For a few weeks in early 2021, when Joe Biden was popular and commanded narrow majorities in the House and Senate, the Supreme Court’s Republican majority played its cards close to the vest.
These justices engage in cynical politics with a high degree of consciousness, and they’re shrewd operators. They knew Democrats were unlikely to muster the political will to expand the court or reform the judiciary, but they didn’t want to tempt fate. If they’d acted from the outset the way they went on to act later in Biden’s presidency, it might have forced Democrats’ hands.
So they bided their time. They waited until events confirmed their suspicion—that Democrats would not change the Senate’s filibuster rules under any circumstances—then resumed their nakedly partisan jurisprudence.
Now, Donald Trump is president with concurrent majorities, and partisanship runs the other direction. Their jurisprudence is accommodating. When it suited Joe Biden for them to move fast, they would move slowly, and vice versa. When Trump is a litigant, by contrast, they pace themselves to advance his interests. When he needed the all clear to run for president as an oath-breaking insurrectionist, the court moved fast. When he needed to run out the clock on his federal criminal indictments it moved slowly.
Thus, over the first months of his second term, the court has settled into a new rhythm: When Trump needs freedom from injunctions and restraining orders imposed by lower courts, the Republican justices race to his rescue, typically without explaining themselves. Then, they hit the brakes, giving him plenty of running room to engage in illegality before issuing decisions on the merits.
This is dirty pool, and the justices aren’t even really trying to conceal it. But I don’t think most Democratic critics of the court have thought through how this approach can be used to give Trump a one-time only pass to break laws and steal spoils that will never apply, under their eventual precedents, to future administrations.
Perhaps the Republican justices simply think there will never be another transfer of power. But their approach is consistent with another strategic objective, too: allowing Trump to engage in a spree of autocratic vandalism that broadly corrupts the federal government, before shutting down his claims to king-like power in a way that prevents Democrats from quickly fixing things in 2029.
Democrats should see this scenario taking shape and reject the double standard.
UNCIVIL SERVICE
Consider this contrast:...
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