To Fix SCOTUS

Win the Senate

Amorality is not an acceptable basis for operation of all three branches of American government. We the People need not, must not, be held hostage to principles that disrespect us and practices that disadvantage us.

Credit. Robert Reich

Turning the Supreme Court into Fortune Tellers

In 1868, British Prime Minister William Ewart Gladstone told Parliament that “Justice delayed is justice denied.” America’s search for a lasting union along history’s sometimes wandering arc always returns to the notion that a fair decision arriving too late is functionally equivalent to no justice at all.

A recent article by The New York Times published an expose’ on a seminal moment in American jurisprudence. Reportedly, in February of 2016, the high court was asked to consider on an immediate and urgent basis a pleading on West Virgina v. EPA. Relief was sought by states affected by implementation of a federal policy. They cast the matter as an emergency situation, in the same category as a plea to stay immediately the unfair or unlawful execution of a prisoner.

At issue was the authority and reach of the Environmental Protection Agency (EPA) with regard to clean air laws and regulations put forth in 2014 under the Clean Power Plan (CPP). The specific issue was the extent to which the EPA could regulate carbon dioxide emissions related to climate change. The urgency of the request related to the Jan 2016 decision of the D.C. Circuit court not to grant a temporary injunction to stay enforcement of the CPP before hearing the facts of the case, which challenged several previous high court rulings on the matter of EPA responsibility and authority under the 1970 Clean Air Act.

The Times article brings to light 16 pages of signed letterhead communications between the justices about whether to respond to the request to freeze an entire regulatory program while the issues of fact and legality moved through the lower court process, and, if so, how.

According to Harry Litman, Talking Feds Substack, the record shows Chief Justice John Roberts was concerned that a failure to stay the D.C. Court order would force affected companies to afford compliance before the case was heard and decided on its merits by the high court in 2018. He pointed to Michigan v. EPA as an example of irreversible harm previously caused by the delay of judicial process that likely would have granted relief.

On that fateful weekend, Chief Justice John Roberts crossed a legal Rubicon. And ferried corrupted conservative associate justices across the dividing line between a democratic republic and an autocracy.

Following these private weekend musings, the high court publicly issued an unsigned order to stay enforcement of EPA regulations. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan stated they would have denied the request. So, the Shadow Docket protocol was repurposed and went forward against an internal, informal, and previously undisclosed 5-4 vote on the matter. Since then, the high court has used the procedure as a tool for making major decisions about nationwide federal acts and policies quickly, secretly, and without accountability to anyone—based on a notion of how it will rule on facts yet to be presented and issues not yet argued.

Credit. Facebook

This was the most consequential reimaging of the function, power, and process of the judicial branch in 213 years. And We the People have been suffering its unhappy consequences for the last decade.

As to the case that caused John Roberts to become an infamous jurist--The D.C. Circuit held an en banc hearing on West Virgina v. EPA in September 2016.^[13] On 30 Jun 22, the high court held 6-3 that “Congress did not grant the Environmental Protection Agency in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan.”

Justice by Fiat

Donald John Trump has issued 476 executive orders:

1. First term in office: 220 in 4 years; and,

2. Second term in office: 256 in 15 months.

Eight of these second term orders were styled as required by a national emergency declared unilaterally by the president.

Numerous cases have been filed against the cruel, unusual, inhumane, illegal, unconstitutional, and/or unsustainable actions of the agents of his administration as they implement his instructions. In many instances, the harm to the plaintiff is ongoing in fact and irreversible in effect. In 41 instances where lower courts have halted federal actions or dismissed federal policies, the Department of Trump Justice has claimed irreparable harm and pled for emergency relief. The Supreme Court used its shadow docket to grant full or partial relief in 28 of these cases. In so doing, the high court has allowed the Trump administration to continue on a campaign of clear, present, continuing, likely unconstitutional and clearly illegal harm against targeted members of the governed in most instances. Other abusive conduct has been given time to do additional harm to world peace and climate change.

Both the premise and the operation of the Roberts Principle favoring Trump’s implementation of the traitorous Project 2025 playbook are unfair, unjust, and indefensible.

1. With regard to allowing continuation of immigration policies that put armed and masked militia among the governed to meet Stephen Miller arrest quotas --In 1785, Benjamin Franklin opined that “”it is better 100 guilty Persons should escape than that one innocent Person should suffer”. ...

2. With regard to the abandonment of soft diplomacy programs and dismantling of domestic welfare programs--In Act IV, Scene 1 of William Shakespeare’s Merchant of Venice, Portia pleads that “…The quality of mercy is not strained.” Trump 2.0 is a pandemic of amorality.

The attitude and operation of the Roberts Court is not right or acceptable. Two of its members are clearly corrupt. Two were reported during confirmation proceedings to have a predatory nature sexually. The majority is partisan to an extreme. At least two members have wives that actively support the attempt to deny the facts and consequences of Election 2020.

The Roberts Court is one of infamy.

Refuse to Allow Abuse

It is not true that the Supreme Court’s authority rests entirely on the persuasiveness of its reasoning. In 1803 John Marshall, the 3^rd chief justice, invented unassailable power for the highest court in 1803. In 2016 John Roberts, the 17^th chief justice, tried to repurpose the court of last resort and final opinion as a feckless fortune teller favoring the theory of a unified executive (aka a king, dictator, or tyrant).

The Roberts Principles of executive immunity and privilege cannot be allowed to stand unchallenged past the midterm Election of 2026.

The Theory and Practice of Judicial Review

When John Marshall took leadership of the high bench in 1801, the Supreme Court was a minor organ of the fledgling government. On 24 Feb 1803, in the case of Marbury v. Madison, the Marshall Court struck down an act of Congress. In so doing, it declared itself the final arbiter of constitutional interpretation. It held that the Supreme Court could overrule Congress, the President, the states, and all lower courts where required by a fair reading of the Constitution. The Marshall Court also tied the rights of artificial legal constructs (corporations) to the rights of select individuals and benefitting subsidiary legal constructs (stockholders).

Justice Felix Frankfurter characterized the Marshall Court as one viewing the Constitution as a “living framework within which the nation and its States freely could move through the inevitable growth and changes wrought by time and its great inventions.” As opposed to treating the Constitution as “a document whose text was divinely inspired, and whose meaning is to be proclaimed by an anointed priesthood removed from knowledge of the stress of life.”

Corruption

In 1887 Historian Lord Acton famously and accurately observed that “Power tends to corrupt, and absolute power corrupts absolutely.” Contemporary studies on the subject tend to support the notion that experiencing power can alter brain chemistry and reduce empathy.

America currently is in the cycle of operation in which a powerful few hold the reins of power and privilege. And have a stranglehold on fact, information, and simple human decency.

All three branches of our government are the best that money can buy. They are corrupt. They answer to the few. They are deaf to, indifferent toward, and disrespectful of the governed.

The Present Attempt to Lose a Democratic Republic

The Constitutional Convention in Philadelphia closed on 17 Sept 1787. Elizabeth Willing Powel asked Benjamin Franklin what form of government the convention had produced. Franklin replied, “A republic, if you can keep it.”

Trump 2.0 is implementing the Project 2025 playbook written by the Heritage Foundation.

Project 2025 is an autocrat’s wet dream. It aims to convert a democratic republic to a monarchy. Its strategy is based on a controversial interpretation of unitary executive theory according to which the executive branch is under the president’s complete control.

Heritage once supported free trade; now it is protectionist. It once supported a robust American foreign policy; Heritage purged its defense hawks two years ago. Heritage was a supporter of the originalist judicial revolution and the rule of law; now it defends Mr. Trump’s expansion of executive power whether or not it has a constitutional basis. Some legal experts say Project 2025 would undermine the rule of law,^[34] separation of powers,^[6] separation of church and state,^[33][35] and civil liberties.^[6][34][36] Four days into his second term, analysis by Time found that nearly two-thirds of Trump’s executive actions “mirror or partially mirror” proposals from Project 2025.^[54

Political scientist Rachel Beatty Riedl said that the threat to democratic rule does not require violence. It uses democratic institutions to consolidate executive power. She said, “if Project 2025 is implemented, what it means is a dramatic decrease in American citizens’ ability to engage in public life based on the kind of principles of liberty, freedom and representation that are accorded in a democracy.”

Profile in Cunning

It took intent, time, and cunning to yield the present membership, attitudes, and objectives of the Roberts Court.

Addison Mitchell McConnell III^[1]represents the State of Kentucky in the U.S. Senate. He served from 2007 to 2025 as the leader of the Senate Republican Conference:

1. Two stints as minority leader (2007 to 2015 and 2021 to 2025); and,

2. Majority leader from 2015 to 2021.

He is the longest-serving Senate party leader in U.S. history. His Wikipedia profile reads as follows:

“In his early years as a politician in Kentucky, McConnell was known as a pragmatist and a moderate Republican.^[23][27] Over time he became more conservative.^[23][27] …….(He became) an obstructionist.^[35]”

Mitch caused confirmation of a record number of federal appeals court judges during the first two years of Trump 1.0. He blocked the nomination of Merrick Garland, an admirer of John Marshall, to the high court in 2016. McConnell invoked the nuclear option to eliminate the 60-vote requirement to end a filibuster for Supreme Court nominations. This procedural change allowed Trump, with Senate approval assured by McConnell, subsequently to win Supreme Court confirmation battles over clearly conservative jurists Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

The review of the credentials and judicial philosophy of Amy Coney Barrett was a profoundly gregarious abuse of the constitutional duties and powers of the Senate. McConnell rushed Barrett through the approval process along an expedited time frame denied Garland. Her approval had the duplicitous and clearly manipulative purpose of “stacking” the court to the advantage of Project 2025 objectives.

Our Uncivil War

On 02 July 24, Heritage Foundation president Kevin Roberts created controversy by saying, “we are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”^[80][106]

That is an abominable mischaracterization of the moment and the forces at play. Project 2025 is not a revolt against tyranny. It is another in a long line of attempts to compromise our founding documents, principles, and practices. We are in process of an Uncivil War against entrenched autocrats. Once again some good number of We the People spontaneously rise to defense of and support for Lincoln’s 1863 determination “that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

Another Infamous Chief Justice and His Rogue Court

Roger B. Taney was the 5^th Chief Justice of the U.S. Supreme Court. He allowed his court to make a profoundly biased decision which besmirches his every other well-meaning act and decently determined opinion. The Court’s (7-2) majority opinion in the case of Dred Scott v. Sandford, written by Taney, was given on March 6, 1857. His court held that no African American, free or enslaved, had ever enjoyed the rights of a citizen under the Constitution. It took a civil war, 1.5 million directly affected lives, and three constitutional amendments to reverse the decision and attempt to ensure such partisan damage would not occur again. The effort withstood reversal for 146 years (time between passage of the 15^th amendment and Trump’s descent down his golden escalator.)

The Roberts Court is going Taney 3 to 1 for rogue decisions requiring remedy and reversal:

1. Citizens United v. Federal Election Commission (2010)

a. Holding: “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. “

b. The Vote (5-4):

1.) For: Chief Justice Roberts, joined by Scalia, Kennedy, Thomas, Alito

2.) Against: Stevens, joined by Ginsburg, Breyer, Sotomayor

2. Dobbs v. Jackson Women’s Health Organization (2022)

a. Holding: “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.”

b. The Vote (6-3):

1.) For: Alito, joined by Chief Justice Roberts, Thomas, Gorsuch, Kavanaugh, Barrett

2.) Against: Breyer, Sotomayor, Kagan

3. Donald J. Trump v. United States (2024)

a. Holding: “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.”

b. The Vote (6-3):

1.) For: Chief Justice Roberts, joined by Thomas, Alito, Gorsuch, Kavanaugh, Barrett

2.) Against: Sotomayor, joined by Kagan, Jackson

Meditation

Infamous conduct causes damage which may not be reversible or repairable.

1. The dead stay that way; and,

2. Rape victims surviving assault thereafter live with a bell that cannot be unrung.

America is experiencing yet another existential crisis. This one is challenging the notion that We the People have the right, the means, the capability, and/or the wisdom to govern ourselves freely and effectively.

If We the People still would not want to be ruled by a king, it will take more than a trip to Boston Harbor or firing from behind a wall at Concord. It will take an unassailable number of freely cast and fairly counted votes to remove from public office every person breaking oath to the Constitution and faith with the will and best interests of those electing them to the opportunity of honorable public service.

It is the principle of habeas corpus that gives our rule of law sound daily footing. During the Civil War, Reconstruction, the war on terror, and in this Time of Trump Terror and Revenge, the right to petition for a writ of habeas corpus was, and now again is, substantially curtailed for persons accused of engaging in conduct targeted by the government as undeserving of human rights and/or constitutional protections.

Active, focused, purposeful, clever, strategic, and sustained resistance to implementation of the Project 2025 playbook is required.

Clearly, our high court has gone rogue. From the shadows, it is favoring a lawless president and a congress captive to corruption and self-interest. Blessedly, lower courts have held the fort of the notion of justice for all with favor toward none as enshrined in our founding documents, articulated in 27 ratified amendments to the constitution, and expressed in laws in effect on 20 Jan 25.

Suggestions about how to “fix” the Roberts Court fly everywhere with little concern for efficacy or consequence. Common sense remembers decent guidance about handling such a problem:

1. Don’t make the situation worse:

a. (Texas) Resist the temptation to shoot oneself in the other foot; and,

b. (France) Do not throw the baby out with the bathwater it has dirtied.

2. Be thoughtful and present during crisis:

a. (Hippocrates, 400 B.C.) First, do no harm to someone or thing requiring care to survive

b. Next and concurrently:

1.) Maintain a flow of oxygen to the shocked brain; and,

2.) Stop bleeding caused by penetrating damage.

Those of We the People unhappy with the results and consequences of Election 2024 are the trauma team.

It is incumbent upon us to be thoughtful. The Roman poet Virgil noted that misdiagnosis of a core medical issue easily can lead to treating symptoms while destroying the underlying system. “The cure worsens the disease.”

The underlying system is a democratic republic.

The rogue Supreme Court, self-serving and tone-deaf Congress, and rogue President are symptoms of an autocratic disease.

Where to start and what to do when responding to a disaster?

Habeas corpus has my vote.

This much is currently certain with regard to the Supreme Court. Its members are nominated by the sitting president and approved by the senate. Until the partisan grip on that process is loosened, no other action has merit or force.

Pies in clear skies will not feed the ground troops.

At least 50 sitting senators must be voted out of office.

“Easy” is not the same as “Required.”

Meditation

On 23 Apr 26 the Senate defied the will of some good portion of We the People. On a 50-48 vote, it approved another $70 billion of funds for ICE and Border Patrol operations. Any claim of credible representation of their constituency is forfeit. It is amazing that the upper chamber can ignore the folk of all ages and colors and genders peacefully protesting Trump 2.0 in all weathers in all places across and in almost every court in the land. Yes, it is tough to fire a senator. Ending an era of socio-eco-politico infamy requires replacement of every one of the 50 senators who ignored the will and best interests of the governed.

Get to it.

Mandate

We the People do not have to condone the illegal actions of a weak and troubled, avaricious old man masquerading as our will. We can, we must, with our persons and our purses every day in every legal way use the Power of One to delay, deny, and destroy implementation of Project 2025. In short, to exercise our firm intention that government of the people, by the people and for the people does not perish from the earth on our watch.

A new Congress, representative in both chambers of the will and best interests of the governed, is the first step of a return to sanity, decency, honor, and integrity in the operation of our government.

To fix SCOTUS, win the Senate.

Anthem

If We the People do not relent, we will elect and seat a 120^th Congress having a majority dedicated to the proposition of responsive and responsible representation of the will and best interests of the governed. No Trump once again will be a bridge game term rather than a daily prayer.

Coda

The issue is not structure. Is a question of character. Our democratic republic has very fine structure. Its operation and purpose presently are in the hands of disloyal persons of low character. To return us to a nation of laws administered with justice for all with favor for none--Vote into service a new Congress in 2026. One composed of independent minds and faithful hearts—loyal to their oaths of office and responsive to the will and welfare of the governed in terms stated in the founding documents and administered within the rule of law.

Go, team, go.