The Supreme Court's Pandora's Box

The Roberts Court let Pandora out of the box, and now there seems to be no putting everything back in. First it was criminal immunity and the pass on prosecution given to presidents. Last Friday it was Casa, the birthright citizenship/nationwide injunction case, where Justice Amy Coney Barrett wrote that just because the president acted unconstitutionally, that didn’t mean the courts could tell him no, in essence taking away the best, quickest, broadest remedy that could be used against a president hell-bent on imposing his own policies on the country, whether or not—and it has been mostly not of late—the Constitution authorizes him to do that.

The big things are bad. Presidents can’t rewrite amendments to the U.S. Constitution—there is a process for doing that. But in 30 days, birthright citizenship will be gone, unless the Supreme Court, which has just left on vacation after delivering the bad news in Casa, decides to step back in. As Justice Sonia Sotomayor wrote, “The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along.”

It’s also the small things. Like the official White House account retweeting an absolutely disgusting image, associating Trump with the alligator and swamp-snake guarded prison Florida Governor Ron DeSantis has apparently built to house noncitizens who are being detained by ICE. Perhaps it’s by way of an apology to Trump for having the temerity to attempt a run at him in the primary.

Let’s be clear. It’s not funny or a joke. It’s not amusing in any way. It’s despicable. The 8th Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Trump is baiting people to challenge him, believing that the courts or at least the Court won’t rein him in. He is daring lawyers to sue him because he believes that where it matters to him politically, he will prevail. So far, he hasn’t been wrong about that too often.

Fox News feels the same way. Aaron Rupar posted this image on Twitter, noting that it was an actual chyron on Fox. This is one of those things Grandpa says that you might want to keep in the family, but here it is on national television.

Harvard Law Professor Jack Goldsmith wrote over the weekend that he sees Casa “as a larger victory for the Supreme Court.” He reasoned that the Court had made it “clear in ways that it never has before that it expects executive branch compliance with its opinions and judgments on a universal basis.” I’m not sure at what point in our history it wasn’t clear that the president is expected to comply with the Supreme Court’s decisions? Is this some newfound insight? I thought we were supposed to be guided only by history and tradition when it comes to interpreting the Constitution, and what’s more historical than the obligation to follow Supreme Court decisions? In footnote 18 to the Casa opinion, Justice Barrett wrote that she was relying on the solicitor general’s representation at oral argument that the executive branch would respect what the Court says, but we’ll see. I’m not optimistic that this president feels bound by what his lawyer tells the Court in argument if a decision in a case goes against him in a big way.

Beyond that important issue of compliance with the rule of law, there is something else at work here. Trump wants us to feel so completely downtrodden that we will not push back against anything he does. A prison guarded by alligators is something out of a Southern Gothic novel. It’s not what real presidents do. They also don’t do this, or rake in profits off of meme coin.

But Trump does. From the sublime to the ridiculous, he wants you to think he can do anything and get away with it. Like he did with this December 2024 post about perfume. Like he did with the big, bad, ugly budget bill that the country will now have to live with the consequences of because Republicans were too scared of Trump to vote it down. Trump is a classic bully dressed up in the mantle of the presidency, and we would do well to never forget that.

What it means for us is that no matter how awful his actions look and how awful they make our country look, we cannot give up. Don’t let him make you feel hopeless or powerless. Remember that the ultimate power in this country belongs to us, to the voters. Our job is to confront the lunacy of this alligator swamp administration and commit to getting to work on the coming election.

Thanks for reading Civil Discourse. Your paid subscriptions make it possible for me to dedicate the time and resources necessary to researching and writing the newsletter. I’m grateful for your support.

We’re in this together,

Joyce

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