Friday, August 21, 2026

Quis custodiet ipsos custodes?

The likeliest way to read this:
Chief Justice Roberts has issued an “administrative” stay In the ballroom case—which effectively allows Trump to keep doing what he’s doing while the full Court decides whether to let him keep working indefinitely while the case moves forward (which it probably will, given this intervention).
... is that Roberts never met a Presidential expansion of power he didn’t like.  An unlikely read would look at this: ... and wonder again if Roberts isn’t trying to avoid a head on collision with Trump in a case where Trump could create a true constitutional crisis, because he’s an idiot. And never met a crisis he didn’t like.*

The problem is that, as much as it claims to be a co-equal third branch of government, the courts are no such thing. Art. III doesn’t even give the Supreme Court its name; it only establishes a title of Chief Justice, much as Art. I describes a Speaker of the House (they perhaps had in mind the non-partisan office of the House of Commons. Whatever was envisioned, it wasn’t well-defined. The same is true of the office of “Chief Justice.”). Art. III only says there shall by a supreme court, and lesser courts, all as established by Congress. Art. III is far more “we’ll have a court system, too,” than it is even the outline of a blueprint. The judiciary is not set up as “coequal,” anymore than the Presidency is. Congress certifies the election of the President; and Congress can remove the President from office, basically on whatever grounds it chooses. The President has no such authority over Congress. The President is charged with executing the laws passed by Congress. He can veto a law, but Congress can override the veto. And if Congress doesn’t like the way he’s executing the laws, they can engage in oversight, up to and including removal from office. Trump presents the clearest need for that in American history; but I’m not holding my breath. The Constitution doesn’t make Congress this feckless. History did that.

In any case, I don’t think the President can do whatever he wants to the White House grounds without Congressional authorization, especially when it involves reallocating funds Congress authorized for other purposes (like the national parks). But I digress…

The Supreme Court is established by Congress.  It didn’t have its own building until 1935. Its jurisdiction is established by Congress. The appellate and trial courts are established by Congress. Congress could shrink the Supreme Court to 3, or expand it to 33. It can control the court’s procedures, determine when it meets, even take the building back. The court is not co-equal to Congress and the President. It is entirely a creature of statute, down to its name. And Congress writes those statutes.

The Court has no army, no police force, no arm of authority to enforce its rulings (the ruling is the judicial order; the opinion is why). In a sense, its orders are advisory. We follow them because we agree the judiciary is acting decently and in good order, and that we need a judicial system to provide and maintain justice (however well or poorly it does so). Some of the court’s rulings in the’50’s and’60’s were implemented only because the executive (Ike, JFK, LBJ) used military and police force to make it so. Without that, Brown v Board might just have been a nice idea. We don’t always agree about decency and good order, but the courts are stuck when some of us strongly disagree with them. And it’s worth noting that Brown v Board was an important ruling, but we needed the Civil Rights Act and the VRA to really make things happen. And yes, there’s a reason John Roberts spent his legal career trying to gut the VRA. But again, I digress….

That’s the way it ordinarily works. The court orders, the executive, if necessary, sees that the order is executed. That is, after all, the chief purpose of the office of the President according to Art. II. Trump, clearly, and beyond argument, doesn’t give a wet snap for Art. II.

So what if Trump asked Stalin’s apocryphal question: “How many troops does Roberts have?” No one imagines Ike or JFK or LBJ asking that. But Trump? Blanche would have the OLC produce an opinion in a heartbeat, and Trump would order the Marines to protect the construction site.

We can at least imagine him doing it.

Does Roberts want to allow Trump to continue construction of the ballroom? I think so. I don’t think he can get 4 more votes to raise it to a constitutional authority, à la presidential immunity.  But I think he can round up more than four votes for the proposition that Trump can do it until Congress says otherwise.

Which Congress needs to do in January, anyway. Trump is pilfering government funds for this vanity project, something else the Court may well allow as the prerogative of the “unitary executive.” There is a proposal to expand the Court to 13, equal to the number of appellate districts. It’s a sound argument, but the application should be held until at least 2029. In the meantime, Congress can impose a retirement age on the Court consistent with the lower courts, and an ethics oversight body.  Quis custodiet ipsos custodes? Congress does, in this case; and it’s high time they reclaimed that responsibility; and authority.

*To be clear, I don’t think Roberts read that tweet and thought “Oh shit!” But I wouldn’t be surprised if the Chief Justice has a legitimate concern, however small, that Trump redux might be willing to blunder into a constitutional crisis that would expose the Court’s pretensions to co-equal authority, and force it to rely on what has, so far, been a supine Congress that might not change enough in the Senate to make a difference. And then again, might change too much to make Roberts comfortable.

The joy of living in interesting times.
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2 comments:

  1. jim, some guy in iowa3:59 PM

    Modern conservatism is based on the concept the wrong side won every major war this country fought- from WW2 all the way back to the American Revolution.

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