Only three of them remain. They are women with integrity, refined intellect, a belief in human rights and a deep knowledge of the law. Now they mourn the betrayal of six colleagues on the Supreme Court who fail to respect the oaths they took to protect and preserve a 250-year-old document upon which our country was founded.
One of those women is Justice Sonia Sotomayor who recently wrote, “The Government has made clear in word and deed that it feels itself unconstrained by law…free to deport anyone anywhere without notice or an opportunity to be heard. … By rewarding lawlessness, the Court once again undermines the foundational principles of [ the Constitution].”
Another is Justice Ketanji Brown Jackson who added to Justice Sotomayor’s statement regarding the migrant crisis. “The government’s so-called ‘urgency’ about gaining this access [to due process] is the mere fact it cannot be bothered to wait for the litigation process to play out before proceeding as it wishes. Once again, this court dons its emergency responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them.”
Along with Justice Elena Kagan, these women have spoken judicial truth to power.
As blogger Thom Hartmann wrote, “The American people got a taste of authoritarianism wrapped in judicial robes” when in June the Court allowed the Trump administration to deport masses of immigrants to random countries from which there is no hope of return. “The Government made clear in word and deed that it feels itself unconstrained by law … By rewarding lawlessness, the Court again undermines [a] foundational principle.” … “The decision means that a future president with dictatorial ambitions could cite this ruling to round up political dissidents, journalists, or whistleblowers and ship them off” -- to places that feel like Hell without due process – which was the law of the land before this administration.
Shame on the Supreme Court for dealing a death blow to democracy by handing the would-be-king his crown. How are we to understand such cruelty and judicial prejudice in the Supreme Court as it destroys the rule of law, the Constitution, human rights, and the essential elements of democracy?
As all of this was happening SCOTUS limited the ability of federal judges to pause Mr. Trump’s executive orders (largely written by Stephen Miller). It considered ending birthright citizenship, which violates the 14th Amendment guarantee of such citizenship, stating that anyone born in the United States and subject to its jurisdiction is a citizen. The Court sycophants pleased the president who gleefully exclaimed that “Our country should be very proud of the Supreme Court.” This issue may be revisited in the fall.
Other SCOTUS decisions have reduced the ability of lower courts to keep the White house in check. Now everything is at stake, from shutting down Planned Parenthood to Medicaid and SNAP cuts that can’t be challenged legally while the entire judicial system breaks down. That’s how dictatorships take hold and never let go.
All of this was foreshadowed when the ACLU challenged the power of the president in the Supreme Court last year after the Court ruled that President Trump is immune from criminal liability for a set of “core” acts and decisions, including his attempt to use the Justice Department to obstruct the results of the election.
As ACLU pointed out in its argument against that ruling, SCOTUS left to the lower courts a good deal of the work required to determine which acts and decisions were or would be immune and which would not. That opened the door for the president, or others who follow, to engage in criminal acts free of accountability. The ACLU quickly cited the Constitution’s principle that no one is above the law in the United States, including the president. The Court found that when the president acts as an individual s/he is not immune, but it held that presidents have immunity for their official actions, even when undertaken for personal ends and criminal purposes.
A document called “How Do Dictators Destroy Judicial Independence,” written last year by several legal scholars, underscores how dictators consolidate power to control every facet of governance. “Dictators often target the judiciary as a key institution to manipulate. The independence of the judiciary is a cornerstone of any democratic system, serving as a check on executive power and ensuring that laws are applied fairly and impartially. Dictators see an independent judiciary as a threat and potential obstacle to their ambitions. By systematically dismantling judicial independence, they transform the courts into tools of repression, allowing them to suppress opposition, evade accountability, and entrench their rule.”
As Adam Liptak noted in a New York Times essay last month, the three women justices cited here wrote a 19-page dissent to the Court’s use of the “Emergence Docket” applied to recent Court decisions, in which they stated that, “The majority is either willfully blind to the implications of its ruling or naïve but either way the threat to our constitution’s separation of power is grave.”
The betrayals of SCOTUS with respect to the Constitution, and the future, are clear. The abandonment of fundamental rulings and rights that made this country unique is a terrible, heartbreaking blow that demands reform. Dare we hope for that reform in time to preserve our way of life?
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Elayne Clift writes from Brattleboro, VT www.elayne-clift.com