Court Legitimacy Is Real

 

Professor Vladeck:

As noted below, there are two basic problems with the brief. The first is that it’s asking the Court to do something that the Court … has no power to do. Without at least some view as to the constitutionality of the statute, there’s no basis for the Court to do anything to prevent the statute’s operative provisions from going into effect on January 19. The second is that the brief is, both in that ask and elsewhere, relying on political considerations wholly divorced from law—an ominous harbinger not just from the incoming President, but from his nominee to represent the United States (and not just Trump) before the Supreme Court. I’ve written before about the extent to which at least some of the Court’s legal analysis is necessarily suffused with—if not influenced by—high politics. But this isn’t that; it’s pure politics, all the way down. And the ridiculous puffery aside, that’s quite an opening salvo for the Court to receive from the President-Elect and Solicitor General-designate.

Yes, tout le monde (or the internet, at least), thinks 5 Supreme Court justices would side with Trump and “suspend” the Tik Tok statute for the President-elect to…do something. My go-to here has become the ST:NG episode where “Q” has lost his magical powers, but is nonetheless called on to offer a solution to a problem of impending doom. His solution is to “change the gravitational constant of the universe,” something he can no longer do. If the Supremes were to grant Trump’s request, it would be like changing the gravitational constant of the universe. They can’t do it; and even to suggest it, would finally be the Constitutional crisis we’ve all been threatened with for all these years.

Courts have no authority to change laws just because some judge doesn’t like them. Nor can they suspend laws “just because.” Yes, it sometimes looks like they do so anyway (and I wouldn’t say they don’t), but at a minimum there must be some recognizable basis for the action. Trump doesn’t present one here. Oh, he presents something. The brief:

… leads with the claim that “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.” And building on that theme, it urges the Court, repeatedly, to “stay” the statute’s January 19 effective date—presumably to buy time for the incoming President to do … something … to make the underlying dispute go away (the brief is rather coy about what, exactly, that something might be—or when it would happen). 

Critically, although the brief alludes to both First Amendment and Article II problems with the TikTok statute, it does not actually argue that the statute is unconstitutional (hence the nominal designation of the brief as being in support of “neither party”). It just argues that the questions are significant enough to warrant a temporary (although, it should be noted, entirely open-ended) pause in the statute’s operation.

That may almost sound like a legal argument. It’s not. It’s gibberish. It’s like teaching a dog to talk. An astounding accomplishment, that someone would present this to the highest Court in the land. But it’s still meaningless.

There’s nothing Trump can do to obviate this statute except to get Congress to repeal it. He’s not asking, in other words, for relief the Court can grant. Yes, the Court gave itself the authority to invent new Presidential powers, on largely the same argument it eviscerated in overruling Roe (irony alert!), so the legitimacy of the Roberts Court is already on thin ice. But the CJ reportedly was quite shocked the country didn’t reward him with accolades for penning Trump v US, and was surprised that decision was so roundly criticized by both legal experts and laypeople. Sort of like Roe was received (irony alert!) Granting Trump’s request in this brief would dispose of both the legitimacy of this Court, but also any claim to being a co-equal branch of government. Granting Trump’s ask would set the courts up (what’s true for one is true for all) as a super-legislature, with the final word on ALL laws, not just those arguably unconstitutional.

Per Article III, Congress still holds the whip hand, and they would whip that hand very hard, indeed in response. You want to piss off even this incoming Congress? Have the Court tell them: “We”ll decide from now on which laws take effect, and which don’t, purely on the basis of how 5 unelected people feel.”

Trump’s already a lame duck. How much lamer does he want to be?

The Court, IOW, doesn’t have the authority Trump is asking them to exercise, and doesn’t want it. The entire “co-equal” argument is bafflegab based on not examining the foundations it rests on. The Court is not really co-equal because its legitimacy rests on its inferior power status. It is an arbitrator, a mediator, a judge within the limits of the law and common law traditions. Even Marbury gave the Court limited authority, which it exercised only over federal law until the 14th Amendment. If the Roberts Court were to decide: “Well, it’s Trump, and we’re the Supreme Court, bitchez!,” it would be the end of the Roberts Court and the collapse of the U.S. Judiciary. I mean, how could it be considered “legitimate” ever again?

The Constitution, after all, establishes a “Supreme Court” in name and position only. Congress has full authority to set the jurisdiction of that Court, and to trim its authority, up to and including a Constitutional amendment to overrule Marbury. I still think such an amendment is possible, even likely, to overturn Trump v US. But if the Court throws away all claims to legitimacy on the altar of Trump, any response is possible.

The 14th Amendment, after all, was a response to Dred Scott. And the 16th overruled Pollock v Farmers Loan and Trust. It’s happened before, IOW.

N.B. Professor Vladeck’s analysis is a bit more closely reasoned than mine, partly because I’m addressing a slightly different issue:

Trump’s argument is that the Court should “stay” the January 19 effective date because the statute raises constitutional questions—questions that might be mooted by the notably non-specific political solution the brief suggests Trump would pursue. And therein lies the rub: The Court has no authority to block the statute solely because something that might happen on some un-specific future date could moot the constitutional questions it presents. Its authority depends upon at least an interim determination that the statute is unconstitutional. To argue for a pause without any constitutional determination is not merely to inject politics into a legal dispute; it’s to ask for the law to take a backseat to the politics altogether.

The relief Trump is asking for (parties before the court must ask for “relief.” It’s a legal term with certain restraints on what the court can do.). As the Professor points out, the court can’t act on what damages (another legal term closely tied to the legal concept of “relief”) the statute might cause the party in the future.(I have to add here, Trump isn’t even claiming damages. What he’s asking for is more like injunctive relief, but as Professor Vladeck points out, Trump isn’t even being that specific.) The conclusion, however, is not so different from mine: to take this action the court would effectively establish itself as the final decider of whether or not Congressional laws take effect, based solely on how five justices (at least) think they might work. That really can’t be the court’s job.

I know everyone wants to jump whenever Trump says “FROG!,” but we’ve really got to realize that just because Trump says it, doesn’t make it legitimate; or a legitimate concern.

Adding: This, for example:

The second is that the brief is, both in that ask and elsewhere, relying on political considerations wholly divorced from law—an ominous harbinger not just from the incoming President, but from his nominee to represent the United States (and not just Trump) before the Supreme Court. I’ve written before about the extent to which at least some of the Court’s legal analysis is necessarily suffused with—if not influenced by—high politics.

I understand how this is an “ominous harbinger,” but I think it presages Trump’s complete incompetence before the Court for at least the next four years. Yes, Roberts freaked out over the criminal prosecution of a former president; but making arguments like this on behalf of the U.S. government via the Solicitor General is not making arguments on behalf of a former President. And that will make all the difference.