The Social World

Tag: Supreme Court

  • Federal judges crave the spotlight

    Federal judges crave the spotlight

    In the great injunction sweepstakes that have followed Donald Trump’s second administration like a shadow, we have seen district court judges with a hankering for executive power attempt to play president in more than a hundred cases from immigration and tariffs to funding various executive branch agencies, so-called trans-rights, DEI and climate change.

    Some of these injunctions and temporary restraining orders are still pending. Many, perhaps most, have been resolved by the Supreme Court in ways that favor the Trump administration, not always categorically but usually by affirming the broad scope of executive power envisioned by Article II of the Constitution. “The executive Power,” quoth that magisterial document, “shall be vested in a president of the United States of America.” “A president,” mind you, a single one. Not a president and hundreds of district court judges.

    The rousing start to Article II of the Constitution is neatly put, isn’t it? But those judges took it as a challenge. Trump is an affront to what every right-thinking, i.e., left-leaning, person believes. He wants to make America more prosperous, freer and more secure than it has become in the hands of Democrats and other disciples of hegemonic bureaucracy.

    He moved quickly to secure the border.  Can you believe it? He is deporting scads of people who are here illegally. Outrageous. He outlawed the racist practice of DEI throughout the federal government and made federal funds contingent upon ending the scam. Horrible. He thinks that the military should be an institution specializing in fighting wars, not promoting “social justice.” Clearly he must be stopped.

    Like many pro-Trump commentators, I have weighed in early and often on this legal-political charade. It is a legal charade because what we have witnessed since Trump took office again in January 2025 has been a mind-boggling misuse and hypertrophy of judicial power. Whoever would have thought that a lowly district court judge (there are some 700 of them) would successfully arrogate to himself the authority to tell the President what executive agencies he should pay for and which he should close?

    It is a political charade, or worse, because what we are witnessing is the triumph of partisan passions uber alles. In case after case, judges ruled to stymie the executive branch for one main reason: because it is overseen by President Trump.

    Nevertheless, until recently, most of the cases brought had a certain weight or specific gravity. It matters, after all, whether the border is sealed, whether DEI is allowed to trump merit, whether criminal aliens are allowed to roam the streets, whether fantasies of a climate emergency are allowed to choke off the robust exploitation of our national energy resources. In many instances, the matters at hand are important. It’s just that judges think that they, having correct (i.e., politically correct) beliefs, are therefore empowered to decide how public policy should proceed. It is they who decide what happens, not this strange bumpkin from Queens who somehow bamboozled the voting public into shoehorning him into the White House.

    Clearly, there is a lot of injunction envy going around official judicial circles these days, especially in the deep blue redoubts that specialize in that species of hubristic bullying. Is there a faster way to get your name and your mug plastered across the news sites? That, anyway, would seem to explain Dabney L. Friedrich, a district court judge for Washington, DC. I try to wheel out Karl Marx’s one certified amusing mot at least once a year. It is time. In The Eighteenth Brumaire of Louis Napoleon (1852), Marx cites Hegel’s observation that great figures and events tend to occur twice. He forgot to add, says Marx, that they appear first as tragedy, then as farce.

    It matters whether we have a secure southern border. It is important that the Department of Government Efficiency be allowed to help curb spending and thereby make a dent in our unsustainable federal debt (currently an eye-watering$37 trillion). But how about power washing, repointing and painting the Eisenhower Executive Office Building, the sprawling excrescence just west of the White House? Mark Twain called the 1888 structure the “ugliest building in America.” Eisenhower didn’t much like the eponymous building either. But it is home to some 1,500 federal worker bees, including the Vice-President.

    The complex, looming building, designed by Alfred B. Mullett in a sort of super-sized Second Empire style, sits like a giant gray toad next to the White House. On November 12, Trump told Fox News presenter Laura Ingraham that he wanted to spruce up the grimy behemoth and paint it white (no, not gold, as some were saying).

    Not so fast, said Judge Friedrich. The preservationist lobby prompted her to enjoin the administration from doing anything in the way of architectural ablutions at least until the end of the year. The administration agreed. But the headlines have been hilarious. “Federal Judge Dabney L. Friedrich has now ordered Trump not to power wash the Eisenhower Executive Office Building.”

    Oh dear. What will they think to prohibit next? “Federal Judge Makeme A. Offer prohibits Trump from playing golf.” “Federal Judge Whack A. Mole orders Trump never to use gold leaf again.” The Entertainment Committee, as Bill Buckley liked to say, never sleeps.

    This article was originally published in The Spectator’s December 8, 2025 World edition.

  • Is Trump’s $2,000 tariff dividend plan loopy?

    Is Trump’s $2,000 tariff dividend plan loopy?

    It’s becoming increasingly taxing for Donald Trump to defend his tariff policy. His latest gambit is to float the prospect of a $2,000 rebate to Americans from the tens of billions that the federal government has collected in tariffs. But will this prove any more successful than his previous attempts to justify his loopy tariffs?

    With the Supreme Court apparently poised to strike down his tariffs as a form of revenue collection designed to perform an end-run around Congress, Trump is scrambling. As usual, bravado prevails. On Sunday, he declared, “A dividend of at $2000 a person (not including high income people!) will be paid to everyone,” the president said on Truth Social.” Trump also dismissed his detractors as “FOOLS!” In his view, “We are taking in Trillions of Dollars and will soon begin paying down our ENORMOUS DEBT, $37 Trillion. Record Investment in the USA, plants and factories going up all over the place.”

    What specific factories Trump meant was left unsaid. The truth is that a small coterie of tech firms is driving the American economy by building AI centers. To fund them, companies are relying on exotic debt-financed options. If that bubble pops, it could be 2008 all over again – or worse.

    Speculation about a 1929 redux is on the rise. Former Securities and Exchange Commission official William A. Birdthistle notes that Trump has been “has been firing regulators and vigorously tearing down the guardrails that have kept our markets thriving for nine decades.” As he bellows about the efficacy of high tariffs, Trump himself seems intent on replicating the 1930 Smoot-Hawley tariff which ensured that America tumbled even deeper into the Great Depression. At least Smoot-Hawley was passed by Congress. Trump is doing it singlehandedly while Republican lawmakers cower in fear at the consequences.

    The difficulty for Trump is that in promising an economic boom, he has highlighted his responsibility for inflation and unemployment. Voters, as the recent election showed, remain as unhappy about the economy as they were during the Biden era, when the White House also issued a steady stream of happy talk. In July 2021 Biden dismissed the notion that inflation would prove to be a persistent problem: “Our experts believe, and the data shows, that most of the price increases we’ve seen are expected to be temporary.”

    Speaking at the American Business Forum in Miami this past Wednesday, Trump insisted that nothing less than an ”economic miracle” was taking place under his leadership. He also invoked his favorite adverb, tremendously, to state that “Americans are doing tremendously now.” A day later, he said, “I don’t want to hear about affordability” – a line that is certain to feature in Democratic campaign ads. Trump is also touting a new Walmart Thanksgiving meal as 25 percent cheaper than last year, but it also has six fewer items than the 2024 basket. The most recent consumer price index shows that grocery prices were up 2.7 percent in September compared to a year ago. So much for whipping inflation now.

    Then there is the government shutdown. Disrupting air travel, terminating SNAP benefits and allowing health insurance premiums to soar even as Trump sends billions to Argentina is hardly a recipe for promoting economic growth. Some Republicans are getting antsy. “We need to deal with [health care] now because, number one, it’s the right thing to do, just morally,” New Jersey Congressman Jeff Van Drew said on Fox this past Wednesday.” “Number two, we’re going to get killed” in the 2026 midterm elections.

    But Trump has other concerns. On Friday night, he threw another opulent gala event for his chums at Mar-a-Lago, complete with opera singers and ice sculptures. As Republican lawmakers fret about their futures, Trump continues to party on.

  • Will SCOTUS strip seats from Democrats?

    Will SCOTUS strip seats from Democrats?

    The headwinds facing Democrats in Congress have been blowing powerfully for some time now. On culture, the economy, law enforcement and immigration the party is on the defensive as it casts about not only for a winning message, but leaders able to persuade the public the party remains relevant in the age of Trump.

    Add to that list of hurdles the Supreme Court.

    The court’s conservative majority has delivered one blow after another to treasured progressive causes including transgender rights, maintaining the federal workforce and presidential authority. Now the court is contemplating changes to the Voting Rights Act that could, if carried out, cause Democrats to lose a dozen or more seats in the House, all of them held by minorities.

    Further losses for House Democrats couldn’t come at a less opportune time. While the Republican House majority is razor thin, Democrats have yet to hit on a theme that could plausibly drive a campaign to take back control. Off year elections typically favor the party out of power, but with opinion polls showing historically low ratings for Democrats nationally, the picture is bleak.

    That is why the case before the Supreme Court is so problematic for Democrats. During oral arguments Oct. 15, Republican appointed justices seemed to suggest they were open to restricting and perhaps even ending a provision of the Voting Rights Act that permits state legislatures to consider race when drawing up congressional districts. It’s not at all clear that the court, if it decides to strike down or dramatically change the law, will issue a ruling in time for next year’s congressional elections, though the possibility cannot be ruled out.

    Most of the vulnerable districts are in the south. Were the court to curtail the act, some 30 percent of the Congressional Black Caucus, might lose their seats.

    The case, Louisiana v. Phillip Callais, centers on a redistricting battle in Louisiana following the 2020 census. Population changes forced the state Legislature to redraw the state’s seven congressional districts to ensure that the state’s voters were evenly distributed among them. A group of black voters challenged the plan, arguing that by creating only one black majority district, the state had intentionally discriminated against African American voters, who composed one third of the state’s residents.

    A federal district court judge agreed and in response, Republican leaders preemptively came up with a new plan that created a second black majority district while at the same time protecting the seats of House Speaker Mike Johnson and majority leader Steve Scalise, both Republicans.
    Deploying a dash of Constitutional finesse, the Republican authors of the new map declared that even though they had created the state’s second black majority district, the primary goal was not to redress a racial injustice, but rather to insure the Republicans’ advantage in the upcoming congressional elections. In the abstruse and often murky precincts of Constitutional law, the Republican map drawers seemed to be creating a defense against a line of attack that they had impermissibly used race in their redistricting plan.

    It didn’t work. A group of white voters sued, alleging the map breached the Equal Protection Clause of the 14th amendment by engaging in racial stereotyping to design the district, and they asked the court to throw out the redistricting plan.

    During oral arguments, the court’s conservative justices appeared open to the idea of restricting or perhaps even overturning section 2 of the 1965 Voting Rights Act, which in broad terms restrains state legislatures from engaging in the practice of racial gerrymandering, or intentionally distributing minority voters among multiple districts in a way that leaves them short of a majority.

    Over time, the Supreme Court has interpreted the law to mean that state legislatures may consider race among a number of other factors, including incumbent protection and geographic consistency, so long as the purpose of the plan is to remedy past discrimination.

    Justice Brett Kavanaugh queried Janai Nelson, president of the NAACP Legal Defense and Educational Fund, who argued in favor of keeping the second black majority district, on whether section 2 ought to be time limited in some way. The implication of course was that maybe the time had come to end the practice.

    “As you know… this court’s cases in a variety of contexts have said that race-based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but that they should not be indefinite and should have an end point,” Kavanaugh said. “And what exactly do you think the end point should be or how would we know for the intentional use of race to create district.”

    Later in the hearing, Justice Neil Gorsuch pointedly asked whether creating a black majority district would require that a state intentionally discriminate on the basis of race by excluding white voters.

    At another point, Justice Samuel Alito seemed to imply that apportioning white or black voters from one district to another might not have anything to do with racial stereotyping but rather the result of partisan politics, since in many jurisdictions whites overwhelmingly vote Republican while blacks vote largely for Democratic candidates.

    Under those circumstances, what might look like racial stereotyping instead is simply one party or another seeking to pack a district with their voters.

    “If it happens to be that people of one race or another race overwhelmingly prefer one of the political parties, does that transform the situation into racial voting, or is that just partisan voting?” Alito asked.

    Gerrymandering, the practice of creating congressional districts to capture certain voting blocks and gain partisan advantage, dates back to former Massachusetts Gov. Elbridge Gerry, an early master of the art. In 1814, Gerry, a signer of the Declaration of Independence, signed off on a redistricting plan with a state legislative district so misshapen that critics said it resembled a salamander. It wasn’t long after that “gerrymandering” entered the political lexicon.

    The Supreme Court has periodically weighed in on the practice, usually giving great deference to state legislature. In the 2019 case Rucho v. Common Cause, it even declared that there was no role for federal courts in restricting or controlling most gerrymandering disputes, since it was fundamentally a political function and a prerogative of state legislatures.

    The court, however, has from time to time stepped into redistricting disputes that involve racial discrimination and that are brought under the Voting Rights Act. After the 2020 Census, when South Carolina state legislators redrew the boundary lines of Republican congresswoman Nancy Mace’s coastal district and removed about 30,000 black voters to make it more reliably Republican, the court upheld the new map saying the challengers had not proven that race was a predominant factor.

    The Supreme Court agreed that the redesigned district’s purpose was to maximize Republican votes, not exclude blacks.

    Earlier, in a 2013 opinion, chief justice John Roberts, wrote the court’s majority opinion overturning section 5 of the voting rights act, which required certain states with a history of discriminatory behavior to get preapproval from the Justice Department for changes to voting procedures.

    Each decision marked an incremental change, but the overall effect has been to ratchet back judicial oversight of elections. If the Supreme Court curtails or eliminates section 2 of the voting rights act, the effect will be to further diminish the federal role.


  • Can Trump end mail-in voting?

    Can Trump end mail-in voting?

    President Donald J. Trump, burned in 2020 at the height of Covid by some states’ shenanigans ranging from rule changes regarding absentee voting to registration requirements, is now on a quest to reform mail-in voting and traditional ballot tabulation machines. On August 18, the President posted the following missive on Truth Social:

    “I am going to lead a movement to get rid of MAIL-IN BALLOTS, and also, while we’re at it, Highly ‘Inaccurate,’ Very Expensive, and Seriously Controversial VOTING MACHINES, which cost Ten Times more than accurate and sophisticated Watermark Paper, which is faster, and leaves NO DOUBT, at the end of the evening, as to who WON, and who LOST, the Election.”

    Some of the voting practices the President has critiqued are unusual, to say the least. For example, eight states comprising nearly 20 percent of the U.S. population automatically send ballots to every registered voter, alive and sometimes dead. It appears that only Switzerland follows a similar practice. Scholars have highlighted the dangers of robo-voting by means of the unusually unreliable United States Postal Service. Even The New York Times, the flagship of the liberal press, declared that “votes cast by mail are less likely to be counted, more likely to be compromised, and more likely to be contested than those cast in a voting booth.” Ending mail-in voting altogether would be a heavy lift, given that nearly one-third of ballots cast in 2024 were cast by mail; in 2020, mail ballots accounted for 43 percent of votes cast.

    Moreover, fourteen states and Washington, D.C. have no voter identification requirements. This is a vulnerability highly susceptible to manipulation. About 1200 cases of voter fraud have been documented. The Supreme Court recounted this unfortunate history while upholding Indiana’s state photo identification laws:

    “It remains true, however, that flagrant examples of [voter] fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor – though perpetrated using absentee ballots and not in-person fraud – demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.”

    On Truth Social, the President went further and questioned the role of states in federal elections:

    “Remember, the States are merely an ‘agent’ for the Federal Government in counting and tabulating the votes. They must do what the Federal Government, as represented by the President of the United States, tells them, FOR THE GOOD OF OUR COUNTRY, to do.”

    In fact, Article I, Section 4 of the United States Constitution grants states the authority to prescribe the time, place and manner of holding elections for most federal elections, although Congress may amend these rules, and has, repeatedly over the years. This joint state and federal authority is exercised under the watchful eye of the federal executive branch, of which the President is the head. Violations of federal voting laws may be prosecuted by the U.S. Justice Department. So it takes a village, and oh so many village chiefs, to enforce the relevant voting laws across the country.

    The power to vote is a precious and fundamental right. For millions of Americans, it is a freedom bought by blood. It ought not be diluted by fraud or lightly revoked by disenfranchisement. The challenge for the President and both major political parties is to find the appropriate balance between integrity and access. We all are responsible for maintaining one of our nation’s defining values in retaining lawful and open access to the ballot box, thereby ensuring the people’s enduring right to choose their own government.

  • How to reform judicial review responsibly

    L.W., a transgender girl, her parents, and her doctor agreed that it would be good and medically appropriate for her to receive gender-affirming hormone therapy. The state of Tennessee, where L.W. lived, passed a statute in 2023 prohibiting transgender minors from receiving such treatment. Did the statute discriminate against L.W. on the basis of sex? The US Supreme Court said it didn’t.

    In 2023, the British government planned to send to Rwanda people who tried to get to the United Kingdom on small boats and then seek asylum. Would that policy violate the asylum seekers’ human rights because the conditions in Rwanda were unsafe? The UK Supreme Court said it did.

    Starting after 1945, and accelerating as the 20th century ended, high courts around the world faced questions about whether statutes and executive policies violated constitutional law, human rights, the rule of law, and many other legal doctrines identifying fundamental rights. In the transgender case the US Supreme Court had to decide whether Tennessee’s statute violated a constitutional guarantee of equality; in the Rwanda asylum case the UK Supreme Court had to decide whether the executive policy violated international human rights rules. Polemicists described this as the rise of a “juristocracy”; more neutral observers identified a “global expansion of judicial power.” Polemicists against juristocracy say that courts are taking away our ability to govern ourselves – our ability to choose what we think are the best policies.

    Nearly everyone now believes in some concept of human or natural rights – but these controversies arise because fundamental rights don’t define themselves. What is sex equality? What procedures satisfy requirements of basic fairness? How do we bring the idea of free expression to ground when a legislature regulates today’s social media?

    Two ways forward present themselves, though how they work out in each nation will depend in large measure upon the specifics of legal doctrine and upon the design details of the nation’s institutions. One possibility is for high courts to come up with what its members believe to be the best available specification of the fundamental rights at issue. They are, after all, lawyers trained to be sensitive to legal doctrine and charged with interpreting and applying fundamental rights in cases as they arise. And that’s what our current system of juristocracy is.

    The other possibility is for the high court to defer to the legislature or the executive, who, after all, can claim a democratic warrant for their specification of fundamental rights. Lawyers for the legislature can say, “Our legislators are actually sensitive to the rights-implications of the policies they adopt and the statute that’s before you reflects a reasonable legislative judgment about how important public policies can be pursued without violating fundamental rights.”

    No constitutional system is likely to come up with a stable choice between the two possibilities because each has its weaknesses, which mirror each other. High-court judges might not be sufficiently sensitive to the importance of the public policies in question, though they typically deploy some verbal formulations asserting that they do indeed take those policy questions seriously. 

    Legislators might not be sufficiently sensitive to the rights-implications of their proposals either, though they too typically deploy verbal formulations of their own asserting such sensitivity. Polemicists who admire much of what high courts have done in the years since 1945 say that legislatures too often reflect the passing whims or, even worse, the prejudices of badly informed majorities.

    The rise of right-wing populist leaders and semi- or truly authoritarian leaders has deepened a skepticism about legislative attention to issues of fundamental rights that political observers have long held – and properly so. They fear that legislatures today settle on the policies they want without paying attention to rights issues, then ask their lawyers to come up with post hoc legal arguments that there’s nothing wrong with those policies. Yet, the case for deferring to legislatures has always rested on the proposition that they do indeed pay attention to questions about fundamental rights.

    The core democratic principles that animate constitutional governments counsel in favor of judicial deference to legislative judgments about whether a specific statute conflicts with some fundamental right properly understood. But only if legislatures actually make such judgments. Critics of judges who decide constitutional controversies according to their own best lights should shift attention from the judges to legislatures and parliamentarians, or at least make the case, more clearly than they have so far, that today’s legislatures do a decent job of thinking seriously about the rights-implications of the policies they enact. 

  • The judiciary picks another fight with Trump

    The judiciary picks another fight with Trump

    The second coming of President Trump has brought an invigorated commander-in-chief asserting broad authority over the executive branch, reigniting debate over how much power the president has over his own subordinates, including US Attorneys.

    At present, the battle has focused on one US Attorney in particular. On March 24, 2025, the President named Alina Habba, his former personal attorney, the Interim US Attorney for the District of New Jersey. There’s a catch: Interim US Attorneys may serve only 120 days. On July 1, the President nominated Habba for Senate confirmation as New Jersey’s US Attorney; if confirmed, Habba could have served permanently at the pleasure of the President. Neither of her home state’s senators (both Democrats) supported Habba.

    In the meantime, the clock ran out on Habba’s interim appointment, and under an obscure law found at 28 U.S.C. 546(d), federal judges in New Jersey named her deputy, Desiree Grace, the Acting US Attorney. Acting US Attorneys, who are career prosecutors named for temporary promotions, expect to return to their line jobs at some point. Grace accepted the appointment. But Trump still wants Habba, so his Justice Department, as one would expect, took up the boss’s famous charge to “fight, fight, fight” back. Attorney General Pam Bondi fired Grace, rehired Habba as a deputy, and then promoted Habba to Acting US Attorney while the President’s team pulled her nomination paperwork.

    Skeptics on the left have questioned Habba’s qualifications for the job. Ultimately, if President Trump resubmits her nomination for confirmation, that will be a matter for the Senate to determine. In the meantime, at least one criminal defendant has challenged his indictment in court, claiming Habba lacks the authority to serve as Acting US Attorney.

    If all this sounds incredibly complex – it is, even for lawyers. The kerfuffle over who has the power to appoint US Attorneys, however, is a question of constitutional importance. The Habba scenario may play out across the country as President Trump’s interim US Attorney appointments, including those in Washington, DC, New York and California, are reviewed by the judiciary. This is important because US Attorneys are the chief law-enforcement officers for the districts in which they serve; Habba is essentially President Trump’s top cop when it comes to federal cases in New Jersey in which the US is a party.

    A US Attorney has tremendous authority vested by the Justice Department. She has the power to determine prosecution priorities; direct high-profile cases; manage relationships with other law-enforcement leaders; lead personnel by hiring, firing, and promoting staff; and serve as the public face of the office, including with the press and community. In turn, the Justice Department is a cabinet agency of the executive branch. The department will naturally pursue the priorities of the president, whether that be illegal-alien entry, human trafficking, or white-collar crime. That is, unless a rogue prosecutor turns rebel. So the president has a deep interest in who leads each of the 94 US Attorney Offices across the US and its territories. Promises made to voters about border control, protection from sexual predators, and safeguarding American markets from foreign bad actors, for example, must be promises kept.

    All of this brings us back to the question of who should appoint US Attorneys. Should top federal prosecutors be appointed by the president, acting through the Justice Department, which they serve, or should US Attorneys be named by federal judges, who belong to an entirely separate branch of government?

    As a matter of policy, the answer seems clear. The president must have control over the people executing policies under the authority of departments for which he holds responsibility. Every cabinet agency, including the Department of Justice, answers to the president and should execute his policymaking vision. President Trump and his team have identified a fight worth fighting, and they deserve to win.

    Federal judges have no more business appointing US Attorneys than they do US Marshals, Assistant Attorneys General, or any other members of the executive branch. There is no other comparable context in which the bench has the power to appoint anyone to a separate branch of government. Judges are umpires, not players.

    The law, however, is unsettled at this point. Until the recent New Jersey complaint, no litigant had challenged the ability of the president to appoint temporary US Attorneys. Unless Congress revisits the thicket of legislation that created this chaos, Alina Habba’s fate as US Attorney someday may be decided by the Supreme Court.