Two Courts

The best laid plans…well, you know how the rest of that goes. I had a completely different article already posted and ready to go for today and then the courts struck compelling me to write this screed. (Waste not, want not. I “recycled” the other article to later in the month.)

I’ll start in Texas. By now we all know about the case of the woman seeking a medically needed abortion in Texas. The case was been kicked up to the Texas Supreme Court at the behest of Republican Texas AG Ken Paxton. Keep in mind that this woman is pregnant and spending most of her time traveling to, traveling from and in emergency rooms. The Texas Supreme Court issued a stay on a lower court’s stay of Texas’ abortion law. The nine justices, (all Republicans and all initially the choice of either current Republican Governor Greg Abbott or immediate past Republican Governor Rick Perry – these two were preceded by Republican George W. Bush, see the downward trend?), sat on their hands. They weren’t pregnant and their lives weren’t being endangered.

Monday afternoon a spokesperson for the lady in question announced that she was heading out of state for the medical procedure that may well save her life and/or future fertility. Well into Monday evening the Texas Supreme Court overruled the lower court denying her the needed medical care.

Let’s examine that move for a bit. Normally judges fall over themselves trying to get out of making a decision, especially a controversial one. What do you think the issue of standing is really all about? The easy way out for the Texas Supreme Court was to say with the woman leaving the state the issue is moot and therefore they would make no ruling. But no. They wanted to prove they were in the bag and perhaps set a precedent for future rulings. Watch out for that last part!

In DC, Special Counsel Jack Smith asked the Supreme Court to rule on whether Donald Trump has the absolute immunity that he claims. Anyone who has been paying attention knows that the core of Trump’s legal strategy is to delay as long as possible. The absolute immunity claim is making its way through the lower courts. Thus far it has been unsuccessful and most observers think that trend will continue. Keep in mind Trump’s strategy isn’t about winning in court; it is about delaying trials. One of the next stops in this circus would normally be the DC Circuit Court of Appeals. The last time they heard a somewhat similar “Trump case” they took nearly a year to hand down a ruling. Again, in Trump’s book a delay is almost as good as a win. In fact, Trump is banking on winning reelection and then he will claim that a sitting president cannot be prosecuted. Remember that is not law. It is only an internal Justice Department procedure that was concocted during the Nixon administration as part of the Agnew plea deal.

This was a brave move on Smith’s part. It was his only real chance to stifle Trump’s delay game. Thus far it has paid off. The Court has agreed to hear the case and has told Trump’s legal team to present them with written argument by Wednesday December 20, 2023. By Supreme Court standards that is fast.

How successful it is, is yet to be seen.

As a point of law, I think the decision is crystal clear. Trump’s argument is malarkey! While it may not be written the founders specifically did not want a king and therefore no person is above the law. The original Constitution limited the president (who may warrant special considerations -that is an argument for another day) to a four year term before requiring reelection. In 1951 with the 22nd Amendment the Constitution limited a president to two, four year terms. There are no special accommodations for ex-presidents and it is clear that the intent of the document and the citizens is that no person has lifelong immunity.

The current Court has already proven to me that it cares little for law, the Constitution or America. Let’s look at the individuals. I think Samuel Alito and Clarence Thomas are in the bag for Trump (unless the money people command them otherwise) regardless of law, facts or possible future repercussions. The three liberal justices will hold against him. That leaves Chief Justice John Roberts and the “Trump Trio”.

Roberts, like most chief justices, will be concerned about how history views “his Court”. Therefore, I think there is a better than even chance that Roberts will side with the three liberals. If Trump is to get his five votes the “Trump Trio” of Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh all have to vote his way. I may be Pollyannaish, but I have a difficult time seeing that happen. I feel that one or more of the three will feel that with their lifetime appointments secure, they no longer need Trump. They may have the same one way street view of loyalty that Trump has.

The Texas Supreme Court is solidly in the bag for the forces of evil. We will find out what its “big league” counterpart does. Here is a fact to keep in mind: the Texas Republicans in robes have six year terms and are subject to reelection. Their counterparts in DC have lifetime appointments.

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