It’s unclear whether the current Supreme Court of the United States actually understands its role in our democratic system. Whether that has something to do with the Federalist Society’s influence on the Justices or simply that they are partisan hacks is unknown. Increasingly the Court has moved away from its longstanding position as a court of final review, not only interfering in lower court litigation but also shirking its role as that court of final review in more difficult cases involving constitutional issues.
Over the last four years, the Court has interfered in the normal function of the federal judiciary in unprecedented ways and in unprecedented numbers. Steve Vladeck has documented that extraordinary number of emergency stay orders the Trump administration has asked the Court for, the majority of which the Court has granted. That number of emergency stays is more than four times more than the total number requested in the 16 years of the Bush and Obama administration combined. As Justice Sotomayor has pointed out, “A stay of a district court’s injunction is ‘extraordinary’…An applicant for a stay must meet a heavy burden of showing not only that the judgment of the lower court was erroneous on the merits, but also that the applicant will suffer irreparable injury if the judgment is not stayed pending his appeal”. Vladeck notes that these grants of stays essentially create “the law on the ground”, often without any legal rationale from the Court. Writes Vladeck, “But there are multiple recent examples…in which the Justices’ early intervention on the government’s behalf turned out to have been premature thanks to subsequent developments that rendered grants of emergency or extraordinary relief unnecessary, if not affirmatively unwarranted. Allowing months (if not years) of government policy to be shaped solely by the Justices’ unwritten, subjective predictions about how the litigation is likely to unfold is troubling at best — especially when it comes at the expense of extensive written rulings by lower court judges who are, of necessity, far closer to the facts and the parties”.
In addition, the Court has also acceded to the Trump administration’s requests to essentially appeal to the Supreme Court before the lower court’s decision has even been rendered. The prime example of such a situation was its decision to grant the writ of certiorari before judgement in the Census case before the discovery phase in the lower court had even concluded. It was the first time in 16 years that a writ of certiorari before judgement had been granted and it illustrated why its use had been so rare. As in the grants of stays, by the time the Court actually heard the case a few months later, the facts as originally presented by the Trump administration had changed dramatically. In fact, it turned out the Trump administration had been openly lying to the Court about the reasons for the Census changes.
Similarly, in a recent case involving the Trump administration’s expedited federal executions, the Court took its indulgence of the administration even farther, ruling on the merits of the case before the appeals court had rendered its decision. As Mark Joseph Stern wrote about the case, “In a stunning move, the court…issued a summary decision on the merits of the case, short-circuiting the traditional appeals process. The court directed the government to kill Higgs using the execution protocol in Indiana, where he was imprisoned. It did not explain its reasoning. What the conservative justices did in this case is beyond extraordinary. Under almost all circumstances, the Supreme Court waits for an appeals court to issue a judgment before taking action. On those rare occasions when SCOTUS lets a litigant leapfrog over the appeals court, it typically issues a ‘stay pending appeal,’ setting aside a stay while the appeals court mulls the case. Here, however, the Supreme Court simply issued a summary decision, without oral arguments or proper briefing”. The only effect of this stunning decision was to ensure that the execution could go forward before Biden became President and had the power to stop it.
The Court’s deference to the Trump administration’s requests for speedy resolutions to issues it cared about, as well as the Court’s interference in lower court cases, sits in stark and direct contrast to the substantial constitutional and separation of powers issues that it has managed to slow-walk over the last four years. The Court delayed hearing the case involving the House of Representative’s case seeking Trump’s financial records until last summer and then basically punted on the decision, saying that the House’s request was too broad and unspecific and sending the case back down to the lower court for further review, ensuring that the case would not be decided before the election.
The Court also recently punted on the Trump administration’s attempt to exclude undocumented immigrants from the census data the government provides to the states for redistricting, ruling that hearing the case would be “premature”. In the end, the Trump administration was apparently too disorganized to provide such data. But, as Justice Breyer noted in his dissent, “The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations from all three branches of Government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. The Government’s effort to remove them from the apportionment base is unlawful, and I believe this Court should say so”. Not doing so, once again leaves a seemingly simple constitutional and statutory question open for future exploitation.
The case involving the House of Representative’s subpoena of former White House counsel Don McGahn has not even made it to the Supreme Court yet, despite being filed in 2018. The end of the 116th Congress this month, combined with Trump’s election loss, may make this case moot, leaving the subpoena power of the House unresolved, as well as the threat of being able to slow-walk the case long enough to make it moot, looming out there for the future.
The lack of final resolution to McGahn’s separation of powers case is also holding up a decision on whether the House Ways and Means Committee’s suit to force the Treasury Department to turn over Trump’s tax returns. There is clear statutory language and precedent requiring the Treasury Department to turn over those tax returns, but the Trump administration has managed to stonewall that request for over a year and a half. The incoming Ways and Means Committee has announced it will continue to pursue this case and hopefully be able to finally force a decision.
Now, just yesterday, the Court has declared the two Emoluments Clause cases against Trump moot because he is no longer President. One of those cases was filed within days of Trump’s inauguration and the other less than six months later, yet, incredibly, neither case had made to even the fact-finding stage because of Trump’s appeals and the delays of the courts. The Trump administration had asked for the Supreme Court to review the lower court’s decision allowing the discovery process to being in September but the Court took no action on that review, instead waiting until Trump had left office to declare it moot. In October, the Court also refused to hear a similar case brought by 200 Democratic members of Congress claiming Trump had violated the Emoluments Clause, ruling the Democrats had no standing. The two cases dismissed yesterday were asking for injunctive relief which is, of course, not necessary now that Trump is no longer violating the Emoluments Clause. While that may make the Court’s decision yesterday technically correct, it remains a disgrace that a case filed nearly four years ago, which lower courts agreed showed clear constitutional violations, still remained unresolved until now and that extensive delay has now mooted the case entirely. It is a stain on any system that proclaims its interest is justice.
The two plaintiffs, the Attorneys General of Maryland and DC, still believe their case have created precedence for actually enforcing the Emoluments Clause. They wrote, “This landmark case is the first time a court found that these clauses could be enforced…We are proud that because of our case, a court ruled on the meaning of ‘emoluments’ for the first time in American history, finding that the Constitution prohibits federal officials from accepting almost anything of value from foreign or domestic governments. This decision will serve as precedent that will help stop anyone else from using the presidency or other federal office for personal financial gain the way that President Trump has over the past four years…Our case proves once again that in our country no one-not even the President of the United States-is above the law”. Except, of course, that the Supreme Court ordered the lower court rulings be thrown out as part of its decision that the case was moot, so there is no precedent. Except, of course, the clause is not being enforced. Instead, Trump is, in fact, walking away with an untold amount of money received from illegal gifts from foreign and domestic governments. He has shown, through his own delays and the delays granted by the courts, that he is above the law. And, because of the Court’s inaction, the groundwork has been laid for a future President, perhaps even Trump again in 2024, to do the same.
What the Court has shown over the last four years is remarkable aversion to deciding the critical constitutional questions that the criminality of the Trump administration has presented. Despite the fact that such an aversion redounded to Trump’s continual benefit, it could be viewed as some conservative version of judicial restraint. But when it is combined with the unprecedented deference granted to the Trump administration on other matters and the similarly unprecedented interference with normal lower court procedures at the Trump administration’s request, it is hard to to come to any other conclusion than rank partisanship drives for too many of the Court’s recent decisions. What’s far worse, however, is that the Court’s aversion and deference have left our democracy exposed and unprotected against another aspiring kleptocratic autocrat, be it Trump or someone else.
Originally published at https://thesoundings.com on January 26, 2021.