Knives Out: The Roberts Court Coronates Trump
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On Procedural Grounds
I’m not going to lie to you my friends, unless you’re some kind of cracker nazi, the situation in America is beginning to look dire. The fascist Trumpenreich is progressing an agenda to consolidate all power into the executive branch at an almost breathtaking pace. The regime is literally occupying an American city, actively conducting an ethnic cleansing operation, arresting members of its political opposition, and openly articulating intentions to establish a globalized concentration camp complex, all while openly signaling its belief that dissent is treason and protest is terrorism or support for terrorism. Politically, and even culturally, the fascists are dismantling what passes for democratic life in America.
If there has been one desperately small silver lining, it has been the surprising resilience of the American judiciary in the face of a fascist Trump regime that regards the law as irrelevant except when they can use it to punish their political enemies, which is pretty much anyone who isn’t a fascist, with a particular focus on marginalized people and visible minorities. There are of course significant limits to this resilience; the regime has at times willfully ignored court orders, key Trumpenreich officials have displayed open contempt for the rule of law, and the President himself has threatened individual judges with impeachment. Despite this, a series of key lower court injunctions and even key decisions by a 6-3 fascist high Roberts court have impeded many of the Swine Emperor’s most blatant attempts to break the law and violate the US Constitution.
Unfortunately a flurry of Supreme Court rulings at the end of June has made it clear that the six member fascist majority on the Roberts Court have merely been biding their time before legally sanctifying a de-facto executive branch dictatorship with theocratic characteristics under Swine Emperor Trump. First came an ominous ruling on the margins of the law to disingenuously sanctify Tennessee’s blatantly unconstitutional ban on gender affirming care for trans youth. Then, over the course of four days, the Supreme Court issued two rulings intimately related to the Trump regime’s ethno-nationalist mass deportation program, that in my opinion, make it abundantly clear that John Roberts has turned his back on the constitution in favor of a seat at the table of power in Trump’s nascent dictatorship. With the usual caveat that I am not a lawyer, let’s take a look at two articles about these decisions, and why I believe this is the true mask-off moment for both the Roberts Court and the larger Pork Reich.
“Fire Up the Deportation Planes”
Although the reality of the peril democratic life in America is in wouldn’t become apparent until the Trump v CASA ruling two days later, on June 23rd the Roberts Court released a purely partisan ruling through the emergency “shadow docket” that in retrospect I think is extremely revealing about just how far Roberts and the other five fascists on the Supreme Court are willing to go to support Trump’s fascist agenda. Faced with a Trump regime attempting to unlawfully traffic kidnapped migrants to failed state third countries without due process or any concern for personal safety, the Roberts Court ignored both the government’s incriminating refusal to obey lower court orders, and precedent set by its own decision in the outrageous Kilmar Abrego Garcia case to block a US District Court injunction and clear the way for Downmarket Mussolini to fly undocumented human beings to concentration camps around the globe. For more details let’s check out this short blog post by Eloise Goldsmith writing for Common Dreams:
“In a blistering dissent, Sotomayor wrote that the ruling exposes “thousands to the risk of torture or death” and comes down on the side of the Trump administration even though it had violated the lower court’s order. Sotomayor was joined by Justices Elena Kagan and Ketanji Brown Jackson
“The government has made clear in word and deed that it feels itself unconstrained by law, free to deport anyone anywhere without notice or an opportunity to be heard,” she wrote in her dissent.
“Apparently,” she continued, “the court finds the idea that thousands will suffer violence in farflung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled. That use of discretion is as incomprehensible as it is inexcusable.”
Department of Homeland Security Assistant Secretary Tricia McLaughlin called the ruling a victory on Monday. “DHS can now execute its lawful authority and remove illegal aliens to a country willing to accept them,” she said in a statement. “Fire up the deportation planes.”
The case behind this unexplained shadow docket ruling is a complex and horrifying story about the Trump regime’s slow motion ethnic cleansing project. In May, the Trump administration attempted to traffic eight migrants to a concentration camp in South Sudan, without allowing them to contest that “deportation” and despite the fact that South Sudan is not a safe place to send them. The problem for the cracker nationalist Pork Reich, is that in April U.S. District Judge Brian Murphy issued a ruling directly instructing the Trump administration “not to deport immigrants to countries other than their home countries without giving them adequate notice to raise concerns that they might face danger if sent there.” This clear violation of Murphy’s order caused our increasingly criminal Department of Justice to seek emergency relief from the 6-3 fascist high Roberts court through the shadow docket, and here we are.
The important thing to understand here is that we already know this very same Supreme Court would likely rule that Trump’s attempt to traffic migrants to an unsafe third country concentration camp is unconstitutional, even migrants the administrations swears are dangerous criminals, if they ruled on the substance of the case. After all, that’s exactly what they did in the aforementioned Kilmar Abrego Garcia ruling. To get around this, the Department of Justice chose to attack Judge Murphy’s authority to issue a nationwide injunction blocking their clearly illegal and unconstitutional “deportations” without due process. Let me repeat that: the US government argued that preventing the regime from illegally trafficking migrants to concentration camps in unsafe third countries while they appealed a case they are almost certainly going to lose if the US Constitution means anything anymore, would cause the government irreparable harm that couldn’t be repaired even if they later won their appeals.
With no explanation, because none was strictly required, at least five “conservatives” on the Roberts Court voted to stay Murphy’s April order, essentially agreeing that Trump can violate the constitution and human rights law until this very same court gets around to ruling on whether or not the government can do that – which crucially, they did not rule on. Furthermore, there is literally no question that this is what the government intends to do in the wake of this ruling; as Assistant DHS Secretary Tricia McLaughlin was only too happy to reveal, the regime intends to “fire up the deportation planes” and start trafficking migrants to foreign concentration camps again immediately. Not a migrant? Don’t worry, the Roberts Court shadow docket fuckery on display here will probably strip away your civil rights too, eventually. As Chris Geidner notes on Law Dork, this seemingly narrow ruling has horrifying implications for the constitutional rights of all Americans:
“In practice, however, Monday’s order means the administration can send anyone who is deportable — meaning there is an order of removal in place as to them — anywhere that the government decides it wants to send them, regardless of the dangers that a person might face if sent there and without any right to challenge that decision.
This is a horrifying order that shows a disdain for basic principles of human rights — made all the more unconscionable by the fact that the Republican appointees provided no reasoning in doing so and on the shadow docket without the benefit of argument or full briefing.”
I think it’s safe to say that everything about this ruling is terrible, from both a legal and antifascist perspective. Whether serious court watchers agree with me or not, I don’t see much point in pretending the “conservative” majority on the Roberts Court didn’t just intentionally set aside the US Constitution to sanctify a Trumpenreich ethnic cleansing operation with a clever wink and a knowing smile. Whatever hopes institutionalists had that SCOTUS would reign in Trump’s dictatorial ambitions are pretty much dead now, unless you’re delusional.
Before we move on to the ruling that I believe proves beyond a shadow of a doubt that Roberts is knowingly coronating the Swine Emperor as a dictator, however, I just want readers to pay close attention to the sleight of hand trick the Court’s fascists used to accomplish that goal because it will come up again. By avoiding the substantive issue of whether or not Trump has the power to conduct clearly illegal migrant trafficking operations to unsafe third countries, but rather ruling that nobody else has the power to stop the regime from doing so while literally refusing to issue such a ruling, the Roberts Court has effectively locked the US Constitution in a box while allowing itself the luxury of pretending the Court has indeed upheld the law.
Unleashing the Hounds
If an opaque shadow docket decision left American legal observers waiting for the proverbial other shoe to drop, it turns out they wouldn’t have to wait long. Days after effectively sanctifying Trump’s fascist migrant trafficking scheme without acknowledging that it exists, the Roberts Court handed down another 6-3 partisan ruling in Trump v CASA that exposed their intentions to empower an executive branch dictatorship while retaining final say over the legality of the regime’s actions entirely to themselves. In doing so, the court’s conservative majority effectively rendered the US Constitution optional, or at least dependent on your ability to pursue legal action against the government individually. This is a complicated story about a ruling that fundamentally alters the function of the American legal system; for more details let’s turn to this short write up by Shawn Musgrave, published by The Intercept:
“No Right Is Safe.” SCOTUS Bars Judges From Reining in Trump
“Instead, federal courts may only use injunctions to block presidents and their administrations from violating the rights of the specific parties that filed suit. In effect, judges will have no ability to offer immediate relief to however many people outside the courtroom are suffering from illegal actions of the executive branch. The ruling is certain to spur more class-action lawsuits against the federal government, which are still allowed but carry significant procedural hurdles and additional costs.
“Today’s ruling allows the Executive to deny people rights that the Founders plainly wrote into our Constitution, so long as those individuals have not found a lawyer or asked a court in a particular manner to have their rights protected,” wrote Justice Ketanji Brown Jackson in a fiery dissent. Eliminating universal injunctions “requires judges to shrug and turn their backs to intermittent lawlessness,” Jackson wrote.”
Before we dive into the details that make this partisan ruling so ominous, I feel obligated to remind you again that I am not a lawyer, and even veteran legal observers believe the Trump v CASA decision is going to throw the American legal system into complete chaos. Given however that the “conservative” majority decision penned by Amy Cony Barrett effectively expands on the principles and methodology of the shadow docket ruling above, I’m inclined to assume we’re looking at a worst-case scenario for the rule of law in the United States. Responding to nationwide injunctions issued by three lower court orders to block a day one Trump executive order eliminating birthright citizenship as guaranteed by the Fourteenth Amendment, the Roberts Court simply banned nationwide injunctions.
Yes, you read that correctly; citing, I kid you not, the High Court in England at the time of America’s founding, the 6-3 fascist majority voted to strike down universal injunctions entirely. In a case substantively about Trump’s attempt to unlawfully rewrite the US constitution via executive order. After six separate lower courts found the Swine Emperor’s actions to be unconstitutional, for the extremely obvious reason that birthright citizenship is guaranteed in the Fourteenth Amendment of the US Constitution. No, really. For more details about what that means, let’s turn to Elie Mystal, writing for The Nation:
“However, though flawed, nationwide injunctions make sense when it comes to national issues involving civil and human rights: issues like, say, the Constitution’s very clearly stated definition of national citizenship. After all, one’s fundamental rights should not wildly change if they miss their exit on the interstate.
In one fell swoop, the Supreme Court has thrown that system into the shredder. Trump v. CASA takes away the ability of lower court judges to issue nationwide injunctions. Instead, lower courts are now limited to issuing rulings that only apply to the litigants who happen to be before them in their local court. Injunctions now must be narrowly tailored to give the active litigants only what they personally need, and nothing more. In other words, if Trump violates my Constitutional rights in New York, I can sue and potentially win. But if Trump violates your Constitutional rights in exactly the same way in New Jersey, you have to sue for yourself. Indeed, the ruling probably means that if Trump violates your constitutional rights in exactly the same way in New York, you have to bring a separate lawsuit in New York to defend your constitutional rights. Every person has to individually ask for their constitutional rights. It’s everyone for themselves, according to the Supreme Court. Everybody needs to lawyer up.
The decision means that some courts, districts, and states will still defend the concept of birthright citizenship, while others will not. That could mean whether or not a child born in America on or after June 27, 2025 is considered a citizen of the United States will depend on what state, or even county, that child happens to be born in.”
Naturally, it’s doesn’t take a scholar of American jurisprudence to recognize the patterns in the fascist majority’s legal machinations surrounding both of these rulings. As in the shadow docket decision, the Roberts Court actively avoided the substantive issue of whether or not the Trump regime can pretend the constitution doesn’t exist to deny citizenship to brown babies, and merely ruled that lower courts can’t functionally block him from doing so en masse. Then, presumably, they went to lunch without bothering to weigh in on whether or not the Fourteenth Amendment of the US Constitution still exists; it does. Furthermore, and as in the shadow docket ruling, you’re probably deluding yourself if you think the lawlessness this ruling is going to enable will stop at stripping citizenship from American babies, as Mystal once again notes:
“But that antebellum, neo-Confederate structure is what the Supreme Court brings back to us today. It’s fashionable to say that the court’s ruling is not really about birthright citizenship, because the legal question focused on the power to issue nationwide injunctions. But that sanewashing of the court’s opinion does not survive its first contact with reality. By taking away the ability of courts to enter nationwide injunctions in this case, the court is giving Trump carte blanche to violate the constitutional definition of citizenship in any district where a friendly Trump judge will allow him to. And, in practice, this ruling will extend to every other single issue where Trump has been stopped thanks to a nationwide injunction. Right on cue, Trump signaled today that he intends to move ahead with a slew of agenda items “that have been wrongly enjoined on a nationwide basis,” including policies targeting trans children, refugees, immigrants, and, yes, birthright citizenship.
Nationwide injunctions have been a thing for a long time. The court could have addressed the issue in a myriad of other cases (including, you know, any, where the Biden administration was subjected to a nationwide injunction). They chose to do so here, on this issue, where lifting the nationwide injunction will have the direct and immediate impact of letting Trump and Miller take away citizenship on a case-by-case basis. If ever there was a reason to have a nationwide injunction, it would be a situation where a president brazenly refuses to follow the most important amendment ever inserted into the Constitution. This opinion is about birthright citizenship, and more broadly about letting Trump yank us back to the 1850s without hindrance; claiming it’s only about nationwide injunctions is like claiming that the tail wags the dog.”
So let’s sum up what we’re looking at here, shall we? Over the course of a single week in June, the 6-3 fascist high Roberts Court openly signaled SCOTUS’s willingness to let the Trump regime ruthlessly violate the constitutional rights of immigrants, including children with a legal right to American citizenship, while simultaneously eliminating every other court in America’s ability to stop the government from violating anyone’s rights unless they can afford a lawyer and get a case to trial, twice. At the same time, the Trump administration publicly declared their intentions to immediately begin ignoring the law to traffic migrants to foreign concentration camps, strip citizenship from people born in the United States, defund Dem-controlled sanctuary cities who won’t help Trump illegally kidnap migrants, block access to gender affirming healthcare for trans people, and enforce unconstitutional funding cuts in the broader US government. And then the Court closed up shop for the term.
Fallout in the Pork Reich
As I’ve explained before, I’m not a psychic and analysis isn’t prophecy. Nobody knows how far John Roberts and the other five fascists on the Supreme Court are willing to go on behalf of a fascist president who would make himself Emperor if they’ll allow it. Roberts himself has been silent on the matter, and he offered no written opinions or explanations in either of the rulings we examined in this article. While the other “conservatives” on the court did offer an opinion in Trump v CASA and were quick to tout the merits of class action lawsuits to stop the government from violating our rights, even noted beer-loving rapist Brett Kavanaugh conceded that solution was imperfect and would likely still result in many people being unprotected by the courts. Speaking frankly, it’s simply hard to understand why the 6-3 fascist high Roberts Court would brazenly enable the Trumpenreich to gleefully violate the constitution temporarily, if they weren’t prepared to let them do so regardless of the irreparable harms that will almost certainly cause.
Perhaps the most telling expert opinions on what these rulings mean can be found in the dissents written by the three liberal justices on the Supreme Court. Writing in response to the court’s decision to grant the government emergency relief via the shadow docket, Justice Sonia Sotamayor warned that rewarding the regime’s lawlessness threatened “the rule of law.” In Trump v CASA, Sotamayor noted that “no right is safe in the new legal regime this court creates.” Justice Ketanji Brown Jackson wrote that “the court’s decision to permit the executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,” among many other alarming comments. Does it sound to you like either of these women, who are among the most accomplished legal minds in present-day America, are talking about immigration law or narrow procedural issues to you?
I think the best case scenario here is that the Roberts Court has enshrined the two-tiered nature of the American justice system, and whether or not you have rights anymore comes down to whether or not you’re financially able to to fight the regime in court. Unfortunately, I don’t think we’re living out the best case scenario and I’m genuinely afraid that the fundie fascist majority on the Supreme Court is happy to operate through legal sophistry, and regards our constitutionally-protected rights as mere suggestions when they conflict with Trump’s fascist agenda. Furthermore, while I don’t know whether the US Constitution exists in practice anymore or not, I can certainly tell you who doesn’t think it does: President Trump and the current US executive branch administration. As long as a 6-3 fascist high majority on the Supreme Court is willing to keep turning a blind eye to the Trump regime’s lawlessness, I’m not sure anyone else’s studied legal opinion on the matter means anything at all.
– Nina Illingworth
Anarcho-syndicalist writer, critic and analyst.
You can find my work at ninaillingworth.com, and on Mastodon.
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