False Equivalencies
Are Clear Warnings
The decisions of our Supreme Court are important. And consequential.
One weakness in the Constitution was its lack of detail regarding the judiciary. It did not delineate the exact powers and prerogatives of a Supreme Court, nor the organization of the judicial branch as a whole. John Marshall served as Chief Justice from 1801 to 1835. He gave the Court its power of judicial review of the acts of Congress by naming itself the “supreme expositor of the Constitution (Marbury v. Madison)[21][22] and making several important constitutional rulings that gave shape and substance to the balance of power between the federal government and states, notably Martin v. Hunter's Lessee, McCulloch v. Maryland, and Gibbons v. Ogden.[23][24][25][26]” Also during Marshall's tenure, although beyond the court's control, the impeachment and acquittal of Justice Samuel Chase from 1804 to 1805 helped cement the principle of judicial independence.[29][30]
https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States
There are cases that resound through time. They reflect and resolve heated disputes over the character of our country. The Marshall Court gave the judiciary equal footing with the legislative and administrative branches. The Roberts Court has taken judicial independence to an unprecedented, unwarranted, and dangerous extreme.
1. It put the president above the law (Trump v United States, 2024). The holding reads:
“Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”
https://en.wikipedia.org/wiki/Trump_v._United_States_(2024)
2. It deprived women of the right to reproductive decisions and health concerns related thereunto (Dobbs, 2022). The holding reads:
“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. Court of Appeals for the Fifth Circuit reversed.”
https://en.wikipedia.org/wiki/Dobbs_v._Jackson_Women%27s_Health_Organization
3. It undermined the fairness of our elections (Citizens United, 2010). The holding reads:
“The provisions of the Bipartisan Campaign Reform Act of 2002 restricting unions, corporations, and profitable organizations from independent political spending and prohibiting the broadcasting of political media funded by them within sixty days of general elections or thirty days of primary elections violate the freedom of speech that is protected by the First Amendment to the Constitution of the United States. United States District Court for the District of Columbia reversed.”
https://en.wikipedia.org/wiki/Citizens_United_v._FEC
That the Court contains at least two, maybe more, corrupt justices it refuses to control or dismiss is a matter of fact. The perception that the opinions of these justices tilt decisions to the favor of the ultra-conservative interests befriending them and their radical wives is inescapable and perhaps true. It is a delicious irony that Donald J. Trump successfully sued the very country against which he inspired a rebellion and now has permission to rule in an unfettered manner, thanks to the Roberts Court. Until the Trump decision we could say, and try hard to believe, we were a nation operating under the rule of law—that all of us were equal before it. It will take a legislature not intimidated by Donald J. Trump or his noisome legacy to craft laws representative of the opinions and desires of We the People on all three of the rogue decisions cited above.
Forewarned Is Not Forearmed
It is cold comfort to know that respected thought leaders had the same knee-jerk reaction as did I when reviewing the annual report by Chief Justice John Roberts. He draws a false equivalency that informs and alarms.
Brown v. Board of Education was argued on 09 Dec 52, reargued on 08 Dec 53, and decided on 17 May 54 by the Warren Court. The holding reads:
“Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment, because separate facilities are inherently unequal. District Court of Kansas reversed.”
https://en.wikipedia.org/wiki/Brown_v._Board_of_Education
It is true the decision was unpopular with persons and institutions still practicing segregation. In 1957, after three years of heated legal contests, the governor of Arkansas refused to honor a federal court order to integrate the state’s public school system. Eisenhower demanded that the state obey the court order. Governor Faubus held firm to states’ rights. The president then “placed the Arkansas National Guard under federal control and sent in the 101st Airborne Division. They protected nine black students' entry to Little Rock Central High School, an all-white public school, marking the first time since the Reconstruction Era the federal government had used federal troops in the South to enforce the Constitution.”
https://en.wikipedia.org/wiki/Dwight_D._Eisenhower#Civil_rights
Donald J. Trump has promised to use armed force against persons and institutions challenging his authority to identify, collect, detain, and evict immigrants in this country illegally or living under some sort of (previously legal) protected status. Most disturbing is the threat to remove persons born here. When Chief Justice Roberts points to Brown as an example of the administration’s right to occupy its own country, we are forewarned how the Court likely will lean. It's not a pretty notion.
Adding weight to that troubling prospect are comments Justice Thomas made in 1995 (Missouri v Jenkins):
“Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. (...) Because of their "distinctive histories and traditions," black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.”
I do not agree with his “given,” much less the opinion which follows. Here is a guy who enjoys upsetting apple carts with reasoning which would be laughable if not so dangerous.
I submit there in no equivalence between Eisenhower’s actions in 1957 to enforce integration of public schools and any use of force by Donald Trump in 2025 to bypass or, worse, suspend equal protections and due processes with some sort of claim of precedent or national emergency. The Roberts annual report and the Thomas opinion forewarn us. They do not arm us.
The pure and simple fact is that We the People cannot affect in any direct, immediate, and effective manner the whims of Donald J. Trump or the judicial malfeasance of the Roberts Court. What we can, and must, do is use the power of our vote—present and future--to hammer on our representatives in both branches of Congress unceasingly to put country before partisanship.
When We the People raise our voices in protest of What Is Wrong, many of our representatives are so old they can hum along in their heads, if not change their hearts and votes, when we sing:
Well, I've got a hammer
And I've got a bell
And I've got a song to sing
All over this land
It's the hammer of justice
It's the bell of freedom
It's a song about love between
My brothers and my sisters
All over this land
Lee Hays / Pete Seeger, 1949
Peter, Paul, and Mary Billboard No. 10 in 1960
Don’t just survive Project 2025.
Resist.
Prevail.