Did Chief Justice John Roberts anticipate that a second Trump term would not merely test the outer boundaries of executive power, but push beyond the logical extremes by which the Court decided that the president, who happens to be Trump at the moment, is freed of the shackles of prosecution because we necessarily trust the person elected by the American electorate not to be a vulgar, lying, narcissistic ignoramus?
It seems unlikely that the CJ, when deciding matters such as United States v. Trump, anticipated that he might very well send out Seal Team 6 to murder his rivals. After all, that was just a ridiculous hyped up analogy to make a point, not a serious threat that the Court needed to face, needed to address. After all, that would be crazy. Who would even consider doing such a thing?
But now that the Warrior Prince, Pete Hegseth, has fired the generals and JAGs, and Senate sycophants have confirmed K$sh Patel as director of the FBI, it not only appears as a possibility, but a command that his minions would follow with a hearty “Sir, yes Sir.” Was that what CJ Roberts had in mind?
If any judge feels that necessity now, it is Chief Justice John Roberts. The legal challenges to President Trump’s constitutional crime spree are multiplying. One case, concerning the president’s purge of government watchdogs, has already reached the Supreme Court. The justices could soon take up another, weighing whether the president can end birthright citizenship for the children of immigrants. As Chief Justice Roberts no doubt knows, these battles pose one of the most profound tests his institution has ever faced — a test of its authority and the idea of equal justice under the law. The chief will have to find his fortitude.
Roberts is generally understood to be an institutionalist, the guardian of the “Least Dangerous Branch.” The generally understood means of defending the institution had been, in days past, by protecting its integrity, the only weapon the tool has in its arsenal, by doing what he could to keep the brethren clean and pure. By most accounts, Roberts has done a piss poor job of it, although to be fair, the political branches and shriekers both left and right have done their part to undermine the Court as well. Hey, it’s easier to cry “illegitimate” and “unelected hacks” than explain why decisions are legally unsound or violate stare decisis, a critical concept for the stability of a functioning society.
But then, who saw Trump 2.0 coming?
If the chief justice intended a shot across the bow, Mr. Vance remains undeterred. He and other Republicans — egged on by Elon Musk and right-wing legal theorists — continue to talk, gleefully, about defying the court. This includes the president. “He who saves his Country does not violate any Law,” Mr. Trump recently posted on social media, a nod to Napoleon, if not other dictators. A day later, he reposted the quote, proudly attaching it to a headline stating that his administration was refusing to obey a district court order unfreezing billions of dollars in federal grants.
It is possible that these threats are theater, meant to cow the justices into compliance. But it is more likely that they are not. Mr. Trump is clearly well aware that the court is unpopular and no longer commands the reverence that long protected it from attacks.
Sure, the Court might yet muster a majority to put the lid on Trump’s most egregious disregard for law and the Constitution, although some of Trump’s actions are more likely violations of norms, sound public policy and modestly intelligent governance, but not necessarily law. The law may well permit the president to do incredibly stupid things under the expectation that the public wouldn’t elect a president who would do incredibly stupid things. Well, that didn’t turn out well.
At some point, presumably, the justices will draw the line. They may allow Mr. Trump to purge parts of the federal government, but it is hard to imagine them endorsing his attempt to revoke birthright citizenship. His executive order, issued on his first day in office, is dressed up in legal language but directly contravenes the 14th Amendment, as more than one judge has pointed out. The court also seems unlikely to countenance Mr. Trump’s freeze of funds that Congress appropriated. A long line of cases, including a recent 7-2 opinion by Justice Thomas, affirms “the principle of legislative supremacy over fiscal matters.” As the administration continues, by increasingly artful means, to undermine court orders that it restart spending, the fundamental issue becomes starker and clearer. “If presidents can impound appropriated funds at any time and for any reason,” Georgetown Law’s Stephen Vladeck observes, “then there’s not much point to having a legislature.”
It would hardly be surprising to learn that Trump, who has never demonstrated a firm grasp on what the judicial branch exists to do and believes that if a president appoints you, he owns you, expects the Supreme Court to put its shiny imprimatur on his every inane impulse. This includes Trump’s endorsement of Chainsaw Musk’s slash first and burn later decimation of government personnel to save a miniscule fraction of the federal budget. Massive pain. Huge disruption. Essentially no savings, and likely a net cost when you consider revenue gathering agencies like the IRS are being cut and critical services will no longer be performed. But hey, small minds love chainsaws.
Will Chief Justice John Roberts recognize that as much as he tried, and tried, and tried, to accommodate the man Rex Tillerson called a “fucking moron,” he’s still facing an Andrew Jackson moment? Much like Mitch McConnell could have voted for impeachment when he had the chance, CJ Roberts could have drawn the line when Trump tried to steal back the election he lost. What will the Court do when his immunity decision emboldens Trump to tell Patel to round up his enemies or orders Hegseth to order Seal Team 6 to action?
Is it even possible at this point? Having given away so much already, what does Roberts still have to deny Trump his way. If SCOTUS says no, Trump refuses to comply, or pretends to comply while doing whatever he pleases. What’s left for Roberts to do now that he’s taken prosecution off and Trump owns the guys with guns?
> Is it even possible at this point?
I’m really worried that the answer is “no”.
Trump hasn’t let any other mechanism of government slow him down and I doubt he will start with SCOTUS. Those who vote against him will end up on his personal shit-list.
Is there truly any government mechanism that can forcibly and physically stop Trump? The checks and balances of our government seem to have been built on a gentleman’s agreement.
When the president breaks the law, who brings the handcuffs? Quis custodiet ipsos custodes?
Is there any doubt that Robert’s Rules of Order are “between a rock and a hard place.”? I would be happy to do the job for half-price. Then again, maybe not. It’s a thankless job indeed!
I think this issue preexisted the immunity from prosecution issue. Remember “extraordinary rendition,” embraced by both W and Obama, but lacking an apparent basis in the constitution? Both parties wanted it to be a thing, and the courts let it pass. So, before any immunity decision, the president could order the CIA to put the bag on anyone and send them to a foreign black ops site for torture and/or elimination.
Now Trump is taking advantage of the undermining of the Court, which has again been the work of extremists from both camps. However, like the leftist imbeciles before them, Trump’s supporters miss the point that the mechanisms they are creating will work for the other party too. We are being driven toward an early form of “democracy” in which the demagogues in power have no limits. This is what the checks and balances put in place by the founders were specifically designed to prevent.
While I recognize that the party representation totals make impeachment unlikely, still, defiance of SCOTUS might have some weight with literal-minded folks asking what high crime is causing all the fuss.
29 year AF JAG here. I recommend retired Air Force Major General Charlie Dunlap’s essay posted yesterday on this subject at his Lawfire website. He points out the clear statutory language establishing the independence of the respective Service Judge Advocates, separate from the politically appointed General Counsels. In addition to the announced plan to fire the services top Judge Advocates, there also are people proposing to sweep the AF JAG Corps house indiscriminately to remove even more senior JAGs without cause and to then select retired JAGs for recall to active duty for the sole purpose (as I understand it) of weeding out DEI and “woke” culture and practices. This plan is antithetical to the core beliefs in a non-partisan military, an independent JAG Corps, and performance-based evaluations and merit promotion. The purge, if implemented, would be a frontal assault on the independence of the JAG Corps, resulting in a loss of trust between Commanders and their JAGs. Commanders rely on their JAGs to give them unvarnished and non-partisan legal advice. Every replacement senior JAG, being automatically tainted by the purge, might well be be discredited by Commanders and subordinates. Morale and mission effectiveness would suffer, thereby adversely affecting our national security. A similar view from Lt Gen Mark Hertling (Ret) on the importance of non-partisanship in the uniformed services and the danger of purging senior leaders for political reasons was published Friday at The Bulwark (respecting the rule against links). If anywhere, the place for waging a fight against DEI and a “woke” culture is in the civilian, political realm, not against the uniformed officers. The President and SECDEF exercise civilian control over the military, and regardless of one’s opinion whether it was right or wrong, they have exercised their lawful authority to remove DEI policies and programs in the Department. Their orders will take time to filter down and become effective. Meanwhile, Congress has a role in protecting the independence of the service’s JAG Corps, and we should encourage it to be proactive to prevent any erosion in that independence.
Roberts made his decision in NFIB v. Sebelius, and countless other cases, where he bent to the political winds to make his liberal friends happy. Had Roberts done the right thing in Sebelius, the Census case, the DACA case, and all the other bad decisions he made, Trump may very well not be here. Roberts tried and tried and made bad decision after bad decision. He made his bed, and now he is sleeping in it. I am no particular fan of Trump but I hope Roberts is squirming.
Practically speaking this is a Thomas Alito Court, not a Roberts Court. Roberts still has several chances to find his cojones, rescue his legacy and restore the reputation of the Court, but I’m not optimistic.
As all laws are enforced soon or later you obey or are made to do so on the wrong side of a gun. Who’s holding the gun for Robert’s?