Thanks again for this reporting, Gabe. It was written between the lines, but the change in tone of the justices' words doesn't necessarily mean they have a change of heart on Trump. I would say it much more has to do with the exponentially increased absurdity of what they are being given to consider this term. Had they accepted the arguments they were given, it would turn the court into even more of a farce than it already is.
But if that was the only explanation, how do we interpret the decision to grant a president much more immunity only a short while ago? Where were his appointees' pointed questions when Sotomayor, Kagan, and Jackson were asking all of the obvious horrifying questions, like what if a president orders an assassination? Did Gorsuch, Kavanaugh and Barrett have as much imagination then as they do now about how presidential power could be abused? In the immunity case, these same justices who are now grilling Trump's lawyers were remarkably deferential to expansive claims of executive power. Gorsuch focused on protecting "official acts" from prosecution, Kavanaugh worried about chilling future presidents, and Barrett seemed more concerned with procedural questions than the substantive dangers Sotomayor was highlighting. Their skepticism appears highly selective, but this does indicate a major shift that can't be fully explained by the quality of arguments being presented to them.
I also just want to put into context how crazy it is that THIS court isn't Trumpy enough for Trump. We're talking about a Supreme Court that should already be considered illegitimate because it has no relationship to voters' opinions on who placed the justices there. Remember that Republicans told us to "let the American people decide" when they blocked Obama from filling Scalia's seat for nearly a year, claiming it was too close to an election. Then they rammed through Barrett's confirmation just weeks before the 2020 election, abandoning their own stated principle the moment it became inconvenient. This was orchestrated by Mitch McConnell, who was ironically the least popular senator with his own constituents among all 100 senators while making these pleas about listening to the American people. Republicans argued it would be unfair for Obama to get a third Supreme Court pick in eight years, then turned around and crammed three appointments into Trump's four-year term. The result is a court where a president who lost the popular vote twice was able to appoint one-third of the justices, backed by a Senate majority representing far fewer Americans than the minority party, and confirmed by senators whose states collectively cast millions fewer votes than the states represented by the opposing senators. This entire saga has done more to harm the institution of the court than any sitting justices could. This is the illegitimate Supreme Court that Trump himself created, and somehow even this rigged institution isn't subservient enough for his tastes.
We need to reform the process by which justices are selected and how long they serve. Term limits of 18 years would ensure each president gets to appoint two justices per term, creating more regular turnover and reducing the incentive to nominate younger ideologues who will serve for decades. We should expand the court to 13 justices to match the number of circuit courts and dilute the outsized impact of Trump's appointments. The confirmation process should require a supermajority in the Senate, forcing presidents to nominate more moderate candidates who can actually build consensus. We could implement a lottery system where lower court judges are randomly selected from a pool of highly qualified candidates, removing political calculation from the selection entirely. Mandatory retirement ages would prevent justices from timing their departures for maximum political impact. These reforms would restore the court's legitimacy by ensuring it actually reflects the democratic will, rather than the accidents of political timing and Senate math.
I respect what this article is trying to say. But I hate that we’ve reached a point where the court occasionally saying no to Trump’s most damaging instincts is seen as some kind of signal that everything is okay. Meanwhile, SCOTUS is slow-walking a bunch of cases, handed Trump immunity, and seems to have no concern or urgency for Trump’s lack of due process for hundreds of immigrants. SCOTUS is doing the bare minimum, and this is our great hope? Ugghhhh.
It’s a tiny band-aid on the gaping wound of presidential immunity that SCOTUS inflicted on us. But it’s also better than nothing and possibly a sign that they’re waking up to ugly realities.
From my perspective, this is balance of power in action. Just because Trump appointed the justices does not mean that they should rubber stamp all that he wants to do. I am some what of a Trump supporter; however, I am thrilled to hear that he is being resisted in some of what he wants to do. The fact that he is raging against them is evidence that he needs to be reined in.
When it comes to the relationship between the courts and Trump, I get this pesky little voice in my head that keeps harping these seven words: "SCOTUS gave immunity. What did they expect?"
Trump’s attack on the judiciary is straight from the fascism handbook. It’s worth noting House Republicans added an amendment to the “Big Beautiful Bill” they narrowly passed that further attacks the judiciary. From what I found online: “The amendment would limit a court's ability to enforce contempt findings, particularly against the government.
Specifically, it would require plaintiffs seeking to enforce injunctions or restraining orders against the government to post a bond before the court could enforce contempt citations for violations. Opponents argue that this amendment would effectively cripple the courts' ability to ensure government compliance with the law. They argue it could allow the government to disregard court orders without consequence, undermining the rule of law and potentially harming individuals and the public.”
I was thinking of this amendment in the BBB, too, as I read Gabe's piece this morning. It already feels like this administration is defying court orders without consequences.
It is always fascinating to hear Supreme Court arguments and try and discern what a decision will be. Most Courts, mine included, try to remain opaque until they have fully considered all sides of a matter. Very rarely do we rule from the bench. The results of this case will be interesting.
Can someone further explain the Justice Barrett exchange? She was asking whether or not the administration would follow a circuit court order circuit wide or just for the specific individuals in question and he said it is general practice that it is followed in that circuits jurisdiction...why did she respond "Really" in disbelief? I'm not following the underlying tone and reasons of that exchange.
JUSTICE BARRETT: General Sauer, I want to ask you about a potential tension -- well, no, not potential tension, an actual tension that I see in answers that you gave to Justice Kavanaugh and Justice Kagan. You resisted Justice Kagan when she asked you whether the government would obey within the Second Circuit a precedent -- I'm distinguishing between opinions and judgments here. Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York because you might disagree with the opinion?
GENERAL SAUER: Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice. It is -- and that is not a new policy. That's --
JUSTICE BARRETT: This administration's practice or the longstanding practice of the federal government? And I'm not talking about in the Fourth Circuit are you going to respect a Second Circuit. I'm talking about within the Second Circuit. And can you say is that this administration's practice or a longstanding one?
GENERAL SAUER: As I understand it, longstanding --
JUSTICE BARRETT: Really?
GENERAL SAUER: -- policy of the Department of Justice, yes, that we generally -- as it was phrased to me, generally respect circuit precedent but not necessarily in every case. And certain -- some examples might be a situation where we're litigating to try and get that circuit precedent overruled and so forth.
JUSTICE BARRETT: Well, okay. So I'm not -- I'm not talking about a situation in which, you know, the Second Circuit has a case from 1955 and you think it's time for it to be challenged. That's not what I'm talking about. I'm talking about in this kind of situation. I'm talking about this week the Second Circuit holds that the executive order is unconstitutional, and then what do you do the next day or the next week?
GENERAL SAUER: Generally, we follow that.
JUSTICE BARRETT: So you're still saying "generally."
GENERAL SAUER: Yes.
JUSTICE BARRETT: And you still think that it's generally the policy, longstanding policy, of the federal government to take that approach?
GENERAL SAUER: That is my understanding.
JUSTICE BARRETT: Okay. So -- but it sounds to me like you accept a Cooper versus Aaron kind of situation for the Supreme Court but not for, say, the Second Circuit?
GENERAL SAUER: I would say --
JUSTICE BARRETT: So you would respect the opinions and the judgments of the Supreme Court, and you're saying you would respect the judgment but not necessarily the opinion of a lower court.
"Cooper v. Aaron, 358 U.S. 1 (1958), was a landmark decision of the Supreme Court of the United States that denied the school board of Little Rock, Arkansas the right to delay racial desegregation for 30 months. On September 12, 1958, the Warren Court delivered a decision that held that the states are bound by the Court's decisions and must enforce them even if the states disagree with them, asserting the judicial supremacy established in Marbury v. Madison (1803)."
Ahhh. Marbury v. Madison. This case came to mind at the outset of the current case before the court--but I had yet seen/heard it referenced. Maybe I'm not adequately observant (??). Thanks Emily. I now feel validated in my thoughts.
"General practice" means "not every time," which is why she responded in disbelief. As in, "sometimes the federal government doesn't consider a lower federal court ruling to be about everyone in that court's jurisdiction."
Thanks again for this reporting, Gabe. It was written between the lines, but the change in tone of the justices' words doesn't necessarily mean they have a change of heart on Trump. I would say it much more has to do with the exponentially increased absurdity of what they are being given to consider this term. Had they accepted the arguments they were given, it would turn the court into even more of a farce than it already is.
But if that was the only explanation, how do we interpret the decision to grant a president much more immunity only a short while ago? Where were his appointees' pointed questions when Sotomayor, Kagan, and Jackson were asking all of the obvious horrifying questions, like what if a president orders an assassination? Did Gorsuch, Kavanaugh and Barrett have as much imagination then as they do now about how presidential power could be abused? In the immunity case, these same justices who are now grilling Trump's lawyers were remarkably deferential to expansive claims of executive power. Gorsuch focused on protecting "official acts" from prosecution, Kavanaugh worried about chilling future presidents, and Barrett seemed more concerned with procedural questions than the substantive dangers Sotomayor was highlighting. Their skepticism appears highly selective, but this does indicate a major shift that can't be fully explained by the quality of arguments being presented to them.
I also just want to put into context how crazy it is that THIS court isn't Trumpy enough for Trump. We're talking about a Supreme Court that should already be considered illegitimate because it has no relationship to voters' opinions on who placed the justices there. Remember that Republicans told us to "let the American people decide" when they blocked Obama from filling Scalia's seat for nearly a year, claiming it was too close to an election. Then they rammed through Barrett's confirmation just weeks before the 2020 election, abandoning their own stated principle the moment it became inconvenient. This was orchestrated by Mitch McConnell, who was ironically the least popular senator with his own constituents among all 100 senators while making these pleas about listening to the American people. Republicans argued it would be unfair for Obama to get a third Supreme Court pick in eight years, then turned around and crammed three appointments into Trump's four-year term. The result is a court where a president who lost the popular vote twice was able to appoint one-third of the justices, backed by a Senate majority representing far fewer Americans than the minority party, and confirmed by senators whose states collectively cast millions fewer votes than the states represented by the opposing senators. This entire saga has done more to harm the institution of the court than any sitting justices could. This is the illegitimate Supreme Court that Trump himself created, and somehow even this rigged institution isn't subservient enough for his tastes.
We need to reform the process by which justices are selected and how long they serve. Term limits of 18 years would ensure each president gets to appoint two justices per term, creating more regular turnover and reducing the incentive to nominate younger ideologues who will serve for decades. We should expand the court to 13 justices to match the number of circuit courts and dilute the outsized impact of Trump's appointments. The confirmation process should require a supermajority in the Senate, forcing presidents to nominate more moderate candidates who can actually build consensus. We could implement a lottery system where lower court judges are randomly selected from a pool of highly qualified candidates, removing political calculation from the selection entirely. Mandatory retirement ages would prevent justices from timing their departures for maximum political impact. These reforms would restore the court's legitimacy by ensuring it actually reflects the democratic will, rather than the accidents of political timing and Senate math.
Thank you for this. You have given me a smidgen of hope in these trying days
I respect what this article is trying to say. But I hate that we’ve reached a point where the court occasionally saying no to Trump’s most damaging instincts is seen as some kind of signal that everything is okay. Meanwhile, SCOTUS is slow-walking a bunch of cases, handed Trump immunity, and seems to have no concern or urgency for Trump’s lack of due process for hundreds of immigrants. SCOTUS is doing the bare minimum, and this is our great hope? Ugghhhh.
It’s a tiny band-aid on the gaping wound of presidential immunity that SCOTUS inflicted on us. But it’s also better than nothing and possibly a sign that they’re waking up to ugly realities.
From my perspective, this is balance of power in action. Just because Trump appointed the justices does not mean that they should rubber stamp all that he wants to do. I am some what of a Trump supporter; however, I am thrilled to hear that he is being resisted in some of what he wants to do. The fact that he is raging against them is evidence that he needs to be reined in.
When it comes to the relationship between the courts and Trump, I get this pesky little voice in my head that keeps harping these seven words: "SCOTUS gave immunity. What did they expect?"
Trump’s attack on the judiciary is straight from the fascism handbook. It’s worth noting House Republicans added an amendment to the “Big Beautiful Bill” they narrowly passed that further attacks the judiciary. From what I found online: “The amendment would limit a court's ability to enforce contempt findings, particularly against the government.
Specifically, it would require plaintiffs seeking to enforce injunctions or restraining orders against the government to post a bond before the court could enforce contempt citations for violations. Opponents argue that this amendment would effectively cripple the courts' ability to ensure government compliance with the law. They argue it could allow the government to disregard court orders without consequence, undermining the rule of law and potentially harming individuals and the public.”
I was thinking of this amendment in the BBB, too, as I read Gabe's piece this morning. It already feels like this administration is defying court orders without consequences.
Thank you for this glimmer of sunshine on this bleak day.
It is always fascinating to hear Supreme Court arguments and try and discern what a decision will be. Most Courts, mine included, try to remain opaque until they have fully considered all sides of a matter. Very rarely do we rule from the bench. The results of this case will be interesting.
A glimmer of hope. Thank you, Gabe 🙏🏻
Makes me harbor hope, thank you. Even Kavanaugh? That would be encouraging.
Great as usual
Can someone further explain the Justice Barrett exchange? She was asking whether or not the administration would follow a circuit court order circuit wide or just for the specific individuals in question and he said it is general practice that it is followed in that circuits jurisdiction...why did she respond "Really" in disbelief? I'm not following the underlying tone and reasons of that exchange.
This extended exchange from the transcript might help: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2024/24a884_c07d.pdf The larger context is her digging into the claim that it's been the DOJ's longstanding policy to not respect lower court opinions.
JUSTICE BARRETT: General Sauer, I want to ask you about a potential tension -- well, no, not potential tension, an actual tension that I see in answers that you gave to Justice Kavanaugh and Justice Kagan. You resisted Justice Kagan when she asked you whether the government would obey within the Second Circuit a precedent -- I'm distinguishing between opinions and judgments here. Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York because you might disagree with the opinion?
GENERAL SAUER: Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice. It is -- and that is not a new policy. That's --
JUSTICE BARRETT: This administration's practice or the longstanding practice of the federal government? And I'm not talking about in the Fourth Circuit are you going to respect a Second Circuit. I'm talking about within the Second Circuit. And can you say is that this administration's practice or a longstanding one?
GENERAL SAUER: As I understand it, longstanding --
JUSTICE BARRETT: Really?
GENERAL SAUER: -- policy of the Department of Justice, yes, that we generally -- as it was phrased to me, generally respect circuit precedent but not necessarily in every case. And certain -- some examples might be a situation where we're litigating to try and get that circuit precedent overruled and so forth.
JUSTICE BARRETT: Well, okay. So I'm not -- I'm not talking about a situation in which, you know, the Second Circuit has a case from 1955 and you think it's time for it to be challenged. That's not what I'm talking about. I'm talking about in this kind of situation. I'm talking about this week the Second Circuit holds that the executive order is unconstitutional, and then what do you do the next day or the next week?
GENERAL SAUER: Generally, we follow that.
JUSTICE BARRETT: So you're still saying "generally."
GENERAL SAUER: Yes.
JUSTICE BARRETT: And you still think that it's generally the policy, longstanding policy, of the federal government to take that approach?
GENERAL SAUER: That is my understanding.
JUSTICE BARRETT: Okay. So -- but it sounds to me like you accept a Cooper versus Aaron kind of situation for the Supreme Court but not for, say, the Second Circuit?
GENERAL SAUER: I would say --
JUSTICE BARRETT: So you would respect the opinions and the judgments of the Supreme Court, and you're saying you would respect the judgment but not necessarily the opinion of a lower court.
"Cooper v. Aaron, 358 U.S. 1 (1958), was a landmark decision of the Supreme Court of the United States that denied the school board of Little Rock, Arkansas the right to delay racial desegregation for 30 months. On September 12, 1958, the Warren Court delivered a decision that held that the states are bound by the Court's decisions and must enforce them even if the states disagree with them, asserting the judicial supremacy established in Marbury v. Madison (1803)."
https://en.wikipedia.org/wiki/Cooper_v._Aaron
Ahhh. Marbury v. Madison. This case came to mind at the outset of the current case before the court--but I had yet seen/heard it referenced. Maybe I'm not adequately observant (??). Thanks Emily. I now feel validated in my thoughts.
"General practice" means "not every time," which is why she responded in disbelief. As in, "sometimes the federal government doesn't consider a lower federal court ruling to be about everyone in that court's jurisdiction."