Supreme Court becoming battleground for future

Bill Knight column for 5-11, 12 or 13, 2020

Court-watchers wondered about Justice Ruth Bader Ginsburg’s gall-bladder procedure last week, yet they’re also troubled by Supreme Court cases set to be argued this week and question whether the Court remains independent.

There’s “Committee on the Judiciary v. McGahn,” where Trump says he can shelter aides from obeying subpoenas from Congress despite its investigative authority; and “Trump v. Deutsche Bank,” “Trump v. Mazars USA” and “Trump v. Vance,” all of which have the President saying he’s shielded from inquiries into his businesses. In Vance, Trump says the New York prosecutor can’t get his tax returns because Presidents can’t be indicted while in office, though that stems from a Justice Department opinion on federal actions, neither law nor Constitutional language (although Vance’s office isn’t federal).

Also this week, in “U.S. House v. Mnuchin,” Trump claims he can spend public funds regardless of Congress’ explicit appropriations despite Justice Joseph Story a century ago writing that if Congress didn’t control spending, “the executive would possess an unbounded power over the public purse.”

All these cases touch on Trump’s pattern of unaccountability, which arguably ignores the Constitution’s separation of powers.

Meanwhile, Chief Justice John Roberts faces a request to examine Senate Majority Leader Mitch McConnell allegedly “fixing” federal courts by manipulating one judge’s resignation to nominate protégé and Fox News’ contributor Justin Walker to the bench. Roberts also received the high-profile resignation of James Dannenberg, a 38-year member of the Supreme Court Bar.

“You are doing far more – and far worse – than ‘calling balls and strikes’,” Dannenberg wrote. “You are allowing the Court to become an ‘errand boy’ for an administration that has little respect for the rule of law.”

This wave follows increasing concern about the Court losing respect and legitimacy. Last summer, Illinois’ Dick Durbin and four other Democratic Senators blasted the Court for being dominated by appointees picked by the Federalist Society and promoted by the NRA. Alluding to corporate and GOP interests prevailing on voting rights, environmental de-regulation, redistricting, limiting Medicaid to millions, and money in campaigns, their letter said, “The Supreme Court is not well, and the people know it.”

Elsewhere, Roberts rebuked Senate Minority Leader Chuck Schumer for criticism of the Court days after not commenting on Trump attacking Ginsburg and Justice Sonia Sotomayor and demanding they recuse themselves from “all Trump or Trump-related matters.”

Sotomayor panned the Court’s five conservative Justices for repeatedly letting Trump have “emergency stays” to enact controversial policies before the Court decides on their legality, noting that Trump has done so more than Presidents Bush and Obama, combined. She wrote, “With each successive application, cries of urgency ring increasingly hollow.”

Further, Justice Clarence Thomas’ wife Ginni is seeking to purge “disloyal” federal employees from government work, according to Axios.

Historically, Justices were loyal to the Constitution, not the President or party behind their appointment. The Court unanimously ruled Bill Clinton had to answer Paula Jones’ lawsuit accusing him of sexual improprieties, and unanimously rejected Nixon’s argument that he had absolute executive privilege, ordering the President to comply with a subpoena for White House tapes that ultimately contributed to his resignation.

Critics say today’s Court is no longer politically neutral, a change slow in coming but foreshadowed in McConnell blocking the 2016 nomination of Judge Merrick Garland in the hope that the election eights months later would install a Republican.

Ahead, the Court will rule on immigration (whether the White House can withhold funds to force states or cities to cooperate with federal authorities); the anti-corruption “emoluments” clause of the Constitution (accusing Trump of illegally enriching himself through his office); whether Trump has the power to fire anyone without cause in independent agencies such as the Consumer Financial Protection Bureau, the Securities and Exchange Commission, etc., ignoring precedent; women’s right to choose, the Affordable Care Act, and other oversight measures, such as Trump seeking to restrict the authority of the new Inspector General assigned to supervise the $2 trillion coronavirus relief package.

Faced with the hypocrisy of pretending to be impartial while giving Trump unprecedented power, one wonders about its extent.

“The Supreme Court must never, never be viewed as a partisan institution,” a nominee declared to the Senate Judiciary Committee.

That was in 2018, when Brett Kavanaugh was about to join the Court.

And yet…