A New York Times investigation (9/15/24) has given us great insight into Supreme Court Chief Justice John Roberts, who—unlike the president and the speaker of the House—enjoys a great deal of shielding from press scrutiny. The paper reported that when a flurry of cases about the January 6 attempted insurrection at the Capitol reached the court, the “chief justice responded by deploying his authority to steer rulings that benefited [former President Donald] Trump.”
The paper’s investigation drew “on details from the justices’ private memos, documentation of the proceedings and interviews with court insiders” from all partisan stripes. They spoke, reporters Jodi Kantor and Adam Liptak said, “on the condition of anonymity because deliberations are supposed to be kept secret.”
It was splashed on the cover of the Sunday print edition for good reason: The Supreme Court is a mysterious institution, and Roberts has long been thought of as a more temperate and prudent judicial conservative, a breed apart from the partisan hacks appointed by Trump. The investigation gives us some illustration of what happens behind closed doors, and drives home the point that Trump has benefited legally from the normal channels of American power, not just the followers of his MAGA cult.
‘Damaging to the comity’
The Wall Street Journal (9/15/24) called the New York Times report (9/15/24) on the Trump immunity deliberations “slanted in the way readers have come to expect from the Times.”
Roberts is probably not a happy man these days. Joining him is the Wall Street Journal, which continues to drive home the point that Supreme Court operations, for the sake of the republic, must be hidden from the public and remain a murky affair. Anyone shining the light too brightly is burning through the Constitution.
In an editorial (9/15/24), the paper said that the most “damaging to the comity at the court…are leaks about the internal discussions among the justices.” The editorial board said that an “account of the private conversation among the justices after an oral argument…is a betrayal of confidence that will affect how the justices do their work.” It speculated that this “leak bears the possible fingerprints of one or more of the justices.”
Much of the editorial is a defense of the conservative justices in the Trump cases, as is the paper’s partisan lean. But it goes further, saying that the “intent” of the Times investigation “is clearly to tarnish the court as political, and hit the chief in particular.” It went on:
The story in the Times is part of a larger progressive political campaign to damage the credibility of the court to justify Democratic legislation that will destroy its independence. That this campaign may have picked up allies inside the court is all the more worrying. We are at a dangerous juncture in American constitutional history, and Mr. Trump isn’t the only, or the greatest, risk.
In the rest of the Murdoch-owned press, the New York Post editorial board (9/16/24) republished snippets of the Journal editorial and Fox News (9/16/24) also bashed the leaks.
‘Malice aforethought’
For Alan Dershowitz (Wall Street Journal, 10/30/22), the public doesn’t have a right to know that their reproductive rights are about to be taken away, but they do have a right to know who would dare inform them of such a thing.
A news article painting the Supreme Court as a politicized part of government in 2024 is a little like a scientific inquiry into whether water is wet (CounterSpin, 5/19/23), and it’s easy to disregard the Journal’s anger at the Times as a mixture of partisan feuding and journalistic envy.
But something else is at work: The Journal has a track record of advocating that the court operate without public scrutiny. When Politico (5/2/22) reported that a draft court decision would soon overturn Roe v. Wade, the Journal went into attack mode.
Trump-defending legal scholar Alan Dershowitz took to the Journal (10/30/22) to advocate finding out who the leaker was, saying, “Learning and disclosing the source of the leak would strengthen the high court by preventing future breaches.” In a later piece (2/1/23), Dershowitz asserted that “the argument for compelled disclosure is strong because the source didn’t seek to expose any wrongdoing by the government.”
In direct response to the Politico report, the Journal editorial board (5/3/22) called the leak “an unprecedented breach of trust, and one that must be assumed was done with malice aforethought.” It added that the response to the report was “intended to intimidate the justices and, if that doesn’t work, use abortion to change the election subject in November from Democratic policy failures.” A Journal op-ed (6/24/22) called the leak an “act of institutional sabotage.”
Sheltered from citizens
What is going on here is a seemingly bizarre, but not unprecedented, case of a journalistic institution opposing the actual act of real journalism. When the Guardian (6/11/13) reported on widespread National Security Agency surveillance, thanks to a leak by Edward Snowden, or when Chelsea Manning was sentenced for leaking intelligence information to Wikileaks (PBS, 8/21/13), a few journalists absurdly asserted that both the leakers and the outlets acted irresponsibly in exposing secret documents (FAIR.org, 5/1/15, 1/18/17, 5/25/17, 4/1/19).
But other than spot news, journalism is the publishing of materials that weren’t meant to be public. Reporters commonly get their scoops because someone in power gave them a heads up that shouldn’t have happened—a tip on a grand jury indictment, details of an upcoming corporate merger, etc.
Like its campaign against the leak to Politico, the Journal’s outrage against the Times story isn’t just rooted in its allegiance to conservative policy-making in all three branches of government. The editorial reaction here is the defense of the idea that the court is not a normal branch of government, that it is an esoteric council of secret elites who must operate in the shadows away from the citizenry and, of course, the press.
In other words, the Journal is against, of all things, journalism that exposes how powerful institutions function.
Featured image: New York Times photo illustration from its report (9/15/24) on Chief Justice John Roberts’ deliberations.
Read Ian Millhiser’s “Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted,” to get a good idea of how justice in principle is “just us ruling class folks” in practice.
That book had me depressed for months, once your eyes are open to which class the SCOTUS has historically ruled in favor of.
Why not send all 9 packing, no pension, no severance package, no 401K (if they had it), and reformulate the whole shebang as follows:
Delegate a single jurist from every state and territory of the U.S. and have that pool of jurists serve as a judicial review board, each jurist is there for two years, in a way similar to how we run jury duty. Preferably, the new judicial review board should be composed of non-lawyers, non-professional managerial class people, but people whose lives have been negatively impacted by crappy laws and previous ‘just-us-9’ elitist high court rulings, run it like that until we get most of (not all since purity is impossible) corruption out of the political processes….yes this is a pipe dream that’ll never happen. But one can dream.
President Biden has been graced by the Court with the power to completely reform the Court; to put the psycho-6 out on the street; out of our misery. The Presidential power that they created for Trump by “Trump” v United States is best used once to extinguish that power. Note also that the psycho-6 in legitimizing Trumps insurrection joined that insurrection that action cleanly falls within the Insurrection Act as is explicitly clear in the 1827 Supreme Court Precedent Martin v. Mott. The Court ruled that “the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.”
7/1/24 – ‘Trump’ v United States: The 6 MAGA Justices of the Supreme Court crafted their opinion to give Trump immunity for inciting the J6 Coup attempt. Justice Sotomayor in dissent notes that the result gives the President the power to legally order Seal Team 6 to assassinate political rivals, to organize a military coup to hold onto power. . . ‘Trump’ negates the American Revolution – giving the President far more power than the King we overthrew; inverts the truly revolutionary element of the Constitution – that No One is Above the Law; and does all this with absolutely no Constitutional basis. This makes the MAGA 6 collaborators in the continuing J6 Insurrection. The next item on the Supreme agenda is to rule, regardless of fact, that Trump wins the 5 November election. There will be no phone calls to ‘find’ votes nor late recruiting of false electors. The MAGAs have spent 3 years on multi-tiered vote suppression and state laws mods. The Constitutionality of these is irrelevant as the treasonous 6 have already decided the cases – all they need do is fill-in the sophist arguments.
Even without this insane dictatorial power Trump’s J6 Insurrection almost succeeded. The Mob failed to overturn the ’20 election only because the Joint Chiefs of Staff, like all US soldiers, were trained in the Duty to Disobey Illegal Orders and understood that Trump’s orders were illegal. The Court has now declared such orders legal. If this Precedent is allowed to stand, and Trump is elected, then American Democracy is dead. As dead as Putin’s opponents who fall from windows.
Astonishingly ‘Trump’ also creates a clear opportunity for the immediate comprehensive reform of Court and restoration of Constitution. The insane Presidential powers created by ‘Trump’ for Trump, are presently held by President Biden. He can both clean the Court and restore the Constitution. It is best done quickly – definitely before the election; ideally 10/7 when the Supreme Court next convenes. There will be consternation and gnashing of teeth in the Federalist Society, Heritage Foundation, throughout the MAGA-sphere. But Trump will remain as the Republican candidate. As we, the Democratic Party, failed in 44 months to convict him, and thus exclude his candidacy via 14A Sect 3 Insurgency, he has that right.
At this moment, early September, Harris is surging and Trump floundering. A preemptive strike must do 2 things. 1) Force retirement of the MAGA 6 that they not rig the election. 2) Remove all Precedents that are not consistent with Judicial Review (as defined below). Rescission of ‘Trump’ and removal of the MAGA 6 will devastate Trump and his collapse will weaken MAGAs across the board guaranteeing Democratic control of House and Senate. Rescission of all the foul Precedents noted below is a pre-condition for any real hope of addressing Climate Chaos at the Scale & Speed consistent with rational risk analysis.
A brief history of Supreme Court decisions reveals both how we came to this point and how deep we have to cut to restore the Constitution.
1803, Marbury v Madison. Chief Justice John Marshall, observing that the Constitution is the supreme law of the land, asserts that the Supreme Court has the right of Judicial Review. Specifically that any part of a Federal or State Law that is in conflict with the literal meaning of the Constitution then it is void. Marshall’s elegant statement: “a law repugnant to the constitution is void.” I see this as an essential check on legislation passed by Congress or State Legislatures.
All the Precedents I have encountered mock this restriction to Judicial Review. Those listed below mock the Constitution itself. And these perfidies are magnified by ‘Stare Decisis’; the ‘requirement’ that existing Precedents be treated as sacrosanct. Facts: The Constitution that is sacrosanct. Judicial Review only allows that laws be voided that directly conflict with the amended constitution. Only Congress can create laws.
1823, Johnson v. McIntosh. This, also by John Marshal, integrates the most noxious precept of international law, the Papal Bulls of Discovery, modified to be “Civilized Discovery”, into US law. There is not space here to convey my disgust..
1886. By forgery and lies in Head Notes, it is accepted as Precedent that the word ‘person’ in 14A includes Corporations.
1976, Valleo…2024, Snyder Bribery is Political Speech metastasizes into universal bribery of Public Officials.
1967. Qualified Immunity of police metastasizes into 2024 ‘Trump’ Absolute Immunity of President.
These are the intersecting threads of foul Precedents that, by design, have crushed the middle class and divided us in preparation for the overthrow of democracy that is Trump v United States. But that is not how it’s working out. 99+% of the several thousand Rs, Ds, NPAs I’ve spoken with since 1 July are aware of and repulsed by this perversion. It is unifying the country in opposition. The preemptive strike as above implodes the Judicial Death Star. The legislative platform sketched in the sidebar becomes feasible. The corruption that has hollowed American industry, as profit obtains by monopoly rather than efficiency, innovation, and service. And “student” precedes “debt” like ”medical care” does “denial”. It restores the Constitution that produced the incredible domestic successes of FDR, JFK, LBJ. And it is ours if we convince our Congress, DNC, and of course Biden; that the alternative is untenable. Explicitly that the MAGA-6 will rule that all 5 Nov voter suppression valid and the ‘election’ of Trump near certain..