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President Trump is catastrophically, comprehensively, wrecking our democratic order, but he couldn’t do it without the Worst Chief Justice of All Time, John Roberts, and the rest of the Supreme Court’s MAGA majority.
Trump should probably send the nation’s highest jurists a fruit basket or something as a wee bit of thanks for their latest gifts: the right to wreck the midterm elections and the right to keep building the bribe-funded ballroom.
The former is courtesy of the Court’s six conservatives, but the latter is a solo Roberts joint. Put another way, the mail-in ballots case is a shadow docket travesty, while the ballroom is an administrative stay travesty. Both are corrosive to democracy.
Up first: teeing up letting Trump screw with the midterms in an extremely unconstitutional fashion, because of course Trump will suffer immense harm if he can’t get his way.
First, let’s be clear about a smallish silver lining here: the mail-in ballots decision is both reprehensible and a mess, but it doesn’t quite do what some of the reporting says it does. It doesn’t mean that the US Postal Service Final Rule, promulgated last Friday, goes into effect. A different case, brought by the League of Women Voters, still enjoins the administration from implementing that rule, and as Steve Vladeck notes, the litigation on that is yet to come.
But that doesn’t really make things better, at least as far as the whole constitutional crisis part goes. That’s because the Court’s right-wingers continue to swallow the Trump administration’s laughable lies about what they are doing, lies that contradict both their own public statements and the dictates of logic.
The majority’s decision here pretends to be a narrow one based only on the technical concept of standing — whether the 23 states that sued to block this have the right to sue at this point. The majority decided they did not, agreeing with Trump that the executive order doesn’t do anything yet and can’t be challenged until it does.
To get there, they had to write nonsense sentences about how this executive order, which Trump has touted as critical to ensuring election integrity, is nothing but “an internal directive from the President to his subordinates mandating that certain agencies pursue certain policies. It neither requires nor forbids anything of anyone outside the Executive Branch.”
But Justice Sonia Sotomayor’s dissent points out what hogwash this is, because the administration is simultaneously arguing two wholly incompatible things:
“Yet even as the Government represents that it may not implement the Executive Order at all for purposes of defeating standing, it insists that it seeks to implement the Executive Order immediately for purposes of establishing irreparable harm. See Application 28–29 (’The irreparable harm is the government’s inability to implement the order as to the November 2026 election in the respondent States’). The Government cannot have it both ways.
Except, of course, thanks to this Supreme Court, it can. The states are essentially being told they have to wait around for Trump to implement a patently unconstitutional executive order and only then raise a challenge.
Because here’s the thing: there’s no world where it is constitutional for the executive branch to interfere with the conduct of elections in this fashion. As Chris Geidner pointed out at Law Dork, not even the majority here tries to say Trump’s executive order is constitutional. And that’s part of what makes it so maddening here. There’s not even a pretense that this conforms to the Constitution, only a smug little coda explaining they’re not deciding that at all yet:
The Court’s disposition of this application does not mean that any measure taken by the Government to implement the Order will necessarily be lawful. On that score, time will tell.
So the states have to wait to see if Trump wrecks the constitutional order, 10 weeks before the midterms, before they can challenge Trump wrecking the constitutional order, 10 weeks before the midterms. But it’s also such an emergency that the Court had to step in. Got it.
Roberts saves Trump’s ballroom
While the mail voting ruling was a shadow docket special, the fault of all the Court’s right-wing majority, the ballroom is a John Roberts decision, not a Supreme Court decision, though mainstream outlets that should really know better reported Roberts’s unilateral move as a ruling by the Court itself.
Here’s NPR: “The Supreme Court ruled Friday that President Trump can — for now — move forward with construction of his ballroom.” Here’s the BBC: “The US Supreme Court has temporarily allowed construction of the White House ballroom to move forward.” Here’s Reuters: “The US Supreme Court on Friday allowed President Donald Trump’s administration to continue construction of his White House ballroom project for now.”
The Supreme Court, as such, didn’t do any such thing.
Rather, on August 21, the last day before a federal appeals court decision halting construction would have kicked in, Roberts issued a one-sentence administrative stay that allows Trump to keep building for, well, who can say, really.
In a normal world, with a normal president and a normal Supreme Court, there wouldn’t really be a need to get so pedantic about what types of stays the Supreme Court issues or who is doing the issuing. But in a world where that president routinely races to the highest Court for relief and a world where the highest Court often twists itself in knots to give Trump whatever his heart desires, it’s important to distinguish between shadow docket rulings and what Roberts did here.
In an administrative stay, just one justice can stop a case indefinitely. That’s because each justice is a “circuit justice,” and they handle emergency requests for the appellate circuit courts they oversee. An administrative stay issued by one justice is then, in theory, referred to the full Court.
As Steve Vladeck explained at One First, this is to give the Court slightly more time to consider whether to take the case and grant or deny emergency relief. And that’s not a bad thing, in theory. It allows for swift action in a genuine emergency, a way to stop the clock until the entire Court can meet and decide an issue. It’s used for death penalty cases, for example, where immediate relief is necessary as an execution date approaches.
For Trump, however, pretty much everything is an emergency, one which he demands immediate action on, but the “emergency” is typically simply that he wants to do what he wants, and as the president, he can do it. And the right-wing justices have used the administrative stay as a sort of one-person veto power to stall out cases in a convenient, inevitably pro-Trump way.
One of the most notable ones was letting Trump’s firing of Federal Trade Commission member Rebecca Slaughter stand for months, even as lower courts had ruled against him. Then, after sitting on it forever, the conservatives on the Court finally threw out their own longstanding precedent and decided that Trump could fire anyone he felt like, except, of course, for Federal Reserve board members.
The Roberts Court has turned the very concept of a stay on its head again and again. In theory, a lower court order is stayed when allowing it to go into effect would cause great harm to the party requesting the stay. But in the Trump era, the standard instead seems to be that a stay is warranted if not granting one would make Trump sad.
We don’t know how long the administrative stay will last, but what we do know is that these administrative stays now often last longer than the sort of emergency temporary relief they are supposed to provide.
There’s also the fact that it simply cannot be an emergency that causes Trump some sort of harm if he were forced to stop building his ballroom for a wee bit until the full Supreme Court could weigh in on the speedy shadow docket Trump and the Court’s majority loves so much. But we know that Trump is racing to get as much of the ballroom built as possible before any adverse decision comes down, all the better to declare that it is simply too late to stop now.
And it’s that part that leads to a very likely, and very depressing outcome here, one which is arguably more cynical than the Court’s conservatives simply greenlighting the ballroom construction. And that outcome has a lot to do with Roberts’s persistent self-regard as some sort of balanced, even-handed jurist — a stance that gullible news outlets fall for every time.
Blocking the lower court’s injunction while simultaneously also blocking the Supreme Court from acting means that right now, Trump can continue without any pesky interference. But Roberts has given himself an out, one where the full Court might decide at some undetermined point in the future that Trump didn’t really have the right to tear down the East Wing and build a giant gold monstrosity in its stead without ever checking in with Congress. But alas, the damage is now done, so Trump gets his ballroom anyway.
Even writing that feels conspiratorial, trafficking in the kind of nonsense usually reserved for QAnon adherents, where the actions of the deep state are those of a shadowy cabal we must remain ever vigilant against. But what else are we to make of a chief justice like John Roberts, of a Court like this? With narrow exceptions like the tariffs case and refusing to allow Trump to fire members of the Federal Reserve, Roberts has presided over giving Trump win after win after win.
Roberts was responsible for giving Trump immunity from any consequences of his criminal actions. Roberts signed on to the MAGA majority kneecapping the lower courts by blowing up nationwide injunctions. Roberts has used Trump’s racist zeal to substantially complete his life’s work of dismantling the Voting Rights Act. Yes, he’s had help from the other conservatives on the Court, but in the end, it’s the Roberts Court, and he owns it.
Roberts is antidemocratic to his core, and he’s been happy to help Trump hasten the death of the constitutional order. He should be forever reviled for it, especially because apparently we’re going to get a really ugly gold-plated ballroom as an eternal shrine showing just how far Roberts let things slide on his watch.
That’s it for today
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Incredibly, public regard for the Supreme Court remains high relative to Congress and the presidency. It’s past time for small d democratic to mount a coordinated scorched earth campaign that attacks this Court’s credibility.
How many binkies does one man need? John Roberts AND Natalie?