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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.
Deploying troops is a serious matter and a last resort to only be used in the most serious riots that are absolutely beyond the control of the police and state National Guard. Once a riot becomes an insurrection the insurance policies aren't required to pay due to the exclusion for acts of war. If Trump had invoked the Insurrection Act he would have drawn the ire of the people he was supposedly trying to help, which is why he didn't do it.
Local authorities across the nation ordered their police to stand down. State authorities refused to deploy the national guard. Innocent people were victimized en masse and without recourse by organized political violence with clear, bidirectional ties to both the Democratic party and to Blue Tribe institutions generally. Those few who tried to defend themselves were subjected to nakedly political prosecutions on the flimsiest of pretexts and in defiance of the facts.
Blue Tribe, both its elite leadership and its general population, accepted, endorsed and supported these crimes. They collectively encouraged and enabled rampant, lawless political violence with the explicit goal to secure political and social power for themselves and their own interests, and they coordinated overwhelming retaliation against anyone who resisted or objected. Many of the Blue commenters here did the same. One of them argued at length and quite explicitly that it was better for people like myself and my family to accept beatings at the hands of a mob rather than defend ourselves with lethal force, because criminal mob beatings were statistically less likely to kill people than lawfully justified gunfire. That's the sort of conversation that leaves an impression.
Given those circumstances, the military would have been the correct response. It would have been an entirely reasonable response in the face of far less severe violations of the peace. The government's failure to deliver the appropriate response lingers, and the debt to justice will need to be repaid at some point in the future. It manifests, here and now, in markedly reduced trust in our social institutions, and a reduced willingness to expend efforts and make sacrifices for the preservation of those institutions. Every dispute is now conducted in the knowledge that Blues, speaking generally, are the sort of people who will happily endorse our victimization without apparent limit, and think themselves virtuous in the process.
You couldn’t be more wrong. Almost everyone who was ‘victimized’ by BLM / Summer of Floyd riots voted Democrat. Red tribe suburban and exurban neighbourhoods were almost never targeted and their residents suffered minimal deterioration in QoL compared to inhabitants of big cities.
Showing these people what the logical outcome of what was previously considered harmless hippie justice reform activism actually is was a necessary and important move, even if it led to the unfortunate deterioration of some American cities. The idea that the army was necessary to control the riots is laughable. A few dozen police officers could have controlled even the absolute worst of them. It was state and municipal elected officials who were responsible for what happened.
If Trump had sent in the military to crush the riots, the violence would have been solved, the blue urban governments would have grandstanded against the racist, oppressive, anti-black hijacking of the federal government by colonialist forces in collaboration with the brutal right wing military that oppresses PoC at home and abroad, and their constituents would have loved it, even as intervention saved their cities.
Rising crime, homelessness, and lawlessness had to be blamed by blue tribe citizens on their own elected officials with no convenient scapegoats or excuses. Sending in the military would have guaranteed no negative repercussions for the justice/police/bail/etc reform movement whatsoever.
As the saying goes "could've, would've, should've". The point is they didn't.
The Insurrection Act specifically takes that into account (or Eisenhower couldn't have used it). From 10 USC 253: "the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection"
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