Oct.06

electoral-vote.com

Dem 47

   

GOP 53

The Supreme Court is Back in Town

The Supreme Court justices think R&R is important, so they give themselves a 3-month vacation every year. For a job that pays $303,600 (with the chief getting an extra $14K) it's not bad work, if you can get it. But starting today, they will have to earn their $300K salaries. They have to read long briefs from plaintiffs, defendants, and amici, as well as listen to hours of boring oral arguments, then ask Donald Trump how he wants them to rule. It's tough.

There are many controversial cases on the docket this term. Many of them deal with the scope of presidential power and whether they are willing to come out and say point blank to Trump: "You cannot do what you want to do. That violates the Constitution." Chief Justice John Roberts is a keen follower of politics. He understands that the Court derives all of its power from the public believing that it is fair. This may mean saying "no" to Trump on a few issues, so Roberts can say he is just calling balls and strikes. However, starting in 2026, Major League Baseball will be introducing robotic umpires to call balls and strikes. Maybe in 2027, Roberts can be replaced by a robot, since they are better at calling balls and strikes than humans.

Here are a few of the hot-button cases that will have to be decided before Robo-Roberts is booted up.

• Birthright Citizenship: This is actually an easy case. The Constitution is crystal clear that anyone born in the U.S. except foreign diplomats' children is a citizen. If Trump's XO is overruled, he will grouse a bit but he doesn't really care about this so much. However, talking heads and pundits will be ecstatic if the Court rules against Trump, saying: "Look, the system works just fine. Nothing to see here." This will be an easy way for the Court to look impartial: A 9-0 vote against Trump. "See, we are not in the tank for him!"
  
  
• Tariffs: This one is very big. Trump declared an emergency and then used his new emergency powers to levy tariffs left and right, despite the Constitution explicitly granting Congress the power to levy tariffs. It has a separation-of-powers aspect as well as a huge economic aspect. Trump's tariffs are one of the biggest tax hikes in history, and Congress played no part whatsoever in imposing them. If Trump wins this one, James Madison will roll over in his grave. Hawley and Smoot will be pretty happy, though, as they will no longer be responsible for the least popular tariff in American history.
  
  
• Independent Agencies: The federal government has something like 400-800 agencies, depending on what counts as an agency. In many cases, when Congress created the agency, it stipulated that the head had to be approved by the Senate, was to serve for a fixed term, and could be fired only for malfeasance in office, in order to isolate the agency from politics. For 90 years, presidents of both parties have accepted this and not fired agency heads unless they had done something truly heinous. Trump maintains that as head of the Executive Branch he can fire anyone in the Executive Branch at any time for any reason or no reason and Congress does not have the power to restrain him.
  
  The most profound test case will soon be in front of the Court: the Fed. Trump fired Fed governor Lisa Cook because he doesn't like Black women he wants to replace her with some flunky who will obey him. The Court will have to decide whether Trump can fire Cook. If it decides that he can, the markets could nosedive as they have always taken it as an article of faith that the Fed does what is best for the economy, not what is best for the president's approval rating. It is a monumental question. Also, if Trump can fire someone on the Fed Board, surely he can also fire every agency head since none of them are as important as a Fed governor. A possible decision is that he can fire anyone in the Executive Branch except the vice president and members of the Fed board. Everyone else is fair game. It would be a truly horrible decision, but the six conservative justices might see it as a "compromise."
  
  
• Due Process: Another biggie is immigration. Trump (actually Stephen Miller) has ordered ICE to go on raids in places where immigrants are often found, arrest everyone, and then ship them off to a foreign gulag without ever even having the chance to see a judge. Some of the arrestees are actually U.S. citizens. Is the government required to follow the law here and give everyone arrested due process, Miranda warnings, a lawyer, and the whole democracy business? Inquiring minds want to know.
  
  
• Foreign Aid Payments: The now-almost-defunct USAID gave out contracts to nonprofits and others to perform certain services. In some cases, the work has already been performed and the group that did it has sued for payment according to the contract. Trump has said he doesn't like foreign aid, so no, he is not paying. Can he do that?
  
  
• The Voting Rights Act: Louisiana legislators drew a congressional map with one of the six districts having a Black majority, despite over one-third of the population being Black. The courts said "Nope!", so the legislature drew a new one with two majority-Black districts. Some white folks sued, claiming racial discrimination against white folks. We don't know how Roberts will vote on this one but we can predict with some certainty that if there is a way to stick it to Black people, Clarence Thomas will find it.
  
  
• Trans Athletes: The practical impact on whether trans girls can play on girls field hockey teams in high school is roughly nil, but this is the most emotionally charged case on the docket. If the justices say "Who cares?" the answer will come roaring back as "EVERYONE!" One way out could be to punt (as they did on abortion) and say no one has a constitutional right to play girls field hockey, so the matter is up to the elected representatives in each state.
  
  
• Conversion Therapy: Colorado law bans people from giving "therapy" whose goal is to convince gay people that they shouldn't be gay because then they will go to Hell. A Christian therapist says this law is costing him business and wants the Court to strike down the law. The state will argue that it wants to protect vulnerable teens from quacks like the therapist who is suing it.
  

It is hard to predict what the Court will do. Of the 22 cases on the emergency docket so far, Trump has won 18, lost 2, and 2 were mixed. Trump has (temporarily) won on banning trans soldiers, allowing the DOGEys to access sensitive Social Security data, and cutting $800 million in NIH grants and contracts that were already signed. Probably the six conservative justices would really like to let Trump win every case, but they know that giving him wins all the time will cause the public to think of the Court as the D.C. chapter of the Republican Party. They might not really care about that, but a greater danger is truly enraging the Democrats and discovering that they have 12 new colleagues by the summer of 2029 if the Democrats win the trifecta in 2028. That they really don't want.

Another thing to watch for, besides the actual decisions on the cases, is the tendency of the Court to overturn precedents all in the same direction. This makes it look ideological. When one edition of the Supreme Court says: "[X] is a basic right guaranteed by the Constitution" and somewhat later another edition says: ""Nah, that was just their personal opinion," it greatly reduces the respect the country has for the Court's decisions. When stare decisis is no longer a thing, the public is going to come to see the Court as just nine unelected politicians in robes. (V)