As the New Year dawns, America girds its loins for its most crucial national election since 1864, when Abraham “Rail Splitter” Lincoln ran against his former Commanding General of the Army, George B. “Fuss and Feathers” McClellan. The major issue then was, of course, America’s Original Sin, racism, embodied at the time in a fratricidal armed conflict over slavery.
Not that the defeated Confederate revisionist historians who invented the Lost Cause would agree, naturally – they insisted that the shooting started over the price of cotton and states’ rights.
Today, thanks to Nixon’s Southern Strategy, the descendants of those bigoted propagandists are all Republicans, and vociferously insist that, among other things, the secession documents of all eleven Confederate states notwithstanding, not only should nobody acknowledge that slavery was the cause of the Civil War, but also that discussions of slavery, books that mention slavery and documentaries depicting slavery should all be banned from American educational curricula and libraries because their presence there might make white students feel uncomfortable.
With respect to that, as regular readers of this Web log know, I maintain that the Civil War started in 1789, shortly after ratification of the US Constitution, and has never ended. That blood-soaked abattoir of American youth which lasted from 1861 to 1865 was just its most obvious and overt manifestation. And as the events of January 6, 2021 portend, it appears that the Civil War might be close to boiling over again. Certainly, that’s what’s being predicted by pundits of both the Left and the Right, should the efforts to revoke the current Republican front-runner’s eligibility for federal office for violating Section Three of the Fourteenth Amendment actually succeed in court. That part of the US Constitution, by the way, reads as follows:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
It’s two sentences – the first, I will admit, in its length and complexity, reads like something I would write, while the second is more like something my friend Cerise or my private secretary Gretchen might tack on in a mildly sardonic tone after I had finished with another of my typically orotund pronouncements. Reading it, I’m trying to imagine two-thirds of both houses of today’s Congress agreeing on anything – not an easy task; actually, it’s easier to imagine Putin falling out a twentieth story window.
That first sentence, on the other hand, has lately received quite a bit of attention from Donald Trump’s lawyers. They have filed a number of motions about it, claiming, for instance, that it doesn’t apply to him because the president is not “an officer of the United States.” Another example of their legal brilliance asserts that the oath referred to is one to “support the Constitution” while Trump took an oath to “preserve, protect and defend the Constitution” and therefore presto, Bob’s your uncle, olly-olly-oxen-free-oh and no tags back, Trump’s off the hook, how about that?
Then, of course, there are more motions about other aspects of Section Three, like those quibbling about what an “insurrection” is, motions about what “aid and comfort” means, and who “the enemies thereof” are supposed to be, and motions about whether Congress is required to pass legislation to implement Section Three or if it is what constitutional lawyers call “self-executing,” like requirements for the president to be a native born citizen and at least thirty-five years of age. All of these should be of considerable delight to the conservative members of the court who claim to be orginialists. There’s certainly no problem imagining them poring over their nineteenth-century dictionaries to find out what “insurrection” meant then, or wading through long-winded and Byzantine congressional debates from 1866 to find out if anybody mentioned whether Section Three applies to the president of the United States or not.
And then there’s Trump’s contention that all of those lawsuits – and the felony cases against him in federal and state courts as well – should be dismissed, more or less because, as Nixon put it, “if the president does it, it’s not illegal.” There’s a motion about that, too, in the District of Columbia federal circuit court and, in accordance with the due processes of the American legal system, all this stuff is headed to land squarely in the Supreme Court’s court, so to speak. Not that they have to take any cases, and it’s a safe bet they won’t choose to hear that last one if the lower court rules that a president does not, in fact, have the Divine Right of Kings (or, as Trump’s lawyers put it, have “an outer perimeter of his presidential duties” which includes engaging in conspiracies to overthrow the US government). But the other ones may not be so easy to dodge; the Supreme Court more or less had no choice but to grant certiorari for at lease one of the Section Three cases from Colorado and Maine, and they picked Colorado, which makes sense in that it came out of the state supreme court instead of being the result of one individual’s decision, as was the situation in Maine. After all, the alternative would be turning the 2024 election into a total circus, with Trump (and probably, in grand MAGA Republican revenge style, Biden) thrown off the ballot in some states and on the ballot in others.
Which is why I was more or less expecting someone from the Supreme Court to contact me for advice about this mess. And that happened this morning, bright and early, when a certain Thomas Russell called my office from the 202-479 exchange and told Gretchen he urgently needed a free initial consultation to discuss a few things about the Trump legal situation with me. She worked him in during my lunch hour, which meant I had to deal with him at my desk between bites of sushi from Kyojin, which is where I have been ordering it from since SEI closed.
Russell: Hello, Tom Collins?
Russell: I’m calling from the Supreme Court; I’m a… clerk who works for Chief Justice Roberts.
Tom: And you’re Thomas Russell, I presume?
Russell: Uh… I’m him… ah… that’s me, I mean.
Tom: Any relation to the Thomas Russell?
Russell: The Thomas Russell?
Tom: Yes, the Thomas Russell who was the first clerk ever to work for the Supreme Court.
Russell: You… knew that?
Tom: I did. He was hired by Justice Horace Gray in 1882. Are you his great-grandson or something like that?
Russell: Um… yeah… I’m his, uh… great-great-grand nephew.
Tom: So, law runs in the family, eh?
Russell: Evidently, yes.
Tom: May ask, has anyone ever told you that you sound exactly like Chief Justice Roberts?
Russell: Why… no, never. Nobody has ever said anything like that to me.
Tom: Really? Because I’ve heard Justice Roberts speak on a number of occasions and I could swear…
Russell: I have a cold!
Tom: Excuse me?
Russell: I said, I have a cold! That’s probably why you… think I sound like Chief Justice Roberts.
Tom: Oh, sure, that’s got to be it, of course. Get some honey and lemon.
Russell: Honey and lemon?
Tom: Honey and lemon in hot water. Best thing for a cold.
Russell: Oh, I see.
Tom: Shot of good bourbon in that helps a lot, too.
Russell: Yes, well, thanks for the tip.
Tom: My pleasure, Your Honor.
Russell: Thanks… I mean, you’re not supposed to call court clerks “Your Honor!” I’m a clerk, not a justice!
Tom: Oh, right, of course you are. My apologies. So what, may I ask, is the nature of our consultation to be this fine January afternoon?
Russell: Well, as you may be aware, the Supreme Court has had some minor image problems lately.
Tom: Minor? After rulings like Dobbs v. Jackson, West Virginia v. EPA, New York Rifle v. Bruen, Fair Admissions v. Harvard, Seila Law v. CFPB, Biden v. Nebraska, 303 Creative v. Elenis and the Clarence Thomas bribery scandal, the Supreme Court is about as popular as gonorrhea.
Russell: I beg to differ, sir! We are most definitely more popular than gonorrhea!
Tom: Oh, maybe. But not more popular than herpes.
Russell: We are too more popular than herpes! And cancer, and polio, and rickets, and strokes, and syphilis and covid and smallpox, and fulminating acne, and genital warts and the black plague!
Tom: Okay, okay, be that as it may in any case, what, specifically, about that image problem, whatever its degree, would you like to address?
Russell: Well, uh… you know… how do we make it better?
Tom: For starters, I think you could do something about removing the appearances of impropriety that so rankle the public.
Russell: What would you suggest?
Tom: Have Clarence Thomas recuse himself from ruling on any of Trump’s Fourteenth Amendment Section Three appeals due to his wife’s involvement in the January 6 coup plot.
Russell: What! Clarence Thomas’ wife isn’t on the Supreme Court. She doesn’t even work for the Supreme Court! How could you possibly even suggest such a thing?
Tom: I think perhaps your response just now contains the answer to that question.
Russell: What’s that supposed to mean?
Tom: I’m beginning to think it means you’re not going to consider it.
Russell: You got that right.
Tom: I thought so. All right then, let’s see… the Iowa caucuses are about a week away, and the New Hampshire primaries are a week after that, and the court has oral arguments on the Section 3 appeals set for February 8. So it looks like you guys are already behind the curve and you’d better hand down a decision before the South Carolina Republican primary runs up and bites you on the tuchus February 24.
Russell: But if the court rules that Trump is subject to Section 3, there may well be violent rioting by his supporters.
Tom: Oh, yeah, count on that. And if, however, the court rules that Trump is not subject to Section 3, the justices in the majority will have to bend over backwards tying constitutional law into such knots as would be the envy of a children’s party clown balloon wizard in order to avoid looking like a conniving coterie of lying charlatans, brazen hypocrites, brain-damaged idiots, and / or pathetic, sniveling, boot-licking political toadies.
Russell: And neither situation is going to help with the court’s image or popularity.
Tom: Yeah, so assuming the majority are going to vote to keep Trump on the ballot, what kind of children’s party balloon creation knots are the conservative justices thinking about tying the Constitution into, anyway? Well, sure, elephants, of course, but what else… giraffes, perhaps? Baboons? Weasels? And how about a nice big red MAGA balloon crown for His Majesty Donald John Trump, the Great Day One Dictator?
Russell: We’re… I mean, I believe the justices are considering rejecting the petition to remove on the grounds that Section Three is not self-executing.
Tom: Despite the fact that it has been used many times before without an enabling act of Congress?
Russell: But not in the case of a presidential election.
Tom: Forgive me, I’m not a lawyer – that makes a difference, how?
Russell: Uh… as I said, it’s being considered.
Tom: Well, anyway, let’s hope those clowns at least have fun tying the highest law of the land into children’s party balloon creation knots, and that none of the justices will need a chiropractor after bending over backwards so much while doing it. Pardon my candid observation here, but speaking as someone who isn’t a lawyer, it appears that the present Supreme Court majority doesn’t care about legal procedure, precedent, logical consistency, philosophical consistency or much of anything else. It seems they just rule whatever way pleases their own primitive, atavistic egos and then call it “originalism,” “texualism” or “intentionalism,” depending on which one sounds best to them the moment they say it.
Russell: Damn straight! We’re the [expletive] Supreme Court and we can do whatever the [expletive] we want! Uh… that is… I mean… the justices always temper their decisions with pragmatism… although it may not always be evident to a layperson.
Tom: I think your… shall we say… Freudian slip there a moment ago is something important to consider.
Russell: Slip? Freud? I don’t recall discussing dreams or sex. What are you talking about?
Tom: A Freudian slip doesn’t necessarily have anything to do with dreams or sex. A Freudian slip is an utterance or action that reveals something hidden in the subconscious. And what’s hidden in your subconscious mind – and, I am pretty sure, in the subconscious minds of justices Alito, Barrett, Gorsuch, Kavanaugh, Thomas, and, of course, your… boss… John Roberts, is the attitude that the Constitution means whatever the Supreme Court says it does the day the Supreme Court says it.
Russell: Absolutely not! We do not think… I mean, I am certain none of the justices you named think that.
Tom: Oh, I disagree, it’s obvious that they do. But my point here is that because they do, that’s their path to improved image and popularity.
Russell: I’m not sure I understand what you’re saying.
Tom: I’m saying that the Constitution means exactly what the majority of the Supreme Court says it does, and moreover, I’m saying they should lean into the concept.
Russell: How? Doing what?
Tom: Get out a pad and a pencil, open a text file on your iPad, or whatever you use for that sort of thing, and take down this list of things the Supreme Court can do to improve its popularity after deciding the various Trump appeals in his favor. Ready?
Russell: Uh, yeah. I’m ready. Go ahead.
Tom: To counteract the effects of its recent and impending rulings, improve its image and increase its popularity with the America public, the Supreme Court should find the following things unconstitutional: 1. Printer ink sold for prices more than 15% above its cost of production
2. Parking tickets
3. Computer applications that suggest an amount to tip
4. Telephone solicitors
5. Running the same advertisement on the same TV channel more than once a day
6. Use of uptalk or vocal fry in any audio communication funded by public money
Russell: Hold on, hold on, I’m typing with my thumbs as fast as I can.
Tom: OK. Ready now?
Russell: Right, go ahead
Tom: Okay, continuing: 8. Investment banking
9. Federal Reserve interest rates higher than two percent
10. Traffic cameras
11. Any requirement to pay a combination of federal, state and local taxes that adds up to more than 25% of adjusted gross income
12. Health professionals telling people they need to lose weight
13. Airline seats less than twenty-four inches wide
14. Viagra costing more than fifty cents a dose
15. Towing a vehicle without a court order and twenty-four hours notice. Got that?
Russell: Yes, I got all of them.
Tom: Plenty more where that came from.
Russell: I can see how these rulings would vastly improve the Supreme Court’s image and public popularity, but won’t it need to have some… cases about these things… to consider so it can issue them?
Tom: You’re the Supreme Court clerk, so you tell me – where in the Constitution does it say that the Supreme Court shall only consider actual legal cases?
Russell: Well, all right, Article III doesn’t say that. It says that judicial power shall extend to all cases.
Tom: It does, indeed. And what does it go on to say?
Russell: Um… that judicial power also extends to controversies.
Tom: Exactly. Now, one moment while I pull this up… yes, there it is. That clause of Article III Section 2 reads, quote, “Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
Russell: And that clause was changed by the Eleventh Amendment.
Tom: Right. Which reads, “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” See anything there prohibiting involvement of the judiciary in controversies?
Russell: No, of course not. The Eleventh Amendment is about sovereign immunity.
Tom: So, who better than the current conservative Supreme Court majority to arrive at the realization that “controversies” as understood in the original intent of the Framers and defined in eighteenth century dictionaries, means, “controversial social issues” today? And, once they’ve done that, the only actual test case they need is one which contends that a federal court can issue a ruling without an actual case. In other words, a case where the Supreme Court’s ruling can be: yes, Article III allows that and also, Article III Section 2 only allows the Supreme Court to do it.
Russell: And where do we get a case like that?
Tom: If your boss were to drop the appropriate hints at a few of his Federalist Society soirées, I’m sure that one would quickly bubble up from the circuit courts.
Russell: Sounds pretty radical. I wonder if it could be… feasibly effectuated. I mean, the concept just seems to come out of… nowhere.
Tom: And where did the decision in Marbury v Madison come from? Where in the Constitution does it say the Supreme Court shall interpret the Constitution, declare whatever laws it doesn’t find to be consistent with its interpretation to be unconstitutional and that shall be the law of the land?
Russell: It doesn’t.
Tom: But since 1803, that’s what the Supreme Court has been doing. And doing it on the basis of a decision that came out of, like you said – nowhere. So, why not do it again?
Russell: Well, it’s something to consider, that’s for sure.
Tom: You bet it is, and think about this – if Trump gets re-elected, it’s dollars to donuts somebody like Jared Kushner, Stephen Miller or Vivek Ramaswamy with put a bug in his ear about precisely what I just told you. And after that, Trump will be hounding the Supreme Court conservatives night and day to do it. So why shouldn’t your boss get a jump on that before it happens? I mean, who needs a dictator when you have a 6 to 3 Paleolithic ideological majority on the Supreme Court?
Russell: Point taken. I’ll definitely brief Chief Justice Roberts on all of this.
Tom: Good, and when you do, tell him I said, “Remember, you’re the leader of the [expletive] Supreme Court majority and you can do whatever the [expletive] you want.
Russell: I certainly [expletive] will! Thanks!
Tom: Great! And now I can finish my [expletive] lunch. Goodbye!