THE SUPREMES: UNITED STATES SUPREME COURT, PRESENT AND FUTURE

The U.S. Supreme Court’s 2019-20 term has ended and the presidential election lies only about three months away. A link exists

between the Court’s work and presidential elections because nothing so symbolizes our divisive politics as control of the Court and the opportunity to shape its future.

Progressives viewed the term just completed with trepidation while conservatives had high hopes. The lineup of cases presented numerous opportunities for the conservative, Republican-appointed, majority to assert itself

on fractious issues. At the end, progressives breathed a sigh of relief and conservatives whined. One man – Chief Justice John Roberts – caused both reactions.

Chief Justice John Roberts

This is the Roberts Court

The spring of 2020 was an extraordinary time for Roberts. Besides presiding over the Trump impeachment trial, Roberts voted in

the majority in an astounding 97% of the cases the Court decided this term. Since the chief justice assigns writing the opinion in cases in which he votes in the majority, Roberts had total control of the Court’s voice. He wrote himself the decisions on the immigration case involving people brought to the United States as children that the administration might deport and the subpoena cases involving President Trump’s financial records. He strategically assigned other cases, like giving Trump appointee Neil Gorsuch the opinion in the case holding the sex discrimination provisions of the 1964 Civil Rights Act applicable to sexual orientation.

             

Roberts made clear he cares most about preserving the Court’s institutional reputation even if that overrides ideological and political interests. He sided with the Court’s liberals in a Louisiana abortion-rights case, even though he’d voted on the other side in a nearly-identical Texas case four years before. His position acknowledged the Court shouldn’t reverse a precedent so soon just because the lineup of justices changed. In the Trump subpoena cases, Roberts wrote for a 7-2 majority that no one, not even a president, is above the law.

When one justice exerts such overwhelming influence and does so in such a narrow way

on a court balanced on a knife’s edge on so many hot button issues, neither side can get comfortable. Conservatives railed about Roberts this term, claiming he abandoned the cause. One senator said he should resign. Liberals cheered his votes on immigration and abortion, but those votes rested on technical and procedural grounds, not philosophy. In subsequent cases on the same subjects with different facts or procedural circumstances, he could go the other way. 

The Future

With the election straight ahead, it’s fair to ask

where the Court goes from here. Two members of the liberal wing, Ruth Ginsburg and Steven Breyer, are over 80. The winner of the 2020 election will likely replace them. If Joe Biden

wins, his nominees wouldn’t “flip” the ideological balance. That would require the resignation or death of one of the five conservatives during Biden’s term. We can’t imagine any of them resigning and handing their seats to a Democratic president, barring a debilitating illness that made continuing in the job impossible. Of course, anyone can (1) die of a sudden, unexpected medical condition or (2) get run over by a bus. Nobody should expect either of those.

So, what would flip the Court? To make that a certainty, Democrats probably have to win the next four presidential elections. The ages of the current justices and the propensity most have for staying as long as possible while hoping a president of the same party as the president who appointed them can fill their seat, means most of the current membership of the court will remain in place 15-to-20 years or longer.

The two Trump appointees – Gorsuch and Brett Kavanaugh—are 52 and 55 respectively.

Neither will leave anytime soon. If they serve until the ages Ginsberg and Breyer are now, expect that the winner of the 2052 election would replace them.

The three other conservatives – Roberts, Samuel Alito, and Clarence Thomas – are

older, but not that old. Roberts, 65, could stay another 20 years, meaning the winner of the 2040 election might get to replace him. Thomas, the Court’s most rigid conservative, is 72 and has been the subject of retirement rumors he has denied. If Trump wins the 2020 election he might step down, but he won’t give Biden his seat if he can help it. Thomas could remain on the Court a long time, perhaps until after the 2036 election. Alito, 70, also could serve another 15 years if he wants to.

The two other liberals, Elena Kagan and Sonya Sotomayor, are 60 and 66,

respectively.  Changing the Court’s ideological makeup probably means a Democrat must win not only in 2020 but also in 2024, 2028, and 2032. That would probably assure that a Democrat replaces Kagan and Sotomayor and is positioned to replace a conservative who leaves during those years.

This analysis presumes neither party makes a “mistake” with a nominee – that no Democratic appointee lines up with the conservatives and no justice appointed by a Republican ends up voting mostly with liberals. We assume no Republican president will appoint a David Souter who so disappointed George H.W. Bush and his supporters. He, of course, also nominated Thomas, so conservatives really don’t have much reason for complaining about Bush 41.

Democrats have never made judicial appointments as important a part of their electoral calculus as Republicans. The reality of the situation with the Supremes now and in the future counsels a different approach.   

       

TRUMP GETS A CIVICS LESSON ON THE VIRUS: HE’S NOT KING

As the nation takes tentative steps toward re-opening after the coronavirus lockdowns

instituted in March, a debate has developed over both when that re-opening should occur and who can order it. President Trump has apparently backed off his initial claim of “absolute authority” in the matter. Governors and local

officials like mayors and county executives, who ordered the shutdowns in the first place will decide when and how businesses and public institutions re-open.

The issue prompted us to review the constitution’s Tenth Amendment, which reads:

The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Our Federalism

The Tenth Amendment represents one of the best examples of what constitutional scholars and lawyers call “our federalism.” Because the United States is and always has been, such a diverse place, a one size fits all government probably never would have worked. North Dakota’s needs and California’s are not the same. The founders recognized that and set up a system that gave the federal government certain responsibilities and left many others to the states.

              

Two presidents represented well the pros and cons of this division. Thomas Jefferson

(president from 1801-09) barely tolerated the idea of a federal government. He wanted the national government involved only in defense, foreign policy, a post office, a common currency, and a few other limited

functions. Theodore Roosevelt (president from 1901-09) saw things much differently. He viewed the federal government as essential in making people’s lives better through conservation measures, protective labor laws, and business regulation. The constitution, in Theodore Roosevelt’s view, served not just as a limit on government, but as a proactive part of an effectively functioning democracy. 

   

While progressive governors (Democrats and a couple of Republicans in blue states like Maryland and Massachusetts) have argued most stringently for state authority in the pandemic,  historically the shoe has been on

the other foot. Before the civil rights era, southern conservatives (they were Democrats then, but they’d be Republicans now) railed against incursions on state authority by the federal government. These governors didn’t want federal intervention that protected blacks

seeking school integration, access to public accommodations, and voting rights. They vigorously promoted the rights of the states and claimed the constitution didn’t give the federal government the authority to do those things.

Trump in White House, Photo Courtesy of Fortune.com

Now, with Trump in the White House, some conservatives, anxious about getting the economy re-started, would like nothing better than a blanket order from him

ending business lockdowns and limiting social distancing. Trump, however, appears to have now realized (1) he’s not king, and (2) taking on the power he once claimed might come with a price.

Trump’s Dilemma

Trump has never shied away from taking every bit of power he can get. His ill-advised claim that he could order the economy opened finds no support in the Tenth Amendment, or anywhere else in American law. More importantly from his perspective, if he could exercise such authority,  it might

come back and bite him if reopening the country early proves the flawed policy many epidemiologists and other medical experts predict. That might further imperil Trump‘s re-election chances.

As it stands, with the governors making the decisions, Trump gets criticized for his lack of a coordinated, effective federal response to the virus. With responsibility for closing the country – and reopening it – resting with the governors, Trump can deflect blame if things go wrong.  He apparently calculates that should the country reopen too soon and the virus roars back, the governors who made such decisions will get blamed, not him.  But, because most Republican governors are taking their cues from Trump about early openings, he still may get blamed should those decisions prove faulty.

Trump might find himself attacked for his slow, ineffective response at the outset (including bogus claims in January and February that the virus was “under control”). He can more easily deflect the blame for that than he can for a new pandemic resulting from a pre-mature reopening.

Epidemiologists and other medical professionals harbor great fear that a premature re-opening could result in re-

emergence of the virus in the fall, putting the country right back where it was in March – facing a massive challenge in its health care system and seeing a staggering number of deaths, particularly among vulnerable populations.

These experts will likely stand by their advice

that business can’t re-start until much more testing occurs and the nation employs a comprehensive system for tracking who has the virus and who has acquired immunity. That means Trump would

benefit from the deniability that will come with leaving the re-opening decision to the governors.

Trump, it turns out, needed the civics lesson

he got after standing out on that limb and falsely claiming “absolute authority.” Walking back his claim of total power might, however, have come too late. That’s what the public first heard and that’s what it may remember. The notion of being careful what you ask for might be Trump’s undoing. In the words of the great Scottish novelist, playwright, and poet, Sir Walter Scott, “Oh, what a tangled web we weave when first we practice to deceive!”  

    

THE PRESIDENT’S LIEUTENANTS

WORKING IN A SHAME FREE ZONE

It was a sad sight -- President Trump’s top aides, one by one,

shamelessly verifying his calm and stable demeanor after he stormed out of a May 22 infrastructure meeting with Democratic Congressional leaders. The spectacle made us wonder why Trump’s assistants stick with him when faced with such demeaning duty. We have no special insight into this, though all three of us formerly held formal or informal positions beside high level state political leaders. That experience provides a reference point for understanding what seems a humiliating assignment.

In considering why Trump’s top aides, many of whom strike us from afar as at least capable of rationality, remain loyal and will humiliate themselves, we offer three broad explanations. First, we suspect, some act out of self-interest; they care most about keeping their jobs. A second group may work in awe of the aura that goes with holding a White House staff job. Finally, some may have ideological reasons for their attachment to Trump and will pay any price for advancing that ideology, including serving a President who habitually lies and demands participation in, support for, and endorsement of his lies and other destructive behavior. 

Keeping the Job

We know little about the economic circumstances of Trump’s staff people. Though many of his cabinet officers are multi-millionaires, younger staff aides like news secretary

Sanders defending Trump anti-Jewish statement Mar2019

 (Click here to view ABC News video)

Sarah Huckabee Sanders often come from more modest situations. Having a White House staff job may represent a life-long ambition. For a person so motivated, even the likelihood of easily finding another job wouldn’t stop that individual from doing self-demeaning things that assure keeping the dream job.

Someone who grew up in      Republican politics, always hoping they could serve in a presidential administration, might have difficulty leaving a White House staff job, regardless of economic consequences or personal humiliation. For such a person, the question becomes, “How high do I have to jump?” We don’t know how many, or which, of Trump’s aides fall into this category, but we’re sure some must. We certainly saw such people in the political organizations in which we worked.  

The White House Aura

This idea resembles the previous one, but isn’t identical. We saw people taken by the majesty and prestige of working in a governor’s office, so we can only guess how strongly that might motivate in the White House. These people may not have even needed the job; they just wanted the ego boost they got from being around power and seeing themselves at the center of something important. 

We’re reminded of a scene in the very last episode of the award winning television series The West Wing. With the Bartlet Presidency over and a new President inaugurated, Chief of Staff C.J. Cregg walks out of the White House where she encounters a man and his young child. The man asks Cregg, played by Allison Janney, if she works at the White House. She answers, “No. No, I don’t.”  The man shakes his head in awe and says, “Must be something.” That kind of reverence undoubtedly motivates some people, allowing acceptance of even the kind of degrading experience Trump put his staff through after that infrastructure meeting.

Ideology

These people fall into two distinct groups but, conceptually, the

same thing motivates them. Eric Hoffer described them in his famous book, The True Believer.  They hold a rabid commitment to an ideological agenda and nothing else matters much. A single issue motivates some, while support for Trump’s general nationalist ideology drives others. With both groups, Trump’s behavior doesn’t matter, as long as he pushes the agenda.

All of us know people, conservative and liberal, who care so much about a given issue – or set of issues-- they’ll put up with anything

from someone who supports their position. That attitude lets evangelical Christians tolerate Trump’s sexual conduct, see, e.g., the Access Hollywood tape, in exchange for his appointment of

right wing judges they believe will curtail women’s reproductive freedom. We could list other obsessions – clipping the wings of the Environmental Protection Agency,  tax cuts, keeping immigrants out of the United States -- that might justify accepting otherwise objectionable aspects of Trump’s behavior.

Some see this as analogous to the left’s willingness to overlook Bill Clinton’s sexual transgressions and subsequent acts of perjury in the Monica Lewinsky scandal. Woodson finds the analogy applicable. Henry doesn’t, believing the harm Trump is doing to the country places his sins in a unique category. Rob also rejects the analogy, arguing Trump’s requirement that his staff publicly testify to his intelligence and calm demeanor fundamentally differs from the Clinton situation.

Whether or not Bill Clinton’s staff made a similar moral compromise as Trump’s, we recognize all three reasons we’ve offered might entice acquiescence by those in Trump’s orbit to his demands for public endorsements of his conduct. Our reasons are not mutually exclusive. One can want badly to keep one’s job while sticking around because of an ideological commitment; the aura that goes with working in the White House isn’t inconsistent with staying there for either of the other reasons. Regardless of why, Trump’s lieutenants must stand up and salute when the boss demands it, no matter how demeaning doing so appears. The current group seemingly follows his orders without shame. We all agree about one thing. The American public deserves more from its public servants.