Supine Court Stoops To Kiss Trump’s A**

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Some of you may be thinking the US Supreme Court will be the bulwark between the Constitution and the totalitarian dreams of the Trump administration. That is a pleasant thought, but ignores the fact that six of the nine members of the court (it doesn’t deserve to be capitalized) were nurtured by the same culture that gave us Project 2025.

The Contrarian this week reported that nearly a dozen federal court judges, including those appointed by both Democratic and Republican presidents — including Trump — went to NBC News with their complaints. The move is seen as an unprecedented display of frustration and anger.

The group told NBC News,

“Lower court judges are handed contentious cases involving the Trump administration. They painstakingly research the law to reach their rulings. When they go against Trump, administration officials and allies criticize the judges in harsh terms. The government appeals to the Supreme Court, with its 6-3 conservative majority. And then the Supreme Court, in emergency rulings, swiftly rejects the judges’ decisions with little to no explanation.”

Those emergency rulings are part of what has come to be known as the court’s “shadow docket” — a special emergency calendar that often requires no briefs to be filed and no public debate. Emergency petitions get circulated among the justices, who vote yea or nay and issue rulings that are often unsigned and omit information about how each member of the court voted. It’s the closest thing America has to secret tribunals.

According to Wikipedia, critics of the shadow docket argue it gives the court an unreasonable amount of power. Nicholas Stephanopoulos, a law professor at Harvard University, said the “idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about … If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”

David Cole, the national legal director of the American Civil Liberties Union and a professor at Georgetown University Law Center, has also said that if the Court can “make significant decisions without giving any reasons, then there’s really no limit to what they can do.”

Steve Vladeck of the University of Texas School of Law, wrote in the New York Times: “Until this term, it would have been unheard-of to articulate a new constitutional rule while issuing an emergency injunction to enforce it … A majority of the justices are increasingly using procedural tools meant to help them control their docket to make significant substantive changes in the law, in defiance not only of their own standards for such relief, but of fundamental principles of judicial decision making.

“For a Court whose legitimacy depends largely on the public’s perception of its integrity, the growth of unseen, unsigned, and unexplained decisions that disrupt life for millions of Americans can only be a bad thing.”

Two Decisions Overturned Today

Just today, the court used the shadow docket to overturn two lower court rulings. The first overturned a ruling by the 9th Circuit Court of Appeals that upheld a ruling by District Court judge Maame E Frimpong in Los Angeles who found a “mountain of evidence” that enforcement tactics were violating the Constitution. The plaintiffs, who said the administration’s approach amounted to “blatant racial profiling,” included US citizens swept up in immigration stops. An appeals court left Frimpong’s ruling in place.

The administration argued the order wrongly restricted agents carrying out its widespread crackdown on illegal immigration. Well, duh. Are there to be no restrictions on what Trump’s private army does? Not according to the 6 MAGA members of the court.

The second case involves the firing of the last remaining Democratic member of the Federal Trade Commission, Rebecca Slaughter, while her case was in the courts. Since 1935, the country’s highest court had said the president does not have the power to fire members of independent agencies created by Congress, Heather Cox Richardson wrote in a blog post.

“The court decided these cases without hearings, briefs, or a written decision, under what is called the “shadow docket.” Traditionally, such unsigned, unexplained decisions are used for emergencies either to keep the status quo or to resolve a procedural issue, but under Trump the court’s use of them has exploded,” Richardson wrote.

“The court, three of whose justices Trump appointed, has sided with him in shadow docket decisions more than 70% of the time. On September 4, Lawrence Hurley of NBC News noted that this new practice of overturning lower court rulings with no explanation is undermining faith in the judiciary. It supports the administration’s narrative that the courts are trying to subvert Trump’s presidency.”

Noah Feldman, a professor at Harvard Law School, wrote in an opinion piece for Bloomberg:

“What makes this decision a striking example of contemporary anti-immigrant bias is how much it deviates from the ordinary constitutional rules concerning government stops of ordinary citizens. It would be plainly unlawful for the government to stop all young Black men in high-crime neighborhoods — or for that matter, all Patagonia-clad White guys on Wall Street in a sweep for insider trading.

“Technically, the standard for a criminal stop is probable cause, which as Kavanaugh noted is higher than the ‘reasonable suspicion’ standard for immigration stops. But the constitutional principle that no one should be judged by the color of their skin (or the way they speak or where they work) should apply with equal force in both situations. That principle is the equal protection of the laws for everyone. And that equal protection should suffice to insulate all of us from being arrested by government officials because we look or sound different from some stereotypical ‘American.’”

No Surprise

None of this should surprise anyone. The momentum for a fascist takeover of the United States has been building since the Lewis Powell memorandum in 1971, which argued that the interests of corporations should take precedence over individual freedom. That argument led directly to the Reagan era “trickle down economics” disaster and became a blueprint for Project 2025, the fascist master plan that is now the official policy of the US government.

Don’t for one minute overlook the efforts of Charles Koch, who has been the architect of the ultra conservative movement for 60 years. His Heritage Foundation created Project 2025 and his Federalist Society has shepherded many right wing lawyers to prominence. All six current members of the conservative wing of the USSC were suckled at the breast of the Federalist Society.

One component of conservative thought is called the “Unitary Executive Theory.” According to Wikipedia, “In U.S. constitutional law, the unitary executive theory is a theory according to which the president of the United States has sole authority over the executive branch. The theory often comes up in jurisprudential disagreements about the president’s ability to remove employees within the executive branch; transparency and access to information; discretion over the implementation of new laws; and the ability to influence agencies’ rule-making. There is disagreement about the doctrine’s strength and scope. More expansive versions are controversial for both constitutional and practical reasons. Since the Reagan administration, the Supreme Court has embraced a stronger unitary executive, which has been championed primarily by its conservative justices, the Federalist Society, and the Heritage Foundation.

The theory is largely based on the Vesting Clause, which vests the president with the ‘executive Power’ and places the office atop the executive branch. Critics debate over how much power and discretion the Vesting Clause gives a president, and emphasize other countermeasures in the Constitution that provide checks and balances on executive power. In the 2020s, the Supreme Court held that, regarding the powers granted by the Vesting Clause, ‘the entire executive Power belongs to the President alone’.

Historical Precedents

Fascism is not new. Richardson points out in her most recent post,

“The apparent plan of the Trump administration reflects the strategy of Nazi political theorist Carl Schmitt, whose writings seem lately to have captivated leaders on the American right, including billionaire Peter Thiel and the man who influenced him, Curtis Yarvin. Schmitt opposed liberal democracy, in which the state enables individuals to determine their own fate.

“Instead, he argued that true democracy erases individual self-determination by making the mass of people one with the state and exercising their will through state power. That uniformity requires getting rid of opposition. Schmitt theorized that politics is simply about dividing people into friends and enemies and using the power of the state to crush enemies. As J.D. Vance described Schmitt’s ideas in 2024: ‘There’s no law, there’s just power.’” That seems a pretty accurate description of what is occurring in the United States today.

Richardson adds, “Much of Schmitt’s philosophy centered around the idea that the power of a nation that is based in a constitution and the rule of law belongs to the man who can exploit emergencies that create exceptions to the constitutional order, enabling him to exercise power without regard to the law. Trump — who almost certainly has not read Schmitt himself — asserted this view on August 26: ‘I have the right to do anything I want to do. I’m the president of the United States. If I think our country’s in danger — and it is in danger in the cities — I can do it.’”

The Supine Court agrees. The next matter it will take up is whether a court can invalidate the Trump tariff scheme or prevent the so-called president from firing a member of the Federal Reserve. Based on its behavior so far, the odds are it will overturn both of those lower court decisions, giving even more power to the executive branch to do whatever it wants. For those hoping the court would do what its members swore to do — support and defend the Constitution — the odds are that it will not.

If you are sitting  back and thinking “What does this have to do with me?” here’s the answer. Richardson cites Jim Saksa of Democracy Docket who explained in August that through intimidation, harassment, and delays, troops could keep large numbers of voters from casting ballots. The administration might even claim fraud to seize voting machines, as Trump contemplated doing in 2020. This week in Mother Jones, Ari Berman noted the administration has dismantled efforts to promote election security and is working to stack state elections boards with loyalists.

MAGA loyalist Steve Bannon recently said: “They’re petrified over at MSNBC and CNN that, hey, since we’re taking control of the cities, there’s going to be ICE officers near polling places. You’re damn right.” Illinois governor J.B. Pritzker, speaking of Trump’s threatened military incursion into Chicago, observed: “This is not about fighting crime. This is about the President and his complicit lackey, Stephen Miller, searching for ways to lay the groundwork to circumvent our democracy, militarize our cities, and end elections.”

And that will be the end of democracy in America.