Republican Courts Are Getting Ready to Party

Don't be fooled by a couple of setbacks for Trump. The GOP seized the courts, and it's time to use them.

Illustration by Donkey Hotey

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If you saw the news that Donald Trump suffered a couple of minor setbacks in the courts this week, you might be tempted to conclude that the system is operating as it should, restraining his more dangerous impulses and reinforcing the rule of law. That would be a mistake.

Here’s what’s really happening: Conservatives waged a decades-long campaign to seize control of courts at all levels but especially the United States Supreme Court, a campaign that has to count as one of the right’s greatest political triumphs in all of American history. As a new phase in the project has begun — using the power they worked so hard to grasp — they are demonstrating a kind of vulgar contempt for the institution they now control. It’s as though they laid siege to the palace, then upon seizing it began throwing their trash all over its marble floors.

Let’s review the recent news:

• President-elect Trump made a preposterous request of the Supreme Court, that it step in and forbid a New York state court from carrying out sentencing in Trump’s hush-money, where he was convicted on34 felony counts. He claimed they should do so on an utterly bonkers reading of the already bonkers immunity the court granted him for crimes he might like to commit in office, though this case does not involve crimes he committed in office and it will be concluded before he takes office again, not to mention the fact that the judge had already indicated he won’t be sentencing Trump to jail time or even probation. The high court rejected his request, but only by a 5-4 margin, with Justices Thomas, Alito, Gorsuch, and Kavanaugh voting to exempt Trump from even the most symbolic accountability for the crimes of which he was convicted.

• ABC News revealed that while the Supreme Court was considering this request, President-elect Trump and Justice Samuel Alito spoke by phone, supposedly to discuss one of Alito’s former clerks who is up for an administration job. Because Trump is personally checking references on applicants to administration positions, I guess? Nothing to see here.

• In North Carolina, the election for a seat on the state Supreme Court was won narrowly by incumbent Allison Riggs, a Democrat. Displeased with that outcome, the Republican-dominated court has forbidden the state from certifying the election, in response to a request by the Republican who lost to toss out 60,000 votes on a bogus legal theory. He has not been able to show that even a single one of those votes was illegally cast, but his allies on the court are clearly looking for a way to invalidate the results so they can expand their majority; the decision is pending.

• District judge Aileen Cannon, who has shown herself to be exceptional in her devotion to Trump even among the collection of lackeys and hacks he appointed to the federal bench, jumped up to prohibit the Justice Department from releasing special counsel Jack Smith’s report into Trump’s efforts to hide classified documents he had taken from the government and his attempt to overturn the 2020 election. As Mark Joseph Stern explains, “Cannon cannot do this,” because she no longer has jurisdiction over the case; “she is purporting to exercise authority that she just does not have.” The appeals court that actually has jurisdiction has overruled her, though it gave Trump time to appeal to the Supreme Court, which he surely will. There is no legal reason why Smith’s report should be hidden from the public, other than the fact that it will be embarrassing for him; that alone guarantees somewhere between four and six votes from his friendly justices.

The fact that Trump is not prevailing in every case does not lessen how appallingly brazen these kinds of moves are; he only loses when conservatives don’t see much to gain. When the Supreme Court rejected his request for them to intercede in the New York sentencing, it was not because he had no legal leg to stand on (though he did not), but because the stakes are so low; nothing will happen other than a day or two of “Trump Sentenced In Felony Case” headlines which will quickly be forgotten.

That created an opportunity to show some fake “independence,” but only a few of the justices care. Samuel Alito certainly doesn’t. Of course he’ll chat with Trump — and ask Trump to do him a favor by hiring one of his clerks — while deciding how to rule on Trump’s latest case. Why wouldn’t he? To cater to some outdated notion of judicial propriety, or appease the nattering whiners who complain when he takes an all-expense-paid vacation from a billionaire with interests before the court? Buzz off, losers.

Likewise, the conservatives on the North Carolina Supreme Court clearly aren’t going to be bound by what the voters chose. If they can find a way to hand that election to the Republican, they will. What’s the point of having power if you don’t use it?

What the courts are for

In the civics-class understanding of the courts, it is the one branch of government where objectivity reigns and disputes are adjudicated by learned men and women in a rule-bound forum where truth prevails. Because the courts can have the final word in almost every policy and political conflict, it is vital that the public accept their legitimacy, in both process and outcome.

To someone like Roberts, maintaining that legitimacy is vital precisely so that the courts may continue to advance the conservative cause. Periodic safety-valve releases in which the court rules against Trump are vital so that pressure can be lessened and the rest of the project may proceed apace.

In Roberts’s preferred world, the court would seek the same goals of solidifying Republican political control, restructuring American society around conservative values, and making right-wing policy change while hindering progressive policy change. But they’d do it with some subtlety and plausible deniability.

But to Alito, just as to Trump himself and his most ardent loyalists, the judiciary has no inherent legitimacy. The rules and norms that govern it are worthy of little but contempt if they get in the way of advancing the conservative cause. In state courts like the one in North Carolina, a similar sentiment is spreading.

This all has me thinking about a line from a brief opinion Antonin Scalia wrote when the Supreme Court issued the stay that halted vote counting in Florida during the dispute over the 2000 election. At the time, counties in Florida were rushing to complete recounts which Al Gore hoped would show that he won more votes than George W. Bush.

In explaining why the recounts had to cease immediately, Scalia wrote that allowing the counting to continue would do “irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” They hadn’t heard oral arguments yet, and the outcome of the election was ostensibly yet to be determined. But in reality, the fix was already in. So the court had to prevent votes from being counted, since if it turned out that Gore got more votes than Bush, that could be embarrassing for Bush when he became president, as the court was going to make sure he would. It was a moment when the mask of impartiality slipped, because it was all about power: The court’s conservatives wanted Bush to have the power of the presidency, and they had the power to give it to him.

What we’re seeing now is the fruit of the tree that has been growing since then. So don’t be fooled if now and then the Supreme Court fails to give Trump exactly what he asks for. They’re on the same team, pushing in the same direction. And in the coming months and years, there will be a flood of decisions at the federal and state level that show just how eager conservatives are to use the power they have.