Democracy Strikes Out
In Chief Justice John Roberts's opening statement at his confirmation hearing, he explained that judges are like baseball umpires. “Umpires don't make the rules,” he said. Their job is “to call balls and strikes.”
In the case of Trump v. Casa decided on June 27, it appears a majority of the Supreme Court called three strikes and you're out for American democracy.
Strike one: Chief Umpire Roberts cast the Supreme Court's deciding vote in the 2010 Citizens United case which allowed corporations and wealthy donors to spend unlimited sums on elections. President Barack Obama did not kick dust on Roberts' shoes to protest this blown call, but he did warn the decision “will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” So, it's proven. The largest contributor to President Donald Trump's 2024 campaign, Elon Musk, was given access to confidential government records and led the administration's efforts to shut down agencies in violation of the law.
Strike two: Roberts wrote the opinion for 2024's Trump v. United States case in which the president was granted absolute immunity “from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” In her scathing dissent, Justice Sonia Sotomayor notes that Alexander Hamilton made “an important distinction between 'the king of Great Britain,' who was 'sacred and inviolable,' and the 'President of the United States,' who 'would be amenable to personal punishment and disgrace.'” Sotomayor points out that under Roberts' ruling, a president who orders the Navy's Seal Team 6 to assassinate a political rival would be immune to prosecution. Ominously, she also suggests the president might be immune if they organize a military coup to hold on to power. If only President Richard Nixon could have had Roberts calling the balls and strikes in the Watergate Scandal.
Strike three: The 14th Amendment, adopted in 1868, ensures citizenship to “all persons born … in the United States, and subject to the jurisdiction thereof.” In the 1898 case of United States v. Wong Kim Ark, the Supreme Court held the amendment meant just what it said: Babies born in the United States are citizens whether or not their parents are. On his first day in office this year, Trump ordered that citizenship be denied if the baby's mother is in the country unlawfully or temporarily and if the baby's father is not a citizen or lawful permanent resident.
Federal district courts in Massachusetts, Maryland and Washington state issued injunctions against enforcement of Trump's order pending a decision on the merits. Appellate courts upheld the injunctions. Trump's Department of Justice appealed those decisions to the Supreme Court. Roberts appointed Justice Amy Coney Barrett to write the court's opinion. She in essence held that the lower court rulings delaying enforcement of the Trump order until the Supreme Court could rule ought not apply nationwide but only to the parties bringing suits.
Twenty-two states and two cities had sued to have Trump's order ruled unconstitutional. Presumably, the Supreme Court will make a ruling that applies in all 50 states some time in the indeterminate future. In the meantime, there could be cases where a baby born in one of the 22 states is a citizen, while another newborn with the same status in one of the other 28 states is not and can be deported. That's like saying the same pitch is a strike in Wrigley Field and a ball in Fenway Park.
In her dissent, Sotomayor warns that, even though birthright citizenship is guaranteed by the Constitution, “no right is safe in the new legal regime the Court creates.” Justice Ketanji Brown Jackson writes in her concurring dissent, “When the Government says 'do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,' what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution — please allow this.”
All this means, as Sotomayor points out, that some future administration “may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.” The majority of the court holds “absent cumbersome class-action litigation” that in many cases courts will be powerless to provide relief even for flagrantly unconstitutional governmental acts. Thus, Bill of Rights guarantees such as freedom of speech and freedom from unreasonable searches are “meaningful in name only for any individuals who are not parties to a lawsuit.”
Major League Baseball is testing a system using artificial intelligence to call balls and strikes rather than human umpires. Perhaps American democracy would be better served by using AI programmed to support our constitutional rights and democracy rather than the human justices now making the calls.
But, come on, that's not going to happen. So, where are we then? Unlimited amounts of money flow into federal election campaigns and undermine American democracy. Presidents can do whatever they want while in office with little fear of prosecution for breaking the law up to and including assassinating political opponents. And presidents can issue illegal orders overruling constitutional rights that will not be completely stopped unless and until the Supreme Court gets around to ruling on them.
What's left of our Constitution? Not much. Put those three calls together and, American democracy, you're outta here.
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