The Supreme Court’s majority – Justices Roberts, Thomas, Alito, Gorsuch, Kavanaugh and Barrett have granted Trump powers that neither the Constitution nor Congress gave him. They let him:
- Freeze money Congress appropriated for foreign aid while HIV and drug-resistant tuberculosis were spreading unchecked in countries reliant on US medications.
- Deport immigrants without due process.
- Fire the FTCCommissioner and other federal employees without cause, which is prohibited by the legislation that created the FTC.
- Dismantle federal agencies protected by Congress. Trump’s Justices lifted a lower court order that blocked sweeping layoffs of federal workers at nearly two dozen agencies as part of Trump’s plan to drastically cut the size of the government.
- Ignore more than 40 nationwide federal court injunctions against his unconstitutional executive orders.
- Bargain away America’s interest for his personal profit.
- Force social media companies to remove information in violation of the First Amendment.
- Allow ICE to stop and investigate immigrants based on race.
- Pardon and set free all January 6 convicted prisoners in violation of the president’s duty to serve the “the public welfare.” Trump’s Justices held that neither Congress nor the courts can interfere Trump’s pardon power. Ironically, they justified their holding by worrying that presidents might be chilled from taking bold action and impair their effectiveness, which presumes there will be other presidents as pernicious as Trump. However, as Justice Frankfurter held, “Constitutional adjudication does not thrive on conjuring up horrible possibilities that … won’t happen again in the real world.”
- Delay his criminal trials until after the 2024 election. By contrast, it took the Roberts’s court just 16 days to decide Nixon wasn’t immune from prosecution and one day to make Republican George W. Bush President instead of Al Gore.
So why did Trump’s Justices violate their Constitutional oaths to administer justice impartially, … and without favoring any person? (Notably, the Constitution did not say, “except for Donald Trump.”)
The answer may seem like a conspiracy theory, but judge for yourself.
Leonard Leo was Co-Chairman of the ultra -conservative Federalist Society. Leo spent $1.6 billion to mastermind the appointments of Trump’s Justices to the Supreme Court to turn their priorities into law. At one point Justice Thomas joked that Leo was the “number 3 most powerful person in the world.
Leo’s priorities were:
- Keeping Trump in office: Trump’s Justices complied by giving him broad immunity from criminal prosecution and delaying his DC criminal trial until after the 2024 election. In contrast, it took the Supreme Court just 16 days to unanimously decide that Nixon wasn’t immune from prosecution and one day to decide Bush v. Gore, giving Bush the presidency.
Because a president has no immunity for unofficial acts, the Justices remanded the case to the District Court to decide – believe it or not — whether January 6 and trying to stop the certification of electors were official or unofficial acts even though four lower court judges had concluded that Trump was not entitled to immunity from prosecution of the charges in the indictment. Trump’s Justices ignored the Court’s own precedent that a trial court’s factual findings are taken as presumptive unless they are clearly erroneous, which the court did not specify.
- Another Leo priority was rolling back anti-discrimination protections in voting, including the ability of state legislatures to racially gerrymander to win elections. Trump’s Justices didn’t let Leo down here. In Alexander v. South Carolina NAACP they upheld the South Carolina Republican legislature’s right to move 60% of Black voters from their Congressional district into a White-denominated district to ensure the election of the Republican candidate.
- Leo’s third priority was the deregulation ofcorporations. Trump’s Justices came on board. In Loper Bright Enterprises v. Raimondo they overturned their own precedent that held that courts should defer to an executive agency’s interpretation of ambiguous legislation. No longer. The justices held that the courts must decide whether an agency’s interpretation is correct. The holding transferred an enormous amount of policymaking from the federal agencies to the Judiciary which lacks the personnel to do the job. It was an indirect form of deregulation. The case unleashed a slew of corporate lawsuits challenging agency interpretations.
- Leo a also wanted torestrict access to abortion. He found easy fodder in his friends Clarence Thomas, Samuel Alito and Donald Trump, who was then courting Christian Evangelists. They were and joined by the other Trump Justices in deciding Dobbs v. Jackson Women’s Health Organization which held that there’s no right to abortion in the Constitution.
It’s not a stretch to conclude that these Justices were conflicted since they repeatedly ruled in favor of their patron’s priorities rather than what the Constitution required. Indeed, in Caperton v. Massey the Supreme Court held that every case that tempts a judge not to be impartial “denies…the due process of law.”
So, although it would be novel, it would make sense for the three Justices without pernicious loyalties to Leo to rehear the Supreme Court’s decisions where Trump’s Justices subverted the Constitution to turn Leo’s priorities into law.
