At “Courting Ridicule” (snyder.substack.com), Timothy Snyder warns that the issue of Trump’s eligibility for office risks the Supreme Court’s “mak[ing] itself ridiculous.” “We stand on the threshold of comedy already.” Too late; ominous-yet-funny has been a feature of the Court’s jurisprudence for years.
Snyder highlights the “originalism” and “intentionalism” (a/k/a “textualism”), which form the thinking, such as it is, of the Court’s six-member majority. (It’s important to distinguish between the Six and the three high-wattage minority of Sotomayor, Kagan, and Brown Jackson when talking about “the Court”.)
The inconsistency between the rhetoric of originalists/textualists/intentionalists (collectively, “Charlatans”) and their work product has long been a feature of the Court’s jurisprudence. Trump cases are merely the apotheosis of a 40-year intellectual fraud perpetrated by “conservatives”.
This is the perk of being in a branch of government beyond reach of meaningful checks and balances. Quibblers will say, Of course Supreme Court justices are subject to checks and balances. The Constitution (Art. III, Sec. 1) explicitly says so; they get to keep their job for life as long as they behave well.
True in a sense but, practically, that’s the barest check and balance. A Supreme Court justice would have to engage in egregious criminal conduct to be in breach of the standard. Further, removal for bad behavior requires the inherently political process of impeachment and conviction.
Given the Senate’s current configuration and the country’s febrile political environment, 67 votes for conviction are impossible, regardless of the facts, making checks and balances for the Court’s justices meaningless. Death is the public’s only remedy for low-quality work produced by the country’s highest court.
Snyder says the Supreme Court risks its reputation in Trump’s appeal of Anderson v. Griswold, where the Colorado Supreme Court disqualified him from that state’s ballot because he had engaged in insurrection on January 6. Unless, that is, the Charlatans stay faithful to their strict-constructionist conceit.
Snyder posits that, if they use the method they’ve long been inflicting on the country, the Charlatans’ analysis of Section 3 will make the outcome of the case inevitable. This suffers from two flaws: it overlooks the legal intricacies of Section 3 (covered elsewhere), and mistakenly presupposes that it matters to Charlatans.
The beauty of a lifetime appointment is not having to care what the public—the purported beneficiary of the Court’s work—thinks. Literally sealed off from the practical consequences of their rulings, a mere five (alas, today there are six) Charlatans can re-engineer in peace and safety a society of 330 million people.
Reports about the Court’s concern with its reputation are, therefore, misplaced. Pace Andrew Jackson, the Court is very much an instrument of state power, its members engaged in the same scrappy and underhanded assertions of—in this case uncontrolled—personal will that we see in the other branches of government.
Right as they are, the Charlatans’ critics cannot fathom the depths of shamelessness from which they expect plausible, law- and fact-based rulings. To see the Six for the culture warriors (vs. jurists) they are would be to saw off at the knees an entire mental construct of how the American system is set up.
Snyder believes “The Court is unlikely ever to hear a case of such simplicity [and, therefore, must] confirm the Colorado ruling. If the Court does otherwise, it will look silly.” Wishful thinking. Charlatans are expert at contriving complexity where there is none to get the outcome they want. And looking silly is of no concern them.
Bush v. Gore is the gold-plate standard for “silly”. There, five Charlatans appointed a president in a decision panned (even by its author who, years later, called it “a piece of shit”). Not one of the five faced impeachment for the obvious usurpation of the states’ and voters’ power own violation of Constitutional government.
Nor did criticism of that decision prevent multiple cases of future silliness: Citizens United, Rucho, Bruen, and Dobbs, to name a few. There is no evidence, then, that the Charlatans are affected by how their rulings are perceived. Outcomes, not consistently applied legal theory or method, drive their decisions.
Even if, as Snyder suggests, “a judgment [in the Trump case were] based not on law but on guesses” about a Trumper mob’s reaction to an adverse ruling would “dissolve” the “entire originalist pretense,” that dissolution would be of not import for the Charlatans.
None of this is to disagree with Snyder’s concern. To keep Trump on the ballot would be to legitimize his engagement in insurrection. By extension, it also would mean—were Trump to win in 2024—the Court’s active participation in fracturing a pillar of Constitutional government.
But, for all we know, the Charlatans, untouchable as they are, would have no problem with this. Their lives wouldn’t change a bit. Taxpayers would still have to feed them for life while enduring several more decades of their “silly” rulings masquerading as jurisprudence.
