The rack and ruin foisted on the American people by the Roberts Court goes back to Roberts' infamous Citizens United ruling in 2010. That was the decision that green-lighted vast pools of money steering politics - - so vast that mortal members of the senate and the congress bow down before it rather stand for principle. The Big Bad Baleful Bill grants Trump the freedom to bankrupt our country as he has so many companies before. And the Roberts Court has now decided to walk away from precedent and to denigrate Justice Jackson. I hope they are proud of themselves. But I, for one, am discouraged and dismayed.
Harry, you are being too nice. As Justice Sotomayor's dissent illustrates, the majority--whether it has emasculated the lower courts as badly as appears or not--has no basis for its ruling. None. Zero. Niente. As she demonstrates, the plain and obvious unconstitutionality of the birthright citizenship order should have been--must have been, had precedent been followed even minimally--the beginning and the end of the discussion. That the majority would even give the time of day to the maladministration's attempt to make the order enforceable without even considering its complete lack of constitutional basis is a scandal hardly seen in our judicial history, at least since Dred Scott (or maybe, just maybe, Bush v. Gore). Today, Andy Borowitz posted that the majority justices had unwittingly down-sized themselves out of a job. He's not far wrong.
As a retired public defender death penalty trial lawyer in the 1980s Harry Connick New Orleans era, I can vouch for the fact that the legal waters have gotten choppier with the passage of time. The onset of non-unanimous death verdicts has only emphasized the unease I have long felt that "if you are poor, black, or accused of crime, you are in trouble".
I simply do not understand the ambivalence of the recent pronouncements from On High, that, to me, verge on opaqueness beyond comprehension, let alone clarity. I subscribed to this link, even though it is a strain on my present Social Security status to ascertain what hope there may be out there for saving our democracy from ruin which started long before 2016's decision for the electorate to change course at the executive branch level.
Now that we have a moribund legislative branch to go along with a acquiescent judicial branch, we are headed for a Timothy Snyder authoritarianism result - as I understand the situation. At 83, I am in no other position except to express my amazement and hope that readers sign onto and read Snyder's postings and run, don't walk, to the nearest online bookstore and start with "On Tyranny", a 126-page, 20-chapter resume about how to deal with the situation we find ourselves in.
Note that the Court does not decide the limits of the citizenship definition found in the 14th Amendment of the Constitution. That issue is saved for another day.
Instead, the Court is solely concerned with a matter of statutory construction, the meaning of the word “equity” in the Judiciary Act of 1789. According to the Court, the meaning of the word “equity” does not permit so-called nationwide injunctions issued in the citizenship cases and many, many others in the last few years. Therefore, those injunctions are misguided and the courts are limited to giving injunctive relief solely to the parties before them, and not to everyone else in the nation who might be affected by them. Why is equitable relief is so limited? After all, what could be more equitable than treating every human being alike for the purposes of determining citizenship and not letting it vary from one judicial district to another. Well, according to the Court, it’s because there were no nationwide injunctions in 1789, not even anything analogous to them. We are limited to what equity covered in jolly old England, a place we revolted against and which had a very different form of government and set of problems.
But it’s not the Court’s absurd history worship that’s so offensive. It’s the Court’s failure to consistently understand the difference between what a word means and the objects it refers to on any given day. The Court seemingly has no problem with applying the Second Amendment to arms, such as AK 47s, that did not exist in 1791, the year of enactment. Yet “equity” can only apply to the specific actions that existed in 1789, freezing the word’s meaning to the limitations of a day more than two hundred years ago. I guess the Court cares more about murderers than being consistent. Just stupid.
Two more things. Since the Court thinks that the only people bound by litigation are the actual parties to the case, why should anyone other than the parties care what the Supreme Court says? And second, when the Democrats return to power and they will, they should legislatively overrule this opinion by amending the Judiciary Act of 1789.
So what I don’t understand is this - when the president issues an executive order that is predicated specifically on rights guaranteed by the constitution, such as birthright citizenship, then it seems to me there is already a natural class. That class is every citizen in the United States, because constitutionality applies to every person in the United States. Why would that not be the “class action“ anytime one of these orders is challenged? Harry I really hope you can clear this up because you’re one of the people that talks about the law in a way that I can understand it.
Harry, this piece is excellent, but more needs to be said. Most lawyers would agree that given the context of this ruling, many freedoms and the constitutional system itself are in jeopardy. How best to limit what this Administration will try to do with ruling. Plan for the worst. And in planning, what must be done. More analysis, suggestions, and arguments need to follow, Harry. Thanks.
This smells considerably worse than the immunity decision. It's setting the stage for the t regime smash and grab. While we all watch as the country burns to the ground.
Harry, you point out "If even half of those orders had taken effect, the country would already look unrecognizable as a constitutional democracy." Precisely. I decided to become a paid subscriber on the basis of your recognition of the cumulative impact of the court's and executive's agenda. As Trump's and Heritage Foundation's Project 2025 assault on basic structures that safeguard a free and open society 250 years in the making reaches avalanche velocity to fully understand what we are facing we need a cultural perspective in our analysis. One that makes clear that the right's agenda is regime change. The Roberts SCOTUS is no longer on the side of constitutional democracy and has moved from the constitutional conservation column where they act to protect citizens and society from tyranny to the revolution column where tyrants have free rein to help themselves and "we the people" must be content with the scraps once again.
To me, the risk in Republican moves is not the damage of individual decisions. Rather, when individual or class relief through the courts or elections are unavailable, violence is often the only option available to those out of power. We see that in failed or failing states around the world. This kind of action tends to be emotional and indiscriminate in impact. The French Revolution wound up punishing both the guilty, the innocent, and everyone in between. There are too many guns in this country to risk creating more Luigi Magione's.
There are some that might see my comment as supporting violence. It does not. A clear reading of my text shows this comes from reading history, not any hope for a dystopian future. As an old man and a pacifist, I would suffer in any dark future. I just warn that actions cause reactions. It is the wise person that looks to examples from other times and other places to extrapolate on future events. I see a negative future if the administrations actions do not change. I don't want to live in that future and urge everyone to turn aside.
Very insighful. Hits the nail on the head, once again. Thanks, Harry, for your well- reasoned, well balanced, intellegent commentary. I agree with you 100%, and share your concerns.
SCOTUS reform must be a priority when we take back Congress! Pack the court ( the current number of Justices is historically woefully inadequate to serve our current population), term limits, ethics rules...
What would keep the current fascist GOP from "pre-packing" the Court in anticipation of a future Democratic plan to do so? Their power-hunger has no limits nor any sense of tradition or fairness.
The real power is an unknown percentage of 77,000,000 Republican voters who grow the food and own guns. This percentage is cohesive enough to intimidate elected Republicans. Whatever with legal system machinations, the Trump Court is left standing a clear illegal constitutional alteration in support of authoritarianism by disallowing birth certificates as proof of citizenship.
Where is the legal firm with enough courage to represent Americans in a class action lawsuit suing the Trump administration for damages, distress and a recount of the 2024 Presidential Election?
The rack and ruin foisted on the American people by the Roberts Court goes back to Roberts' infamous Citizens United ruling in 2010. That was the decision that green-lighted vast pools of money steering politics - - so vast that mortal members of the senate and the congress bow down before it rather stand for principle. The Big Bad Baleful Bill grants Trump the freedom to bankrupt our country as he has so many companies before. And the Roberts Court has now decided to walk away from precedent and to denigrate Justice Jackson. I hope they are proud of themselves. But I, for one, am discouraged and dismayed.
Harry, you are being too nice. As Justice Sotomayor's dissent illustrates, the majority--whether it has emasculated the lower courts as badly as appears or not--has no basis for its ruling. None. Zero. Niente. As she demonstrates, the plain and obvious unconstitutionality of the birthright citizenship order should have been--must have been, had precedent been followed even minimally--the beginning and the end of the discussion. That the majority would even give the time of day to the maladministration's attempt to make the order enforceable without even considering its complete lack of constitutional basis is a scandal hardly seen in our judicial history, at least since Dred Scott (or maybe, just maybe, Bush v. Gore). Today, Andy Borowitz posted that the majority justices had unwittingly down-sized themselves out of a job. He's not far wrong.
As a retired public defender death penalty trial lawyer in the 1980s Harry Connick New Orleans era, I can vouch for the fact that the legal waters have gotten choppier with the passage of time. The onset of non-unanimous death verdicts has only emphasized the unease I have long felt that "if you are poor, black, or accused of crime, you are in trouble".
I simply do not understand the ambivalence of the recent pronouncements from On High, that, to me, verge on opaqueness beyond comprehension, let alone clarity. I subscribed to this link, even though it is a strain on my present Social Security status to ascertain what hope there may be out there for saving our democracy from ruin which started long before 2016's decision for the electorate to change course at the executive branch level.
Now that we have a moribund legislative branch to go along with a acquiescent judicial branch, we are headed for a Timothy Snyder authoritarianism result - as I understand the situation. At 83, I am in no other position except to express my amazement and hope that readers sign onto and read Snyder's postings and run, don't walk, to the nearest online bookstore and start with "On Tyranny", a 126-page, 20-chapter resume about how to deal with the situation we find ourselves in.
God help us all
Thank you for your good works, Phil, and for the wisdom you share today.
Note that the Court does not decide the limits of the citizenship definition found in the 14th Amendment of the Constitution. That issue is saved for another day.
Instead, the Court is solely concerned with a matter of statutory construction, the meaning of the word “equity” in the Judiciary Act of 1789. According to the Court, the meaning of the word “equity” does not permit so-called nationwide injunctions issued in the citizenship cases and many, many others in the last few years. Therefore, those injunctions are misguided and the courts are limited to giving injunctive relief solely to the parties before them, and not to everyone else in the nation who might be affected by them. Why is equitable relief is so limited? After all, what could be more equitable than treating every human being alike for the purposes of determining citizenship and not letting it vary from one judicial district to another. Well, according to the Court, it’s because there were no nationwide injunctions in 1789, not even anything analogous to them. We are limited to what equity covered in jolly old England, a place we revolted against and which had a very different form of government and set of problems.
But it’s not the Court’s absurd history worship that’s so offensive. It’s the Court’s failure to consistently understand the difference between what a word means and the objects it refers to on any given day. The Court seemingly has no problem with applying the Second Amendment to arms, such as AK 47s, that did not exist in 1791, the year of enactment. Yet “equity” can only apply to the specific actions that existed in 1789, freezing the word’s meaning to the limitations of a day more than two hundred years ago. I guess the Court cares more about murderers than being consistent. Just stupid.
Two more things. Since the Court thinks that the only people bound by litigation are the actual parties to the case, why should anyone other than the parties care what the Supreme Court says? And second, when the Democrats return to power and they will, they should legislatively overrule this opinion by amending the Judiciary Act of 1789.
So what I don’t understand is this - when the president issues an executive order that is predicated specifically on rights guaranteed by the constitution, such as birthright citizenship, then it seems to me there is already a natural class. That class is every citizen in the United States, because constitutionality applies to every person in the United States. Why would that not be the “class action“ anytime one of these orders is challenged? Harry I really hope you can clear this up because you’re one of the people that talks about the law in a way that I can understand it.
Spot on.
My sentiments precisely. Who is going to bell the cat?
And still there has been no action / investigation of the inappropriate and illegal gifts Thomas and Alito have accepted. Thanks for a helpful column.
Harry, this piece is excellent, but more needs to be said. Most lawyers would agree that given the context of this ruling, many freedoms and the constitutional system itself are in jeopardy. How best to limit what this Administration will try to do with ruling. Plan for the worst. And in planning, what must be done. More analysis, suggestions, and arguments need to follow, Harry. Thanks.
This smells considerably worse than the immunity decision. It's setting the stage for the t regime smash and grab. While we all watch as the country burns to the ground.
Harry, you point out "If even half of those orders had taken effect, the country would already look unrecognizable as a constitutional democracy." Precisely. I decided to become a paid subscriber on the basis of your recognition of the cumulative impact of the court's and executive's agenda. As Trump's and Heritage Foundation's Project 2025 assault on basic structures that safeguard a free and open society 250 years in the making reaches avalanche velocity to fully understand what we are facing we need a cultural perspective in our analysis. One that makes clear that the right's agenda is regime change. The Roberts SCOTUS is no longer on the side of constitutional democracy and has moved from the constitutional conservation column where they act to protect citizens and society from tyranny to the revolution column where tyrants have free rein to help themselves and "we the people" must be content with the scraps once again.
To me, the risk in Republican moves is not the damage of individual decisions. Rather, when individual or class relief through the courts or elections are unavailable, violence is often the only option available to those out of power. We see that in failed or failing states around the world. This kind of action tends to be emotional and indiscriminate in impact. The French Revolution wound up punishing both the guilty, the innocent, and everyone in between. There are too many guns in this country to risk creating more Luigi Magione's.
There are some that might see my comment as supporting violence. It does not. A clear reading of my text shows this comes from reading history, not any hope for a dystopian future. As an old man and a pacifist, I would suffer in any dark future. I just warn that actions cause reactions. It is the wise person that looks to examples from other times and other places to extrapolate on future events. I see a negative future if the administrations actions do not change. I don't want to live in that future and urge everyone to turn aside.
Very insighful. Hits the nail on the head, once again. Thanks, Harry, for your well- reasoned, well balanced, intellegent commentary. I agree with you 100%, and share your concerns.
Ugly.
Yuck, Harry .:.. 🤢
Just yuck ….
SCOTUS reform must be a priority when we take back Congress! Pack the court ( the current number of Justices is historically woefully inadequate to serve our current population), term limits, ethics rules...
What would keep the current fascist GOP from "pre-packing" the Court in anticipation of a future Democratic plan to do so? Their power-hunger has no limits nor any sense of tradition or fairness.
The real power is an unknown percentage of 77,000,000 Republican voters who grow the food and own guns. This percentage is cohesive enough to intimidate elected Republicans. Whatever with legal system machinations, the Trump Court is left standing a clear illegal constitutional alteration in support of authoritarianism by disallowing birth certificates as proof of citizenship.
Where is the legal firm with enough courage to represent Americans in a class action lawsuit suing the Trump administration for damages, distress and a recount of the 2024 Presidential Election?