Making America Worse, Again
It’s Trump on Steroids, Except the Steroids Are Republican Operatives in Black Robes on the Supreme Court
It’s hard to believe this is where America is on the timeline, but it’s not hard to imagine it getting even worse with a chief executive fanning the flames. If only there were truth in advertising, the red hats would bear the hashtag #MAWA and the U.S. Supreme Court would be called the judicial junta that it has become–an unelected judicial council that is blessing Donald Trump’s counter-legal dictates. Those dictates are links in the chains of authoritarianism, forged through the destruction of civil liberties and the perversion of the rule of law to serve one man–and the delusional billionaire oligarchs backing him.
Almost every week in the cacophony that characterizes Trump’s administration, there comes another ruling on his side from the Republicans installed on the nation’s highest court, through what’s known as the “shadow docket.” It’s called that because these are edicts issued without a public oral argument or full briefing, but it has become even shadowier in Trump 2.0. It is being used as a vehicle to reverse well-reasoned lower court rulings temporarily blocking some of the Trump regime’s most extreme actions. The Supreme Court’s stygian orders–often reversing trial court rulings based on legal precedents without issuing any opinion to rationalize such reversals–have left lower court judges without guidance on what they did wrong, other than not bowing to Trump.
Earlier this month, in a rare move, a dozen federal court judges spoke off the record with the press about their concerns regarding this pattern. As NBC described it:
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… And then the Supreme Court, in emergency rulings, swiftly rejects the judges’ decisions with little to no explanation. Emergency rulings used to be rare. But their number has dramatically increased in recent years.
After Neil Gorsuch–the lifelong Republican activist whom Leonard Leo urged Trump to install after orchestrating the theft of that vacancy with Sen. Mitch McConnell– lectured lower court judges that they should not “defy” the Supreme Court, a lower court judge noted that the shadow docket rulings often do not give reasons for reversals. U.S. District Court Judge Allison Burroughs noted that it is “unhelpful and unnecessary to criticize district courts for ‘defy[ing]’ the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”
In response perhaps, the Roberts Court gave some explanation recently when it used the shadow docket to reverse an order from a federal court in Los Angeles that had blocked Trump’s ICE agents from using racial profiling in their raids. As the Mexican American Legal Defense and Education Fund (MALDEF) explained:
The order barred immigration agents from stopping people based solely on their race, language, job or location. Judge [Maame] Frimpong made the decision after several U.S. citizens were detained by ICE agents. One of those U.S. citizens detained was Job Garcia, a Los Angeles resident who was held for more than 24 hours after agents violently arrested him at a Home Depot where he was making a delivery.
Brett Kavanaugh–a Republican operative similarly installed on the Court by Trump at Leo’s urging and someone whose impeachment I was the first to call for–issued a concurrence in the reversal of that order that revealed just how flawed the Court’s reasoning is. As MALDEF compellingly wrote:
First, his opinion rests on crude and unsupported assumptions and stereotypes about the undocumented; no stay of an order requiring compliance with the Constitution should rest on such a lack of evidence. Second, he completely disregards the consequential, demographic fact that millions of citizens and lawful residents of the Los Angeles community are also Latino and also speak Spanish. In effect, Kavanaugh sacrifices the rights of all Latinos to the false Trumpist idol of unconstrained immigration enforcement. Third, he ignores other demonstrated and critical context – like the fact that many of those detaining and questioning folks were in unmarked vehicles, masked, and in civilian clothes. That is a relevant consideration as to how these activities – including racial and language stereotyping — are occurring in a lawless and dangerous manner… [T]oday’s decision will catalyze activity that will lead to widespread violations of clear constitutional rights, including the ban on undue force.
Twenty-percent of the American population is Hispanic or Latino; allowing masked federal agents to engage in racial profiling puts nearly 70 million people here at risk of being accosted and having their rights violated. The figure is even higher when you consider people who may simply look Latino.
Back when Brett Kavanaugh was in the White House receiving confidential memos taken without permission from me when I was the Chief Counsel for Nominations for the Senate Judiciary Committee, the man secretly providing Kavanaugh with those memos seemed obsessed with my ethnicity. He was a former staffer for Sen. Orrin Hatch who had catapulted over his supervisors to become the nominations advisor to the new Senate Majority Leader, Bill Frist, perhaps using my memos as his currency.
As the Republicans confirmed John Roberts over our objections and as we prepared to filibuster Miguel Estrada’s nomination, Frist’s staffer began tracking me down to slyly try to figure out if I was Latina–he’d sidle up to me in the Senate cafeteria and ask if I spoke any foreign languages or if my family immigrated here, questions I dodged because I considered his interest insincere and odd. He even asked me if my last name was really pronounced “gra-vez” like Sanchez.
That was just days before the outside groups aiding Kavanaugh’s efforts to get Bush’s judicial nominees confirmed launched attack ads calling my boss, Sen. Patrick Leahy, “anti-Hispanic” for blocking Estrada. I think some were afraid that their attack ads could be refuted if Leahy’s chief counsel for nominations was a Latina. I’m not. (I tell more of the story about the files Kavanaugh received in my new book, Without Precedent.)
Under the new racial profiling ruling issued this month by the reckless Roberts Court, countless Americans are at risk of being harassed based on their appearance or surname or job, without any actual basis to believe they are not lawfully present in the United States. Since Trump’s election, I have started carrying my passport with me wherever I go, something I never considered necessary before.
I cannot believe America is now a place where masked federal agents can demand that you present your papers–and even imprison people after capriciously disregarding the “REAL ID” the government has required for air travel.
I cannot believe we have Trump’s defense attorney acting as Attorney General and claiming she will arrest Americans exercising their freedom of speech while presiding over the coddling of Ghislaine Maxwell, a convicted child sex trafficker.
I cannot believe we have a madman at the helm of our federal health agency making it harder for people who want the Covid-19 vaccine to get that medicine.
I cannot believe we have such an arrogant and out of control U.S. Supreme Court under John Roberts’ rule…well, that I can believe, but it’s worse than I imagined even after he orchestrated Trump’s unprecedented immunity from criminal prosecution and paved the way for Trump’s return to power.
There are so many things I cannot believe that are happening, but I still believe it is possible for America to choose a different course, a better one that rejects MAWA.
What I’m Reading:
Dolores Huerta: A Life in American History
This new biography of the heroic civil rights organizer is so inspiring, and this week marks the beginning of National Hispanic Heritage Week.
Amy Coney Barrett’s Listening to the Law
I’m reading this so you don’t have to listen to the law being distorted by the Trump appointee handpicked–by none other than Leonard Leo–to destroy women’s reproductive rights. I promise to write a piece or two about some of the amazing spin she put in this memoir, secured by a $2 million advance.
Today, September 17, is Constitution Day, but the Trump defense lawyer cast as Attorney General is using her post to push restricting our freedom of speech in spite of the protections for dissent in our First Amendment.
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Can’t wait to read your book!
MAWA! Let’s make it a chant!