Why the US constitution and legal system makes it impossible for a president to become a dictator - and justices often rule against Trump

Jun 09, 2024

This starts with a brief summary of why the US Constitution prevents project 2025 or anything like it. The rest of it is about how judges, justices and the Supreme Court are NOT MAGA and often decide against Trump. Also about how the justices themselves think about what they do.

TRUMP APPOINTED JUSTICES FREQUENTLY RULE AGAINST HIM

Trump appointed justices frequently rule against him. Nine Trump appointees ruled against Trump in his claim of fraud in the election in 2020.

All three of his Supreme Court nominees agreed not to even consider the attempt to overturn the results in four states:

QUOTE The big one was Friday’s Supreme Court decision, in which the court declined to even accept a dubious filing from 18 Republican state attorneys general and the Trump campaign seeking to overturn the results in four states. Two justices offered a slightly more nuanced view — that the case should be accepted — but none were Trump appointees Barrett, Neil M. Gorsuch or Brett M. Kavanaugh. What’s more, the two justices (Samuel A. Alito Jr. and Clarence Thomas) also said they wouldn’t grant the requested relief, which was a significant rebuke in and of itself.
TITLE:
The most remarkable rebukes of Trump’s legal case: From the judges he hand-picked
At least nine Trump-appointed judges or Supreme Court short-listers have declined to bolster his claims of election fraud. None have ruled in his favor.
. most-remarkable-rebukes-trumps-legal-case-judges-he-hand-picked/

That same article lists six other Trump appointees in lower courts who ruled against him.

Another example, Judge Singhal ruled against Trump's defamation case where he tried to get $475 million in damages from CNN for using the word "The Big Lie" for it's coverage of Trump's election challenges.

QUOTE Judge Singhal (a Trump appointee): “CNN’s use of the phrase ‘the Big Lie’ in connection with Trump’s election challenges does not give rise to a plausible inference that Trump advocates the persecution and genocide of Jews or any other group of people. No reasonable viewer could (or should) plausibly make that reference.”
. "Judge throws out Trump’s ‘big lie’ defamation lawsuit against CNN" #ELB
QUOTE A federal judge has thrown out a $475m (£369m) defamation lawsuit brought by Donald Trump against CNN for allegedly likening him to Adolf Hitler.
. Judge dismisses Donald Trump's 'Big Lie' lawsuit against CNN

TRUMP APPOINTEE GREGORY KATSAS WAS ONE OF THREE THAT RULED THAT TRUMP IS NOT IMMUNE FROM PROSECUTION FOR CRIMES COMMITTED AS PRESIDENT

Trump appointee Gregory Katsas agreed on a 3 - 0 unanimous verdict in the US appeals court that Trump is NOT immune to prosecution for Jan 06 - the case which is now before the Supreme Court.

QUOTE STARTS
"The sole issue before us is whether President Trump has demonstrated an entitlement to official-act immunity for his actions leading up to and on January 6 as alleged in the complaints. We answer no, at least at this stage of the proceedings,"
The three judges noted that Trump is alleged to have instigated the riot during the course of his re-election campaign, and said, "When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act."
...
The ruling allows a large number of lawsuits seeking to hold Trump accountable for the deadly riot to move forward. The cases had all been stayed while the appeals court weighed the immunity issue, which they said would have to be revisited in the lower courts.
"In the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the runup to and on January 6 were taken in his official capacity as President rather than in his unofficial capacity as presidential candidate," the ruling said.
The ruling also suggested he might have an uphill climb.
...
“When a sitting President running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity.”
...
Gregory Katsas, is a Trump nominee who clerked for Supreme Court Justice Clarence Thomas.
. Federal appeals court finds Trump not entitled to presidential immunity in Jan. 6 civil cases — for now

TWO TRUMP APPOINTEES RULED THAT TRUMP AS PRESIDENT COULDN’T DECLASSIFY DOCUMENTS JUST BY SAYING THEY ARE CLASSIFIED

Two Trump appointees were responsible for the ruling that when he ws president, Trump was not able to declassify documents just by thinking that they are declassified or saying they are declassified.

QUOTE STARTS
In a stark repudiation of Donald Trump’s legal arguments, a federal appeals court on Wednesday permitted the Justice Department to resume its use of classified records seized from the former president’s Florida estate as part of its ongoing criminal investigation.
The ruling from a three-judge panel of the U.S. Court of Appeals for the 11th Circuit amounts to an overwhelming victory for the Justice Department, clearing the way for investigators to continue scrutinizing the documents as they consider whether to bring criminal charges over the storage of of top-secret records at Mar-a-Lago after Trump left the White House. In lifting a hold on a core aspect of the department’s probe, the court removed an obstacle that could have delayed the investigation by weeks.
The appeals court also pointedly noted that Trump had presented no evidence that he had declassified the sensitive records, as he maintained as recently as Wednesday, and rejected the possibility that Trump could have an “individual interest in or need for” the roughly 100 documents with classification markings that were seized by the FBI in its Aug. 8 search of the Palm Beach property.
...
Two of the three judges who issued Wednesday’s ruling — Britt Grant and Andrew Brasher — were nominated to the 11th Circuit by Trump. Judge Robin Rosenbaum was nominated by former President Barack Obama.
, Trump docs probe: Court lifts hold on Mar-a-Lago records

There are many more examples

TRUMP HAS WORST SUCCESS RATE IN SUPREME COURT FOR ANY PRESIDENT SINCE 1937 - ONLY PRESIDENT TO LOSE MORE THAN HALF HIS CASES

The justices have frequently ruled against Trump including in the Supreme Court,

All the evidence is AGAINST the idea some have that somehow Trump appointees to the Supreme Court are corrupt and would let a president become a fascist. It is very clear that they are doing him no favours.

The Supreme Court is insulated by the US constittuion. A president can appoint justices to the Supreme Court but can’t fire them, as a way to ensure the justices can’t be pressurized by a president to alter their decisions. And the current justices have frequently ruled against him.

Trump has lost more than half the cases against him at the Supreme Court, the worst rate of any president since 1937. His win rate was 43.5%, compared to 52.4% for Obama who had the next worst record after Trump. Biden’s win rate in his 2021 term was 56.5%

Trump did even worse with high profile cases, losing 65% or nearly 2/3 of them.

. Trump administration had worst Supreme Court record since at least FDR years, study says

JUSTICES CAN ONLY BE REMOVED BY IMPEACHMENT BY CONGRESS - MAKING THEM IMMUNE TO PRESSURE FROM THE PRESIDENT

The only way a justice can be removed from the Supreme Court is by impeachment, a simliar process to impeaching a president with a majority in the House and a 2/3 majority in the Senate. It is the same process for any Federal justices. The rules are similar for State justices except the size of the majority needed in the state Senate can differ.

. Impeachment and Removal of Judges: An Explainer

For instance in Alaska the impeachment originates in the Senate rather than the House and both have to have a 2/3 majority.

. Alaska’s Constitution

THE SUPREME COURT IS NOT LIKELY TO SIGNIFICANTLY CHANGE LIBERAL / CONSERVATIVE BALANCE IN 2024–2028 - AND ALL EXCEPT ALITO SEEMS TO BE MOVING TOWARDS LESS CONSERVATIVE / MORE LIBERAL IN DECISIONS

Then if the is president, it is election year and politicians on both sides are exaggerating even more than usual. The Supreme Court justices have OFTEN ruled against Trump and against Republican priorities.

Since that seems to be your main new worry just now, I'll focus on that in my reply this time, it may help to just answer one thing at a time.

It is actually really unlikely that any of the three Liberal justices are replaced in the next term.

Indeed ALL the current justices are quite young now for Supreme Court justices so there aren't likely to be many vacancies in the next term.

That is partly why Stephen Bryer resigned, one of the three remaining liberal justices so that Biden could replace him with a younger liberal justice. He was 83 Justice Stephen Breyer to retire from Supreme Court, paving way for Biden appointment

His replacement is Ketanji Brown Jackson who is 53

https://en.wikipedia.org/wiki/Ketanji_Brown_Jackson

The other two liberal Supreme Court justices are Sonia Sotomayor who is 69 Sonia Sotomayor - Wikipedia and Elena Kagan who is 63

https://en.wikipedia.org/wiki/Elena_Kagan

This is about the liberal or conservative leaning of the justices. This is not by political conviction but by their legal interpretative philosophy. Remember conservative justices frequently rule against Trump.

. /supreme-court-justices-ideology

The only justices in the court in their 70s are now Clarence Thomas 75 and Samuel Alito, 73.

Those also are both young for a modern Supreme Court Justice given the longer modern life expectancy.

It is well possible none are replaced in the next presidential term.

I don't see any suggestions that anyone in particular might die or leave soon, now Stephen Byer has resigned. They rarely retire and often stay on with their job as justice for as long as they are intellectually capable of it which for many Supreme Court justices is until the day they die.

It is possible that one or other does die in the next term even two, or retires, but more likely to be conservative than liberal justices are replaced because

1. there are twice as many conservative justices now.

2. The two oldest justices are both conservative.

. The Green Papers: Historical Data

JUSTICES DO NOT DECIDE BASED ON REPUBLICAN OR DEMOCRAT OBJECTIVES - MOST STRIKING IN THE WAY THAT JUSTICES GRADUALLY SHIFT IN THEIR CONSERVATIVE / LIBERAL LEANING ALMOST ALWAYS TOWARDS LIBERAL AFTER THEY ARE APPOINTED

So this is likely a minor change and remember that a justice appointed by Republicans does NOT mean it's a justice who supports Republican objectives. They do it instead by looking at past decisions that justice has made and choose one that has made decisions they like. The justice has no allegiance to the party that appointed them. They make decisions according to their best understanding of the law and their legal interpretative philosophy and they often also change their view of the law and may change liberal to conservative or vice versa.

Sotomayer is the most dramatic, she moved from slightly to the liberal side of centrist to very liberal.

Thomas despite his reputation as a very conservative justice is moving more and more towards centrist.

Indeed all the justices according to this estimate have moved to less conservative or more liberal in the last few years except Alito who has moved nearly as much in the conservative direction as Sotomayer did in the liberal direction and Gorsuch who moved slightly to conservative. These results are preliminary.

Details see:

. supreme-court-justices-political-ideology-chart

It is possible for a justice to cross over from one side to the other in the chart also.

The thing is they are not really liberal or conservative. This is not the basis on which they make their decisions.

Rather the Republican presidents tend to pick originalist justices who in many cases do make more conservative decisions because they base it on the original meaning of the text which align more with beliefs Americans had long ago which tend to be more conservative.

But often they make decisions that would be seen as liberal and there are other situations where being originalist is very frustrating to Republican objectives.

BLOG: Supreme court justices in the US are originalists and don’t decide by personal beliefs - but originalist decisions may tend to be more aligned with the values that Americans had long ago rather than present day values

EXAMPLE OF SUPREME COURT JUSTICE PAUL STEVENS APPOINTED BY REPUBLICAN PRESIDENT FORD MOVED ALL THE WAY FROM VERY CONSERVATIVE TO VERY LIBERAL - AND RESPONSIBLE FOR DECRIMINALIZING HOMOSEXUAL ACTIVITY

I mentioned that sometimes justices can even move from conservative to liberal. Here is a good historical example of a justice who was appointed by a Republican president and moved from very conservative all the way to one of the most liberal justices.

He moved from so conservative he wrote a legal dissent saying it is legal to prevent married women from becoming air hostesses to so liberal he was one of the justices responsible from decriminalizing homosexuality and after he retired he called for a repeal of the second ammendment, the right to bear arms.

QUOTE "His most influential majority opinions decriminalized homosexual activity and paved the way for gay marriage (Lawrence v. Texas),... He even signed on to the Court’s controversial affirmation of a woman’s right to an abortion in Planned Parenthood v. Casey."
. How John Paul Stevens' Views Evolved Over 34 Years on the Supreme Court | HISTORY

After he retired he even called for repeal of the right to bear arms, the 2nd amendment calling it archaic.

That's John Paul Stevens appointed by the Republican president Gerald Ford.

Before he was appointed, his supporters worried he might run into problems being selected because he had previously authored a dissent saying it was legal to prevent married women from becoming air hostesses at a time of increasing rights for women.

QUOTE At the beginning of his Supreme Court career, he upheld the Second Amendment, the death penalty and railed against affirmative action. By the end, he had done an about-face on all three. His most influential majority opinions decriminalized homosexual activity and paved the way for gay marriage (Lawrence v. Texas), upheld the separation of church and state (Wallace v. Jaffree) and affirmed the legal rights of Guantanamo Bay detainees (Rasul v. Bush). He even signed on to the Court’s controversial affirmation of a woman’s right to an abortion in Planned Parenthood v. Casey.
...
He also made a name for himself through his vigorous dissents—often solitary—against conservative victories like Bush v. Gore, which settled the 2000 presidential election in Bush’s favor, and Citizens United v. FEC, which prohibited the government from limiting independent political expenditures on behalf of political campaigns. After his retirement, he called for a repeal of the Second Amendment, calling its premise “a relic of the 18th century.”
. How John Paul Stevens' Views Evolved Over 34 Years on the Supreme Court | HISTORY

The more conservative the Supreme Court got, fueled by changes in the Republican Party, the more liberal Stevens became.

SUMMARY OF THE THREE CRIMINAL CASES -

For Jan 06, the main thing they have to rule on is what is the legal situation for a president who is accused of a crime that he committed as president. The constitution is unclear about that situation. It is understandable that the Supreme Court is taking a while to decide that. They made it clear that they are concerned that whatever they decide will be used not just for Trump but for all future presidents who might do anything that anyone might consider to be criminal. So they have to get it right.

We will hear what they decide on that case in June. They are not likely to decide that Trump is immune from prosecution so then the next step depends on the details of their decision. Depending on how easy or difficult they make it for lower court justices to bring a former president to the courts for an alleged crime committed as president the Jan 06 hearing could be held as soon as July. Or it might be postponed to later but this is not because the Supreme Court is favouring Trump.

The Hush money trial is already in progress. The classified documents case requires a lot of preparation after all there are very few people who are cleared even to read them. All the trials involve vast amounts of documents.

JAN 06 HAS TO GO BEFORE THE SUPREME COURT BEFORE ANY TRIAL CAN BE HELD - BECAUSE IT IS FOR AN ALLEGED CRIME WHILE TRUMP WAS PRESIDENT

The Jan 06 case is especially legally complex because they tackle issues never tackled before. Normally the president is presumed to act legally in his official duties.

The court is divided here. But none of the justices think Trump should have blanket immunity. Indeed they are not even going to consider whether Trump could have immunity for unofficial acts like campaigning for re-election.

They seem unlikely to give him total immunity for official acts either but there might be nuances in their decisions.

The Washington Post summarizes it as: "Supreme Court seems poised to allow Trump Jan. 6 trial, but not immediately"

QUOTE STARTS
The court seemed unlikely to fully embrace either Trump’s broad claim of immunity or the special counsel’s position that former presidents have no guarantee of immunity for their official acts.
…when the Supreme Court agreed to take the case, it rephrased the question it would consider as: “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
That means the high court’s ruling is likely to require lower courts to separate out Trump’s official acts from his private ones, as alleged in the indictment, before proceedings can restart in the election obstruction case. If the D.C. trial is stalled until after the election, and Trump returns to office, he could pressure his attorney general to drop the federal charges against him.
. supreme-court-oral-arguments-trump-immunity/

The justices are ruling about how independent the executive is.

The justices said several times that they would be ruling not just for Trump but for all future presidents for the future of the US. So it is understandable that they need to be very careful about such an important point in interpretation of the constitution.

They might be able to decide in a way that lets the court resume right away soon after in June. But they might decide in a way that leaves things for the lower courts to sort out later which would delay the trial. Nobody knows right now. But the Supreme Court are trying their best not to be influenced in any way by the date of the election and do what is best for the US constitution.

This is naturally irritating for those who wish they could hurry up and make a decision but they are justices and they take their job very seriously.

In all this it is clear that the US justices are acting professionally. Nothing to suggest any improper conduct. They MUST NOT CONDUCT THE CASES WITH A MOTIVE TO EITHER PREVENT TRUMP BEING PRESIDENT OR ENABLE HIM TO BE PRESIDENT.

Whatever they do they are bound to have people on both sides saying either that they are delaying the trials to prevent Trump being brought to trial before the election or enabling the trials to interfere with the election.

But they are doing their best to resolutely not be influenced by any of that.

There is nothing here anyone has suggested by way of unprofessional conduct on this by any of the justices.

ALITO’S WIFE FLEW THAT FLAG UPSIDE DOWN NOT ALITO HIMSELF

This is an issue about Alito’s wife flying a US flag upside down for a short while in their garden. The issue here is that Alito is a conservative justice while his wife supports the Jan 06 allegations.

There is no reason to suppose either that Alito shares his wife’s views or that he is influenced by his wife’s views in his legal decisions.

With the upside down flag, it was for a short time on one day in 2021 and it wasn't Alito, it was his wife in an emotionally charged dispute with a neighbour.

Nowadays justices don't assume that a wife has the same political views as her husband. So Alito’s wife’s views are not relevant here.

The main question is whether Alito was aware of it and whether he knew the connection with Stop the Steal. It seems highly unlikley that he did.

If he didn't know and isn't responsible in any way then he doesn't have to recuse himself. If however he was in any way responsible then he might need to recuse himself from cases to do with Jan 06.

Seems to me highly unlikely that someone as experience a justice as a Supreme Court Justice would have associated himself with such an action.

In more detail, Alito's wife flew the flag upside down after their neighbour put up some signs in their garden that led to a dispute.

QUOTE STARTS
Ethical guidelines generally make it clear that judges should recuse themselves in cases where their spouses have financial interest, but the situation is less clear when spouses have a publicly known political point of view, said Arthur Hellman, a professor emeritus at the University of Pittsburgh School of Law. He pointed to a federal judge in California who refused to recuse himself from a same-sex marriage case in 2011 even though his wife was a head of the American Civil Liberties Union there. Spouses’ finances are generally intertwined, but the idea that wives and husbands always share political views is outdated, he found.
....
Martha-Ann Alito hung the upside-down flag during a dust-up with a neighbor in Alexandria, Virginia, who had a lawn sign referring to Trump with an expletive near a bus stop during a the “heated time” of January 2021, Fox News anchor Shannon Bream said in an online post, citing a conversation with Justice Alito. Upset after the neighbor blamed her for Jan. 6 and used vulgar language, she hung the flag “for a short time,” Bream wrote, saying Alito described some neighbors as “very political.”
. upside-down-flag-at-justice-alitos-home-another-blow-for-supreme-court-under-fire-00158772

YES DECISIONS BY THE JUDICIARY SHOULDN’T BE BASED ON POLITICS - BUT THIS GOES BOTH WAYS - AND THE JUDICIAL PROCESS IS ALWAYS SLOW

The rule that the decisions of the judiciary shouldn't be based on politics goes BOTH WAYS - they shouldn't have an aim to try to get Trump in prison before election day or to delay it to after. Instead they are just trying to get the cases seen to as quicly as possible. The justice who delayed the case about the classified documents is inexperienced in cases that require high security clearance like that and could have done it in a more streamlined way. But the delays mean that the Jan 06 case can be brought forward. It depends on what the Supreme Court decides in June. They will not make decisions to prevent Trump being president or to try and get him elected. Either motivation would be very improper for a justice.

The justices instead need to be careful to get it right because the details of what they say, every word, will be referred to in the future whenever any future president is accused of a crime when in office. So they have to get it right and they feel a big responsibility there that they are setting precedent on a matter that has never been looked at before in the history of the US constitution. It is not an easy decision to make.

So that is why it is so important to them to get it right - that's the perspective of a justice who has to be very careful to set up a wall between how they vote / personal politics andtheir legal judgements. It is entirely possible that some of the "conservative" justices always vote Democrat or that some of the "liberal" justices always vote Republican because how they decide things depends on their legal interpretaive philosophy and it would be highly improper to decide based on who they vote for in elections.

HOW THE JUSTICES THINK ABOUT EMPIRICAL STUDIES OF THEIR IDEOLOGIES

If you look at past decisions of judges you may be able to position them somewhere along a conservative - liberal ideology for the majority of their decisions. Then based on that you can project forward and predict the majority of future decisions based on the same point in the spectrum.

All the evidence researchers have there is that an inferred value on the liberal / conservative scale predicts well many of their decisions. That does NOT mean that they are using an internal ideology of conservative or liberalism in order to make their decisions.

It’s certainly not based on the justices own personal views on contraception or abortion. So what are they using as a basis?

This section is based on: What Is Judicial Ideology, and How Should We Measure It?

A few taster quotes and comments.

First, he says that there is no way to see inside a judge’s actual state of mind nd the researchers who claim to measure “judicial ideology” don’t try to investigate the way the judges themselves think. The researchers base it entirely on behaviour.

With the tools and data that currently exist, there is simply no way for researchers to observe directly a judge’s actual state of mind. As a result, studies that purport to measure “judicial ideology” have not sought to ascertain the structure or content of the ideas that judges hold. In practice, they have aimed instead to measure the extent to which judges behave in a way that appears motivated by preference or beliefs of an ideological character. Yet this orientation of the literature toward observable behavior, as opposed to unobservable states of mind, still begs the question of what it means for a judge to behave “ideologically.”

If you look at how the judges think you get a different idea. It goes on to give a concrete example of a particular justice, Justice Scalia’s ideology of favouring the original meaning of the text as a method of interpretation.

This distinction between the “legal” and the “political” or “ideological” is deeply problematic. To take a concrete example, Justice Scalia has articulated at length a set of reasons for favoring adherence to the original meaning of the text as a method of statutory and constitutional interpretation. Most legal and political observers alike would conclude that it is appropriate, if not desirable, for him to adopt an interpretive method, or “judicial philosophy,” in light of his responsibilities as a judge. Yet that is not to say that his choice of originalism is neither “ideological” nor “political” in character.

It goes on to discuss this in detail. But this may be enough to serve as an example of what is meant by a Judicial ideology. The way they themselves are thinking rather than the frameworks that others are putting on them as “conservative” or “liberal”.

You can understand that a justice who favours the original meaning of the text may be likely to make decisions that Republican politicians favour - but that is not the basis of his legal decisions.

It also talks about how justices have struggled for centuries to erect and defend this barrier between the justice and personal ideologies. It talks about the views of some of the judges themselves on these empirical analyses, some of them have been scathing in their views on these studies:

It has become de rigueur for leading law schools to profess great enthusiasm for both interdisciplinary and empirical research. Yet not all work in this vein has been warmly embraced. There remains deep skepticism in legal circles toward interdisciplinary empirical scholarship aimed at capturing the impact of ideology on judicial behavior.
Judge Harry Edwards of the D.C. Circuit, a vocal critic of this body of work, has vigorously disputed that “‘ideology’ broadly influences decision making.”1 The “disciples” of what he calls the “political view,” he writes, “seem determined to characterize judges as knee-jerk ideologues, who act pursuant to a blind adherence to ideological precepts and decide cases wholly without regard to the law.”
“Political scientists who study the Supreme Court do not take legal doctrine very seriously,” charges Michael Dorf, a prominent constitutional scholar. In suggesting that ideology influences the behavior of the Justices, he argues, political scientists have been guilty of “dispens[ing] with the metaphysical nonsense of law as a category independent of values, ideology and preferences, at least in the sorts of hard cases that reach the Supreme Court.”
Brian Tamanaha, a leading legal theorist, is no more generous in his assessment: “The judicial politics field,” he charges, “was born in a congeries of false beliefs that have warped its orientation and development,” and it remains characterized by “a distorting slant” that leads scholars “to exaggerate the influence of politics in judging.”

Then it talks about how very important it is for judges to have this division. That if they judged politically rather than as law, then it’s no longer clear why the questions should even be resolved in the courts rather than by politicians.

Empirical work that portrays ideology as an important determinant of judicial behavior breaches the wall of separation between law and politics that legal scholars have labored mightily for decades to erect and defend.
If legal and political decision-making come to be seen as largely undifferentiated, it becomes unclear why judges should pay any special heed to legal as opposed to policy arguments; nor, for that matter, does it remain obvious why certain questions should be resolved in the courts rather than in the arena of ordinary politics.
Breaches in the wall between law and politics therefore threaten to diminish both the range of policy questions over which legal scholars may attempt to claim special expertise and the extent of the influence that they have over the determination of those questions.
For more on this see: What Is Judicial Ideology, and How Should We Measure It?

As someone who trained as a mathematician I see what these justices describe as a bit like doing maths.

If you want to prove a theorem - it makes no difference to your proof how much you want something to be true. You may have a very beautiful idea for a proof, but if it doesn’t work when you frame it using the axioms and deduction system you are using then it’s out, the proof failed, you just can’t do it.

Justices reason using ordinary language which is more fluid than maths, with more room for interpretation. However they are working in the realm of logic and reasoning and it is possible to apply that in a way that is not affected at all by ones personal views on what one wants the outcome of the reasoning to be.

So they certainly can do that. So long as they keep to the realm of logical deduction rather than emotional thought. So long as they are objective, like the way scientists are when doing research and experiments, they may want the result to be something but sometimes it is the opposite of what they expected or wanted. They have to do the experiments carefully, not let the readings be biased by what they want them to be.

The basic issue here with those that claim the justices are using a political rather than a legal ideology to frame their decisions is the circularity of the reasoning. This form of reasoning looks at left and right leaning judges based on past decisions, but how do they distinguish between a judges personal ideology and an “ideology” that is really based on legal assessment over their career as a judge, like the experiments in science or proofs in maths? Both would look identical.

You can’t distinguish them just by estimating how much their past decisions impact on future ones as you expect that from a legal interpretative philosophy Also, you often do get flips too and changes. If you discard the different decisions such as a conservative justice voting in favour of LGBTQ as aberations then you can basically fit any hypothesis that way.

It is very different from politics and the way people reason and argue in Congress. Poliiticians are expected and reqired to make decisions based on their own views, on their manifesto and on what the people they represent want to see done.

This gets somewhat confused in the US because of the role politicians have in selecting justices. It may help to get a UK perspective. The barrier between the justice and personal ideologies is so clear here, that nobody even thinks to try to analyse British judicial decisions in terms of politial ideologies.

COMPARISON WITH SELECTION OF JUSTICES IN THE UK - EXAMPLE TO SHOW THAT JUSTICES CAN BE TOTALLY ABOVE ANY POLITICS

In the UK justices for the supreme court are selected on merit by a commission of justices and lawyers. The prime minister then recommends the appointment to the queen but is not permitted to change it.

As a result here there is nothing political about the selection of our supreme court justices and this whole question of whether they are left or right leaning never arises.

We see our justices as totally above any politics. Since there is no way for politicians to influence the composition of the Supreme Court then there is nothing really here to study, there are no Margaret Thatcher judges or George Brown judges or Boris Johnson judges. Just judges.

. Justice of the Supreme Court of the United Kingdom - Wikipedia

IF HYPOTHETICALLY USA WAS TO FOLLOW THE EXAMPLE OF THE UK AND USE A COMMISSION OF LAWYERS AND JUSTICES TO SELECT THE SUPREME COURT JUSTICES BY MERIT THIS WHOLE QUESTION WOULD GO AWAY - BUT FROM THE SIDE OF THE JUSTICES THEMSELVES NOTHING WOULD CHANGE EXCEPT THE METHOD OF SELECTION

This is important because if people think the justices are voting according to their personal ideologies then the Supreme Court just becomes another branch of the Legislature and there are no real checks on legislative decisiosn. But there is no evidence that is going on.

They are justices selected for a legal interpretative philosophy that Republicans like but the philosophy is not a personal ideology and they can’t use their own personal preferences to override legal decisions.

For us in the UK the strange thing about the legal system in the US is that Supreme Court Justices are chosen by politicians.

For us the US system for justices is not unlike gerrymandering which we also don’t have - here independent commissions decide boundaries as in many US states also. It seems strange to have politicians decide such matters.

A simple seeming solution would seem to be to dissolve the current Supreme Court and set up a new one with the justices chosen by a commission of other justices based on their legal excellence rather than by politicians - but I know that’s never going to happen in the US or at least it’s not being suggested by anyone. It would be a major constitutional change.

However if hypotethetically the US was to change to the UK system then there would no longer be “Republican” or “Democrat” justices since they wouldn’t be chosen by presidents. If that happened this whole issue of the personal ideologies of justices would go away - at least in the UK nobody would even think to examine a justices personal ideologies, especially at the level of an experienced justice of our Supreme Court, and there seems no reason why it would be any different in the US.

I think that may help to see how this is not really coming from the side of the justices. Every reason to believe they are being professional in their decisions as very experienced justices who have “striven mightily” for their entire professional life to separate their personal preferences from legal decisions.

This ideological bias doesn’t come from the justices.

It is coming from the side of the politicians who have becoming increasingly selective, choosing justices as a result of careful examination of their past legal decisions to see if they fit their own personal political ideology on certain key points, mainly abortion.

REPUBLICAN SUPREME COURT JUSTICES WERE SELECTED FOR PAST DECISIONS ON ROE - ON LGBT THEY ARE LIKELY PRO LGBT DECISIONS BY A 5 : 4 OR 6 : 3 MAJORITY

What happened is that the Republicans for many years selected Supreme Court justicesbased on their past record on that specific issue. So they were just deciding based on their past record and for legal not political reasons.

They were NOT chosen for their past record on LGBT and on LGBT issues the court seems to have roughly the same balance as before. A slight majority towards pro LGBT favourable interpretations of the law.

They haven't yet decided any significant LGBT cases recently but the figures suggest they are likely to be either 5 : 4 or 6 : 3 pro LGBT if they held a similar case today to one that in the past was decided 6 : 3 pro LGBT.

Though there's a majority now of justices selected by Republican presidents this does NOT mean they will vote for Republican agenda cases, they often turn down Republican legislation attempts.

Their record on trans rights is sparse, only one case in 2020 decided 6 : 3 in favour of trans. That time the conservative justices Roberts, and Gorsuch who are still in the Supreme Court voted for the trans favouring judgement and were joined by Sotomayor and Kagan of the justices still on the supreme court. The other two votes were Ginsburg and Breyer.

Assuming Jackson who is Breyer’s replacement selected by Biden also votes pro trans that's a 5 : 4 majority for trans. If Barret who replaced Ginsburg and was selected by Trump also voted pro trans it would be 6 : 3.

Of those two, Kagan as a liberal justice appointed under Biden is likely pro lGBT and Barret is unknown on this topic with no previous voting record which is why it could be either 5 : 4 or 6 : 3. That Barret was selected by Trump makes absolutely no difference to what she would decide. The Supreme Court Justices can’t be fired by presidents and are immune to any threats from them.

Cases that seem similar to lay people may be legally very different. But that is what they would decide based on the changes in composition of the court and the conservative justices record on this topic and assuming that Kagan since he is liberal and appointed by Biden is likely to vote pro-LGBT. The unknown vote is Barret with no track record on the topic.

This is that 2020 case: R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission - Wikipedia

A SECOND TRUMP TERM WOULD LIKELY FIND IT AS HARD TO PASS RIGHT WING LEGISLATION AS THE FIRST TERM WITH HIS ATTEMPTS TO FUND THE MEXICAN WALL

So I hope this helps alleviate worries about the Supreme Court working to turn the US into a fascist state. It is never going to happen.

So hopefully it matters to you less whether Trump wins or loses if your worry was that he would start a fascist dictatorship. That won’t happen.

He most likely would lead another confusing term like his first term. He never got the hang of getting things through Congress especially to do with the far right. His main legislative successes include work on taxes plus his work on funding vaccine development and support for the economy during the COVID pandemic. When it came to his most right wing objective, his pledge to build the wall with Mexico, he wasn’t able to pass a single bill through Congress to support it.

So the idea that he would suddenly become a president who is very effective at passing legislation makes no sense, especially since the Republican party itself is so divided over Trump’s politics.

A PRESIDENT CAN’T EVEN OVERTURN GAY MARRIAGE

If Trump is elected president, he can't even overturn gay marriage. Only the Supreme Court could do that and they are not at all likely to do that. Only Justice Roberts would even be likely to look at it. But even if the Supreme Court overturned Obergefells, the Supreme Court case that established a right for gay marriage and requires all states to issue gay marriage licenses - even if they overturned it the US Congress passed the Respect for Marriage act.

The respect for marriage act had bipartisan support from - Republicans and Democrats - 3/4 or more of the US public. - It passed the House 258 - 169, 1 Present with 39 Republicans joining the Democrats. - It passed the senate 61 to 36 house-bill/8404/actions

. Respect for Marriage Act - Wikipedia

A president can’t do anything about laws already passed by Congress. He can only block legislation that isn't yet put into law, and Congress needs a 2/3 majority to override that block.

It is the same for repealing laws, e.g. the Respect for Marriage act. Only Congress can repeal it not a president.

This means a new president can't run on a platform of repealing the respect for marriage act in their manifesto for two reasons

He'd lose so many votes if he ran on such a platform he’d likely lose the election
Even if a president was elected with such a manifesto, there is no way Congress would pass it because he could never get together enough far right legislators to override the moderate Republicans who agree with the Democrats on the topic.

The Respect for Marriage act is there to stay.

Also - gay marriage is guaranteed by Oberfels. Of the 9 Supreme Court Justices, only Justice Roberts has even considered revisiting the principle on which Oberfels was decided. Also - the reason they could overturn Roe is because it has always been contested. Gay marriage has never been contested signfiicantly since it was decided. So it’s unlikely that the Supreme Court even overturns it.

For details see:

BLOG: Supreme court decision to overturn Roe v. Wade does NOT mean the US supreme court will overturn gay marriage, right for contraception, or interracial marriage - and leaves decisions about abortion to the American voters

So you can see with that simple example how the fears that the US could become fascist are impossible. It is the same for anything else passed into law that has the support of the majority in Congress and it is also the same for anything that is guaranteed by the US constitution.

CONTACT ME VIA PM OR ON FACEBOOK OR EMAIL THE BEST WAY TO CONTACT ME AS I DON’T GET NOTIFICATIONS FOR MANY COMMENTS ON MY POSTS

If you need to talk to me about something do contact me it is often far better to do so via private / direct messaging because Quora often fails to notify me of comment replies.

You can Direct Message my profile (then More >> messages).

Or better, email me at support@robertinventor.com

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. Robert Walker

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SHORT DEBUNKS (NEW)

I have just started a new page called “short debunks”. This has all the substantial debunks I do for the Facebook group. As you see I do many more of these, often ten a day, far too many to write them all up as blog posts., It only has the most recent short debunks, it would take ages to update it with older ones.

But if there is something scaring you in the news you may find I have debunked it here already.

. Short debunks

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