WASHINGTON—The Republican-named U.S. Supreme Court majority doesn’t let anything get in the way of helping Trump in any way possible. In yet another piece of evidence, the justices seemed skeptical of the law that covers two of the four charges against Donald Trump for aiding, abetting and ordering the Jan. 6, 2021 U.S. Capitol Trumpite invasion and insurrection.
The case, heard April 16, didn’t involve Trump himself. Joseph Fischer, one of the 350 invaders convicted under the law involved, challenged its constitutionality. The justices’ reactions indicated they could toss the law, or at least this use of it.
The law makes it a felony to “corruptly alter, destroy or mutilate a record with the intent of making it unavailable for use in an official proceeding,” or to “otherwise obstruct, influence, or impede such a proceeding.”
Fischer, a former Pennsylvania state trooper, says the government overstretched when it used the law against him for his role on January 6. He smashed windows and assaulted at least one police officer.
If the justices toss the 2012 law, the ruling would automatically toss out two of the four charges in Special Counsel Jack Smith’s D.C. case against the former Republican President Donald Trump. Those charges state Trump obstructed and conspired to obstruct a governmental proceeding, namely the counting of electoral votes on that January 6.
Fischer’s case, to be decided by the end of June, isn’t even the most-important Trump case on the court’s agenda.
That will come on April 25, putting the justices—including Trump-named Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh—on the spot in deciding whether Trump’s presidency entitles him to permanent and perpetual immunity from prosecution.
If they say “yes,” then all the federal cases, in D.C. and Florida, fall. They cover other charges around the attempted coup d’état and the illegally purloined secret papers Trump took from the White House to Mar-a-Lago.
There’s a reason for the right-wing tilt. The late Justice William Brennan, talking to his law clerks, once asked them what’s the most important factor in any Supreme Court case. They were befuddled. His answer was to hold up all four fingers of one hand and his thumb. That’s how many justices are a court majority.
Fulfilling a promise
The three justices, fulfilling a Trump campaign promise, are three of Brennan’s five fingers of the ideological right-wing majority on the High Court.
“The Supreme Court follows the election returns,” famed columnist Finley Peter Dunne, aka Mr. Dooley, wrote during the Gilded Age of the 1890s. Not this court’s majority. And polls show the court’s credibility has tanked.
The long line of cases, stretching back years, indicates the court’s sharp right turn, regardless of precedent or anything else, in deference to its ideology.
Dobbs vs Jackson Women’s Health, where the justices two years ago threw out the federal constitutional right to abortion, is the most prominent.
But it’s not the only one. Indeed, workers and their allies saw the signs even before Dobbs got most of the country mad at the court majority—and at the president, Trump, whose justices imposed it.
- For workers, one red flag was a GOP-majority ruling that mandated arbitration—which companies win 90% of the time—overrides union contracts.
And the other, bigger red flag, was the Janus decision five years ago declaring every state, municipal and federal worker can be a potential free rider, able to use union services and union protections without paying one red cent for them.
There are other cases which show ideology uber alles among five of the six Republican-named justices: Coney Barrett, Gorsuch, Kavanaugh, Samuel Alito and Clarence Thomas.
The sixth, Chief Justice John Roberts, is conservative, too. But he’s traditional, increasingly concerned about the court’s credibility, and increasingly isolated as he seeks a middle ground which isn’t there.
Some of the other cases which will or have exposed the massive right-wing tilt:
- At the height of the coronavirus pandemic, OSHA ruled firms have a duty to protect their workers and their customers against the spread of the modern-day plague. The majority said OSHA went too far.
- Last month, the justices heard a right-wing challenge to federal authority to approve the abortion drug Mifepristone. The so-called Alliance for Hippocratic Medicine, an anti-abortion front group, challenged the Food and Drug Administration’s OK of it, which occurred 20 years ago.
Rallied abortion advocates
Outside the court, the Women’s March rallied abortion rights advocates. The justices inside didn’t hear them. “The courts have been stacked with radical politicians cloaked in robes to find a fast-track to a Supreme Court completely captured by their agenda,” said Women’s March Executive Director Rachel O’Leary Carmona.
“This illegitimate, kangaroo court case started with anti-abortion extremist Judge (Matthew) Kacsmaryk in Amarillo, Texas, and could now strip millions of women of their rights to make decisions about what is best for their bodies and their families.
“With the 2024 election approaching, and the GOP’s attack on women’s bodily autonomy growing disturbingly stronger every day, it’s crucial to shine a national spotlight on access to Mifepristone and for Americans to understand what is at stake for women not only in this court case, but at the polls in November.
“The reality of a nationwide abortion ban and limited access to reproductive health care is not a hypothetical. It’s happening right in front of us for all Americans to see.
- Workers and their allies have their protections in the crosshairs, too, notably from Justice Gorsuch. On January 17, the justices heard arguments challenging “Chevron deference” and appeared ready to throw it out.
That 40-year-old precedent says that unless a federal regulatory agency really goes out of its way to break the law establishing it, or provides no evidence to back its decisions, courts and judges should defer to its expertise.
Toss that out, and judges, with little to no experience in details of a rule—be it an OSHA rule, an overtime pay rule, a family and medical leave rule or anything else—would be writing the rules. That’s assuming, of course, that a gridlocked Congress doesn’t. The agencies, especially the National Labor Relations Board, would be left powerless.
Gorsuch assailed Chevron deference when he sat on the 10th U.S. Circuit Court of Appeals in Denver. His second reason to toss Chevron may be personal. That 1984 case pitted the oil company against Ronald Reagan’s EPA—then headed by Anne Gorsuch, the justice’s mother.
- The court majority let stand a Fifth Circuit decision making organizers of demonstrations—including civil rights and workers’ rights protests—financially liable for damages if a participant, or even an agent provocateur, turns violent and causes property damage or physical harm. The ruling chills protests in Texas, Louisiana—where the case began—and Mississippi.
- The post-presidential immunity ruling may not be the court majority’s last word this year involving Trump. On April 17, right-wing Ohio Secretary of State Frank LaRose—who finished third in the U.S. Senate GOP primary—stated Trump will be on the fall general election ballot, but Democratic incumbent Joe Biden may not be.
LaRose explained Ohio has a hard and fast August 7 deadline for political parties to officially certify their presidential and vice-presidential nominees. The Democrats knew that, he said, but set their nominating convention for Biden and Vice President Kamala Harris for late August in Chicago. Blow the deadline and your name’s not before Buckeye State voters.
LaRose’s announcement leaves Biden and Ohio Democrats with two options: Try to get a waiver of the deadline through the Republican-gerrymandered state legislature, which is unlikely, or take the case to court, all the way up to the Supreme Court. The Dems haven’t decided yet what to do.
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