In A Nutshell

Trump’s Utterly Bizarre Message to SCOTUS in the TikTok Casehttps://t.co/pjZq1Sgb6s

— The Bulwark (@BulwarkOnline) January 9, 2025

During normal times, the Supreme Court would treat this rather embarrassing piece of legal writing as a throwaway. It certainly deserves to be laughed out of court and mocked in the court of public opinion. But these are not normal times, and this is not a normal Supreme Court majority. After all, last summer it gifted Trump the constitutional right to commit crimes using the powers of the Oval Office—a right that appears nowhere in the Constitution itself and contradicts its text. Yet like Trump himself under Trump v. U.S., the justices are unaccountable, and they know it—even if they violate the Constitution itself.

Justice Alito thinks Congress has no authority to establish an enforceable ethics code over the Supreme Court. This despite the fact Congress has explicit Constitutional authority over the President (Art. II), including the power to remove the officeholder through impeachment; the same authority over federal judges (including Supreme Court Justices); but Congress alone has the authority to police its own membership (stated in Art. I).

And Art. III gives Congress authority to establish the federal judiciary, with one Supreme Court with a Chief Justice. But these are titles only. Congress establishes the size of the court and the jurisdiction of the court, which means it determines what cases the court hears, and what control the Court has over its own docket. It can also override the Court’s Marbury granted constitutional determinations with constitutional amendments (which must originate in Congress), as it has at least twice (the 14th and 22nd Amendments). The idea that the Court is co-equal to Congress is farcical. The idea the Congress cannot enforce ethical standards on the Court is as ludicrous as saying Congress cannot impeach the President for bribery. But the Court very nearly said that in Trump v US (and arguably said the President can’t be prosecuted for bribery).

In other words, the Justices are unaccountable only because they say they are. Their accountability traditionally lay in their reliance on the other branches of government supporting their rulings; in law enforcement or accepting that laws are unenforceable because they are declared unconstitutional.  Erode that support and suddenly the Court is on an ocean side cliff about to collapse into the sea. But Chief Justice Roberts just got through blaming everyone else for that situation. He may imagine he is replicating the Warren Court in reverse, but even Justice Warren held the Brown decision until he got all nine justices to accept it. And the Warren Court expanded civil and legal rights, protecting more Americans from government. The Roberts Court is hellbent on reversing those protections. 

Roberts presides over a corrupt court (Thomas; Alito) that thumbs its nose at the rest of government and declares itself first among equals. While simultaneously demanding fealty and even support for all its rulings, no matter how poorly grounded they are in law. The Warren Court may have been radical, but it was the Berger Court that gave us the sound result but arguable legal reasoning of Roe which the Roberts Court overturned with even weaker legal arguments. And then, with flimsier legal analysis than Roe or Dobbs, handed down Trump v. U.S., which apparently the CJ thinks the country should thank him for. Even though it outraged every one to the left of MAGA.

Will the rubber band snap back? It has to. The Supreme Court is not first among equals.. It’s not even co-equal. It has the authority Congress grants and the people (partly through their representatives) recognizes. Nothing more. Sooner or later the Court will have to be reminded of that fact. And that realignment can be enlightening; or it can be ugly. 

My crystal ball is cloudy. 🔮 The rapprochement is inevitable. How it comes remains to be seen.