled in lawfare, the use of the legal system to accomplish what partisans have failed to accomplish through the political system by creating a sufficient coalition to achieve their brand of tyranny, so they have turned to the Court instead to do their dirty work. But those darn justices, right? Whether you agree with them or not, and I often don’t, you have to admire the fact that the Court just plugs along and, when push comes to shove, reminds us why life tenure matters and why they aren’t worried about being invited to Linda Greenhouse’s dinner party.

8 thoughts on “Supreme Court, Kafka Presiding

  1. Richard Kopf


    Your post is very important. From where I sit, and as you implicitly prove, Chief Justice John Roberts is the only Chief Justice to match Chief Justice John Marshall.*

    All the best.


    * Joel Richard Paul’s, Without Precedent: Chief Justice John Marshall and His Times, is worth reading if one cares to understand why a Chief Justice should be both brilliant and pragmatic. These dual attributes are more rare than hens’ teeth.

      1. Richard Kopf


        On June 27, 2015, I wrote that: “Chief Justice is fast becoming my hero. He may well be the best Chief Justice since Chief Justice John Marshall.” “Angering Conservatives and Liberals, Chief Justice John Roberts Defends Steady Restraint,” Hercules and the Umpire (June 27, 2015).

        On May 11, 2016, I wrote a Fault Lines post with this header, ““Angering Conservatives and Liberals, Chief Justice John Roberts Defends Steady Restraint.” I then linked to a music video of Sade’s wonderful song, “Smooth Operator.” [Put that vid up as I love it! And it proves my point too.]

        In short, I am not a John come lately. All the best.


  2. F. Lee Billy

    Magnificent, but relevance? Roberts a smooth operator? Well, yes and no. He should resign immediately if not sooner, and Jeff Sessions take his place. Roberts is a study in inchoate anarchism par excellence.

    A legend in his own mind, and in the minds of many contemporary derelicts of the press and the so-called internet. Trust it. The man is a wolf in sheep’s clothing. Nothing more, nothing less. Like ScAlitoes, a broken clock.

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