PEPPER

 

The Supreme Court as Accomplice...Again

One More Case in the Long Line of Cases Undermining Democracy and the Rule of Law

David Pepper Dec 5

 

Yesterday’s Supreme Court decision, allowing the egregious Texas gerrymander to remain in place for this election, was not a surprise.

As I wrote the other day after the lower court (a Trump appointee) struck down the map: “So, would the Roberts majority allow a map that violates it own clearly stated principles to stand—in a way that clearly benefits Trump and Republicans in the short-term? I’ve seen enough in recent years to know the answer to that question.”

 

So the answer yesterday is what I expected.

And a reminder of how hopelessly broken the Court is.

Here’s how broken: in the very same term—just months apart—it’s highly likely that the same Court majority will rule in the following, entirely inconsistent ways:

·         When a state (Louisiana) adds a single majority-minority district as a remedy to a court finding of discrimination: the Supreme Court will strike down that map as an illegal racial gerrymander.

·         But here, when a state (Texas) draws multiple majority-minority districts as a concocted ruse with the Trump DOJ in an effort to steal five Democratic seats: the Court lets it happen—and rejects a district court’s clear finding (based on a nine-day trial and pages of evidence) that that is an illegal racial gerrymander (using the exact same logic and precedent as the Louisiana case)..

·          

Of course, the feature these two wholly inconsistent rulings do share is clear: their outcomes advance Republican partisan interests (including Trump’s) at the expense of Democratic interests.

As I wrote a few months back, this is yet another example of the larger dilemma—that we have a Court playing wingman to all that Trump is doing….

The Court’s Role as Accomplice

As I wrote, if Project 2025 had had a chapter outlining the role the federal judiciary could play in putting all its dark promises into place—and allowing authoritarianism to advance quickly and broadly—here are what the key elements would be:

·         create immunity for federal officials engaging in official acts

·         make it as difficult as possible for courts and those aggrieved by illegal acts to stop them—even after they have been found to be illegal or when they are blatantly illegal

·         use rulings to create a culture where federal district court orders can be regularly ignored with incredibly slow or no repercussions whatsoever

·         create no disincentive for the government to violate court orders for as long as possible, allowing that government to accomplish its goals even after they have been ruled to be illegal (and after which, their illegal actions become far more difficult to undo)

·         refuse to rule on cases of abusive political or governmental behavior—that lock in one side’s power and make it impossible for the other side to counter—by concluding that such cases are too political for the courts to weigh in on

·         pace decision making to draw out or delay cases that protect free elections, democracy and the rule of law, but rush through cases that undermine the rule of law and democracy

·         make it more difficult to prove political corruption, while making it easier for the wealthiest to control politics and government

·         apply originalist principles and strict textualism in ways that undermine democracy and the rule of law; but ignore or defy the clear text or originalism when it would serve to uphold the rule of law

·         throw out decades of established precedent, principles or practices when that precedent or those principles served to protect rights, democracy and/or the rule of law; but cling to any precedent, no matter how obscure, that undermines rights, democracy and/or the rule of law

·         use hurdles such as standing to put brakes on cases that would protect rights, democracy and/or the rule of law, but ignore those same rules for cases that undermine rights, democracy and/or the rule of law

·         eviscerate long-standing legislation protecting democracy and the rule of law, inviting the Congress to revisit that legislation, knowing full well that the legislative process is so broken that new legislation protecting democracy will not be forthcoming

·         defer to states, “states rights” and state courts when those states are undermining democracy and rights; but ignore or override states and state courts when those states or courts are seeking to protect or support democracy and rights

·         use cases that were filed for one purpose (and which are clearly losing cases for the government) to undermine other rule of law principles along the way (this is what they did in the birthright citizenship case)

·         insist that any criticism of the courts for doing any of this undermines the rule of law:

And now we can add three more…

·         defer to lower court factual findings when they are convenient for the outcome, but run roughshod over extensive and detailed findings (after only days of consideration, in only a few paragraphs, and with no oral argument) when they are inconvenient: in this case, according to Justice Kagan’s dissent: “the majority today loses sight of its proper role. It is supposed to review the District Court’s factfinding only for clear error. But under that deferential standard, the District Court’s “plausible” (actually, quite careful) factfinding must survive. The majority can reach the result it does— overturning the District Court’s finding of racial line- drawing, even if to achieve partisan goals—only by arrogating to itself that court’s rightful function. We know better, the majority declares today. I cannot think of a reason why.”

·         apply a standard (ie. that race-based gerrymandering is illegal) strictly in cases that involve remedying discrimination, but choose not to apply it in cases of aggressive mid-decade gerrymandering that benefits Trump and his party

·         Act with great deference to a legislature when it is doing something that undermines democracy (here, the court applies “the presumption of legislative good faith” even when it’s obvious that the DOJ, Abbott and the legislature was NOT acting in good faith), but act with great skepticism of a legislature when it is doing something to advance democracy (in Shelby County, which gutted the Voting Rights Act, Scalia famously said he was more suspicious of the Voting Right Act because it had such sweeping, bipartisan support in Congress)

·          

If you had a Court doing all this at once, boy would that Court be playing a critical, consistent role in undermining democracy and the rule of law while advancing authoritarianism.

 

And if this would’ve been a Chapter spelled out in Project 2025, it arguably would’ve been the most ominous of all the chapters.

And sadly, as you look closely at the Roberts era, this continues to be the Court’s pattern—with no clearer example being yesterday’s Texas ruling.

The moment brings me back to Justice Stevens’ dissent in Bush v. Gore: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”