Where The Judicial Rubber Meets The Road

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There are rough seas ahead for the John Roberts led Supreme Court, with no safe harbor in sight. Over the next 6-12 months, there are quite likely three critical issues that will be thrust in a national spotlight to their chamber by The Pampers President, issues that the court would rather chew off a paw than have to decide. And the machinations and words of Trump himself will make these issues even harder for the court to navigate and decide.

The three issues are self inflicted gunshot wounds, with Trump pulling the trigger. The first is the constitutionality of the Affordable Care Act. This ruling should have been a no brainer for the court, since most knowledgeable observers say that the lower court judge ran himself through a sausage grinder to create the logic for the ruling, and it is highly likely to be overturned on appeal. But Trump’s decision to have his DOJ drop their defense of the law makes it a case where the plaintiffs will appear to have the unstated but benevolent blessings of the Trump DOJ  The second bone of contention is going to be the release to the Judiciary committee of Trump’s tax returns. This shouldn’t even have to reach the court, since the law is crystal clear, but Trump is going to force the issue to protect his felonious secrets. The third is redactions and release of grand jury information in the Mueller report, and again, previous precedent shows that this issue shouldn’t even have to be decided, vut Trump again needs to shield as much damaging information gleaned in the investigation from becoming public as possible.

But despite the unforced errors of the court having to decide cases that it shouldn’t even need to be involved in, it is the dynamic of the composition of the court that is going to lead to the intense scrutiny of every word that is uttered, and the microscopic dissection of each decision, especialy the makeup of the majority vote. The reason is the actual roster of the current court, specifically the latest two members, and this is a situation in which Trump is only partially responsible.

First, the one for which trump holds sole responsibility. Brett Kavanaugh has failed miserably in the task that The $1 Store Caligula put before him. Kavanaugh was supposed to replace the questionable swing vote of Anthony Kennedy with a reliably conservative 5th vote. Vut due to Kavanaugh’s reprehensible personal behavior, the 99 car freeway pile up of his confirmation process, and Trump’s own clearly partisan words and expectations for Kavanaugh, instead of providing a reliable 5th conservative vote on the court, kavanaugh has forced Roberts himself into the uncomfortable position of having to be the critical 5th “swing” vote. Roberts has already had to side with the liberals on the court in at least two decisions, rather than risk having his legacy tarnished by Kavanaugh’s obvious partisan role, and he has likely declined to take up another couple of cases that he would have liked to hear, if not for fear of the outcome being referred to as a “Kavaqnaugh tie breaker.” It is quite likely that in at least some, if not all of the upcoming decisions, Roberts may again be forced to vote against his natural inclination, if only to preserve the perception of the fairness of the outcomes.

Now for the one in which Trump is only partially responsible. Say what you will about his judicial philosophy, Justice Neil Gorsuch was never a particularly controversial pick. He’s the kind of nominee that a President Rubio, or a President Jeb Bush could have come up with. The only controversy around Neil Gorsuch was that he was supposed to be a replacement for Anthony Kennedy, and not Antonin Scalia. Trump was not the motivating factor in this nomination, instead he was the ultimate beneficiary of Mitch McConnell’s Machiavellian dick move. But Gorsuch is still Trump’s pick, and will likely be viewed as a “Trump friendly vote,” whether he deserves that cattle brand or not.

Oddly enough, Neil Gorsuch is actually a wild card in these cases. Due to the fact that Gorsuch was already on the Federalist Society “approved” list, and not a last minute, card carrying Trombie addition, he is free from the stigma that the spineless, toadying Kavanaugh rightfully carries. The righteous indignation over Gorsuch’s nomination notwithstanding, Gorsuch’s confirmation hearing flew largely under the radar, and Trump has seldom mentioned him since his confirmation. As such, Gorsuch is much freer to stick to his original conservative judicial views, and vote his conscience. It would not surprise me if in at least one of these cases, Gorsuch takes the load off of
Roberts back, takes one for the team, and crosses over to provide the decisive 5th vote against Trump.

But even if Trump never utters another word, and good luck with that one, the words he has already spoken will haunt the Roberts court on every case. Prior to each oral argument, you’ll hear Trump’s moronic, childish, singsong voice saying, “We’ll get sued in federal court, and we’ll lose. Then we’ll go to the 9th circuit court where we’ll get another terrible ruling and lose. Then we’ll go to another court and lose. Then we’ll go to the Supreme Court, where hopefully we’ll get a fair shake, and we’ll win.” Supreme Court Justices are not sequestered during oral arguments or their deliberations. They are going to be acutely aware of the of the back and forth in the media over these cases, as well as the speculation about their likely decision and their motivations. This will only serve to put more pressure on John Roberts to balance the historical perception of his courts legacy against what may be his personal preference in his vote. All thanks to Brett kavanaugh and a loud mouthed poltroon in an Armani suit.

This is gong to be a critical and historic year for not only the Supreme Court, but for the structural foundation of how our democracy will proceed going forward. It is going to be interesting to see how all of these cases shake out through the process. But make no mistake, behind the scenes, each of these decisions, and the mechanics that lead to their outcome, will be as twisted as any episode of Melrose Palce. Don’t touch that dial.

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3 Comments on "Where The Judicial Rubber Meets The Road"

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rory darjiit
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I will watch with cautious optimism. Go get ’em, RBG.

underwriter505
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“As such, Gorsuch is much freer to stick to his original conservative judicial views, and vote his conscience. It would not surprise me if in at least one of these cases, Gorsuch takes the load off of Roberts back, takes one for the team, and crosses over to provide the decisive 5th vote against Trump.” He’s kind of done that once. It was a case regarding Native American affairs, and he voted for the Native Americans on the basis that the current regime was trying to stretch the meaning of a treaty. It shocked the bejeezus out of me, but… Read more »