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Since tomorrow is the last (so far) scheduled day for releasing opinions by the Supreme Court of the United States I wanted to take some time to contrast the court's treatment of a pair of cases this term. These cases are Trump v. Anderson and Trump v. United States. The former case is the case out of Colorado about Trump's ballot eligibility. The latter case is the case out of the DC Circuit concerning Trump's claim to presidential immunity for his actions on Jan 6th 2021. I can't compare the reasoning in the opinions of the two cases (we still don't have a decision in the immunity one) but one thing I, and other court watchers, think is suggestive is the timeline of each of these cases. I link to SCOTUSBlog above because they provide a convenient timeline that I'll reproduce here.
In the case of Anderson the petition for cert was filed on January 3rd and granted on January 5th. Oral argument was scheduled for February 8th and the decision was issued March 4th. That's 61 days from petition for cert to decision, which is incredibly quick by SCOTUS standards. The nature of the case makes this understandable. After all, it's a question about whether a major party's chosen candidate can be on the ballot in one (and perhaps many) states. The decision was also unanimous which likely goes some way to explaining the short turn around from oral argument to a decision.
In the case of United States the petition for cert was filed on February 12th and granted on February 28th. Oral argument was scheduled for April 25th and we still do not have a decision yet. Note that just the time from granting cert to oral argument is almost as long (57 days) as the entirety of Anderson, from cert to decision. This also ignores the fact that the special counsel filed a motion for cert before judgment all the way back on December 11th 2023, which SCOTUS declined. This decision is also strange. Is there any decision the District of Columbia Court of Appeals could have issued that SCOTUS would not have granted cert on? This effectively added three months to the case (the appeals court issued its decision on February 6th) for what seems like little reason. There is some expectation that this case should take longer because there is likely much more dissent among the justices as to the correct outcome compared to Anderson, but this fact does not explain actions like the long wait until oral argument or declining the petition for cert before judgement. One would think the criminal trial of an ex-president who is also a candidate would be a pressing matter but the justices don't seem to think so.
I am not the first court watcher to note that that SCOTUS seems to move quickly or slowly depending on which one seems to operate more to Trump's benefit. Nearing the end of the term and with no decision yet in the immunity case makes me take a bit more conspiratorial perspective on the whole thing though. As I mentioned above tomorrow is the last scheduled day for releasing opinions and they still have opinions outstanding in 18 cases argued this term. They have been issuing opinions at a rate of 3-4 per scheduled opinion day this term so dropping 18 of them tomorrow seems unlikely. The most likely outcome is they schedule more opinion days next week and possibly the week after but it's possible they don't issue a decision in the Trump immunity case this term. There is a rather famous case where SCOTUS did not issue an opinion in the term it was argued. Instead releasing the opinion the next term, almost a full year after it was first argued.
The conspiracy angle on this is that SCOTUS doesn't issue a decision in United States v. Trump this term, instead waiting until after the November election. This ensures no action in Trump's criminal trial before the election. It also means some control over the most direct beneficiary of their decision. Perhaps if Trump wins in November we get a sweeping ruling immunizing large swatches of conduct. Perhaps if Biden wins we get a much narrower ruling immunizing a very small sphere of conduct.
I think the Justices are smart enough to understand that their authority is a product of social consensus, not anything innately derivative of their position. They understand that since Conservatives approached a solid majority on the Court Blue Tribe has pivoted to attacking the court's foundational social consensus directly with calls for court packing, smearing of justices and calls for their impeachment, and so on. They appear to be attempting to balance exercise of their power with maintenance of that power. I'm skeptical that such a balance is possible, but they've certainly pushed harder toward exercise than I expected, so I imagine we'll see.
I still do not expect the Court's foundations to survive long-term; there is no reason for Reds to continue investing faith in them if they cannot deliver, and there is no way for them to deliver without Blues killing the court. This realization undermines the social consensus foundation from the Red side, and we converge on both sides admitting more or less openly that the Court is only legitimate when it delivers their specific preferred outcomes, which is isomorphic to the court having no legitimacy at all.
The entire point of a Supreme Court is to settle tribal conflict. The court can't reliably perform that purpose now, and its ability will only further diminish over time.
Except that the blue tribe controls what legitimacy means. Once they have the court making 100% Blue decisions again, it'll be "legitimate" except for a few malcontents in the dying remains of the more radical part of Red. The bulk of Red will accept the court no matter what, because they accept the legitimacy of institutions axiomatically.
Eh, I dunno about that. There's a long history of back and forth about which party is the "defender of the Constitution" and such. They both have held that mantle at different times pretty strongly in the last even 20 years only. Sure, Democrats are playing their hand pretty strong, probably too strong, recently (junk like "democracy dies in darkness" and all that, great on paper, even true on paper, horribly mangled job in practice). Democrats cry wolf about a lot of things. But not Trump. This dude actually jokes around about suspending the Constitution which is not cool and not-so-jokingly asks about deploying troops domestically which we've only seen in living memory a few times in the 60s and once in '92 for the LA race riots. The dude doesn't even pay lip service to checks and balances and admires dictators.
Why do you care about this, and why should anyone else care about this? The Constitution is dead, and there will be no resurrection. I do not believe that it protects me or my tribe in any meaningful way, and I do not see why I should respect claims of its protection put forward by other tribes. Constitutional claims are useful when they convince other people to drop opposition to one's values or goals. There is no reason to allow them to obstruct one's own values or goals. The constitution means whatever five justices say it means, without limit; benefits are entirely derived from controlling the mechanisms of interpretation, not the document being interpreted. If you have political and social control, you don't need the Constitution, and if you lack it, the Constitution will not help you. This is how the document observably works, and knowledge that this is how it observably works is now reasonably common across the population, and will only grow increasingly common over time as the contradictions inherent to the system continue to express themselves.
Deploying troops domestically was the correct response to the Floyd riots, and the failure to do so seriously damaged what remains of our country. The riots were the culmination of Blue Tribe's long-established strategy of employing organized, lawless political violence to secure political and social power, and they succeeded to an unbelievable degree specifically because no one was willing or able to deploy the appropriate response of overwhelming lawful force on the part of the authorities. That failure made the culture war much, much worse in a way that probably cannot be fixed.
Trump is not a unique threat. He exists because a critical mass of Red Tribe has lost faith in the existing system and wishes to coordinate meanness outside it. If he is finally destroyed that critical mass will find some other avatar or method to coordinate meanness through. They will continue to do so until either they find an effective method to obtain real address of grievances, or until society suffers a fatal rupture. The later seems, admittedly, a more likely outcome, but the former should not be underestimated. The current systems which prevent redress seem to me much more fragile than they generally appear.
Some thoughtful replies to this post. I think your take is pretty interesting.
I'm hesitant to ascribe too much power to the BLM riots, though. While many perceived this as the Left flexing its practical power and control over the masses, I sort of thing it was just an over-indulged feel-good moment for people feeling a bit disempowered (a disempowered feeling being the true, root, and universal problem of our age I feel) on the left and a lot of cognitive dissonance too. So it drew in more people than expected due to those forces, but also on the flip side, I don't think it meaningfully demonstrated any actual control over the masses. Perhaps part of this lies rooted in media distortion yes, on both sides of the riots. For most participants, the talking point about peacefulness was actually true, and protest is objectively a significant and specially protected right as well as a force for change, generally and historically. Like, for a lot of people, it was like my sister's experience, where she was an impressionable and impassioned 16 year old who stood out with a sign in my very low-Black state of Oregon, in the suburbs, and... yeah that was the whole experience. Fox News did not portray this, not to a degree proportional to its reality OR its importance. Conversely, MSNBC was patently dishonest with its viewers. Ignoring the, uh, literal fucking flames, the beatings, the violence, all of this was difficult to watch. Police were defanged and demonized. Random Defund types were given megaphones. A lot of Red people were rightly feeling like they were watching some news describe an alternate reality.
Turns out all the public really wants is slightly more police, but with some accountability mechanisms that actually work, and which currently only barely exist. And guess what? BLM protests were actually, uh, fucking successful in the sense that body cam adoption rates among police officers have skyrocketed. Okay, fine. The accountability portion did not happen, not really. I still am waiting for that. It sucks. At the same time, it's clear that a lot of the numerical bigness of the BLM protests was not in fact "true believers" but fadsters. The accountability portion didn't happen because it turns out that while people vaguely want accountability, they currently don't actually want it bad enough. Possibly because most voters don't imagine themselves ever being on the wrong side of the law? Maybe we just need a few more scandals? Some police union reform? It will happen eventually.
The constitution has actual and practical meaning insofar as the well-founded and established legal protections derived therefrom provide functional and meaningful relief to abuse when seeking legal recourse. This actually accounts for many citizens, including you. Even top-end brokenness doesn't cancel out the taken-for-granted norms that are backed up by this option of last resort. Dysfunction in the Supreme Court does not in nearly any practical way diminish you and your actions, because they are not rewriting the entire body of common law that works jointly with relevant daily laws. The legal inertia of the legal system is not just massive, it is gargantuan. Of course, state-level laws are far and away the most impactful to individuals. There is likely some merit to a dedicated color-tribe to moving into an aligned state, but beyond that, no difference.
I think people confuse the lethargy of the system with inherent dysfunction. However, to throw out an ad-hoc rule of thumb, it only takes 10 years at a maximum for true and deep-seated, popular change to show up in actual law and legislatures. This is often longer than comfort. I get it. But redress is most certainly there.
You missed something. The document still has a strong guiding influence on the forms and functions alike of the use of said control. It's a well-worn groove that least-resistance rules say will often offer an underlying structure and direction to this exercise of power. In addition, there is strong legal inertia as previously discussed. In fact, the whole point of the Constitution, at its core, is that it provides a robust mechanism that can balance majority-tyranny with minority-rights while also accounting for future shifts in opinion, because some shifts are fleeting fads while others are more durable. Almost every single mechanism in the document is concerned with allowing some small amount of temporary change just in case the feeling ends up being real, while allowing for great shifts when these changes end up being persistent, and the latter is often deemed more important when the two conflict.
However! The only non-intuitive thing in the constitution is that it has a very strong allowance and permissions for State structures specifically. This is, in a way, a historical artifact of the at times greatly autonomous 13 colonies with separate charters and governance. Thus, the Senate being the way it is. Population disparities between states is the greatest foundational threat to the country and constitution, in this framing. The current national political situation almost perfectly reflects this. Personally, I'd split up the bigger states and admit them to the Union as new states, with combining states on the table as the stretch goal and totally redrawing lines as the super stretch goal, but I'm sadly not in charge :(
The problem with doing this is that this is unequivocally and permanently bad for Blue power.
Which, obviously, Blues won't like; since this will create a permanent Red Senate that can just block Blue policy goals (which will tilt the balance of power even more in the relatively-unaccountable executive direction) and has long-term ramifications about how their Tribe can exert influence going forward (since a sudden loss of territory in close proximity to the cities opens the door to massive State income and sales tax arbitrage, resource extraction is still rather lucrative in the states that have them, lawfare/process-as-punishment against Blue policies is more practical due to newly-independent police, etc.).
And sure, it's possible to create new states such that it advantages both Blue and Red, but doing that would require nonsense solutions that create city-states in flyover country (because cities are the only places that vote Blue, almost like the Blues are a purpose-built city interest faction or something). Sure, it could give the political situation a chance to stabilize if there were any other fault-lines other than "urban core" vs. "everyone else", but the economy has been hollowed out so much that I'm not convinced it's even possible (as the nation to the immediate north demonstrates: the "third way" Western left party was extraordinarily strong ~15 years ago, but is on track to disappear entirely in the next election).
Really? I’m pretty sure this is considered a Blue policy, though it might depend on the construction. Overall the Democrats usually win the popular vote but the Senate skews Red, this proposal is intended to level out the disparity between the two. Merging in particular disfavors Red, since rural states are lower population.
No, the trickiest issue is that even if we could balance the Red/Blue short term impact, it’s hard to actually draft a workable compromise because literally every state needs to individually give specific consent to border modification. Any one single state could torpedo the whole deal. There’s currently only a few places that would probably assent right away: for example Eastern Oregon has long wanted to join Idaho, and honestly they are a great fit.
I am visualizing an approach that would keep as many current state borders as-is as possible. So in practice we wouldn’t be gerrymandering cities, just slicing up bigger states into logical regions. For example California seems to be able to split in either 2 or 3, vertically stacked, without too much issue.
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A North/South/West Texas split would create three upper-end-of average states, all of which would be pretty red. You could do a state of Rio Grande, which would probably be swingy, but look like obvious gerrymandering, or a set of even more obviously gerrymandered exclaves that are solid blue states. Ditto Louisiana; the obvious split would be north/south, both of which would be small red states.
But nobody's proposing those sets of splits. The main demand for a new state is to split off eastern Oregon- again, pretty red. Likewise, Northern California has a fairly fringe but real movement to split off from California; this is a red-leaning state of Jefferson. Upstate New York has wanted to split in the past, I doubt they're going to be a blue state.
For some reason, the people who actually want to have their state split up such that they're under a different government are all republicans with democrat-controlled state governments.
Whereas the split they'd actually need to come up with would be "State of Austin" and "State of Texas", since Austin's policy goals are quite a bit more suppressed by the rest of the state than the converse [whether the policies Austin wants are right or wrong is out of scope].
Which is why I think that, if we wanted it to be perceived as fair by both sides, it'd have to be city-states made up of Blue cities in perma-Red states- as this is the reverse of the "some reason" you're hinting at (which, again, comes down to "consent of the governed is not equally geographically distributed", and both Blues and Reds have motivated reasoning for not understanding that).
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