Courting supreme chaos

Sydney Byron (left) and Andrew McDonald among dozens of outraged protesters greeting Justice Brett Kavanaugh at McLennan Community College on Sept. 11.

Several days before U.S. Supreme Court Justice Brett Kavanaugh's Sept. 11 visit to McLennan Community College in Waco, law professor Josh Blackman of the South Texas College of Law in Houston, senior editor of the forthcoming third edition of "The Heritage Guide to the Constitution,” proposed that Chief Justice John Roberts step down amid continuing chaos throughout the federal judiciary. He proposed President Trump then elevate Justice Kavanaugh to the post as “the only person who can steer the court through this current moment.”

I agree with Blackman’s rationale but only to a point. Under Chief Justice Roberts, 70, the high court has not only regularly (and imprudently, in my opinion) sided with President Trump over constitutionally grounded lower-court decisions slapping back federal overreach but has repeatedly done so through so-called “shadow-docket” rulings – emergency court rulings issued with little if any explanation that nonetheless shelve, at least temporarily, eminently reasonable rulings of lower courts. This has happened sufficiently that many federal judges are in revolt.

Example of the frustration: In a Sept. 3 ruling nixing President Trump’s attempt to strip $2.2 billion in research funds from Harvard, District Judge Allison Burroughs complained of expedited rulings from the high court. It is unhelpful, she wrote, for justices to criticize district courts when the latter “are working to find the right answer in a rapidly evolving doctrinal landscape where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”

Further examples: In an incredible series of interviews, 10 of 12 judges speaking anonymously to NBC News late this summer said Supreme Court majorities should better explain their terse emergency rulings when bucking lower-court rulings. Their decisions offer little guidance while validating the Trump administration’s scathing, unfounded criticisms of lower courts – criticisms that feed populist contempt for “activist judges” when they only apply the law. “It is inexcusable,” a judge fumed of high-court justices. “They don’t have our backs.”

More? In a blistering Sept. 12 ruling, District Judge William Alsup found the Trump Office of Personnel Management illegally directed agencies to fire some 25,000 probationary federal employees in February under false pretenses. Thanks to a July emergency ruling by the Supreme Court conferring broad powers on Trump in shrinking the federal workforce, the best Alsup could do was order the Trump administration to at least update federal personnel records to show that the dismissed employees were, whatever else, not fired for poor performance.

“[T]he Supreme Court has made clear enough by way of its emergency docket that it will overrule judicially granted relief respecting hirings and firings within the executive, not just in this case but in others," Alsup wrote. "And too much water has now passed under the bridge since the Supreme Court stayed this court’s preliminary injunction reinstating probationary employees. The terminated probationary employees have moved on with their lives and found new jobs. Many would no longer be willing or able to return to their posts."

In short, the damage is done.

This is serious. With exceptions tarnishing American justice – District Judge Matthew Kacsmaryk of Amarillo is one, District Judge Aileen Cannon of Fort Pierce, Florida, is another – federal district judges have every motivation to bow to legal precedent and fairly apply the law in contentious, unbelievably complicated cases: These judges understandably don’t want to see studied decisions reversed on appeal due to judicial error. Consequently, if I want to understand established constitutional law these days, I increasingly find greater value in lower-court rulings.

Sadly, the high court’s increased use of emergency decisions since 2017 is confounding matters for district judges, circuit judges and the public in the Age of Trump. Former University of Texas law professor Steve Vladeck, celebrated author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” argues these behind-the-scenes “shadow-docket” rulings bolster the dangerous conclusion these “justices are voting their policy preferences and they're not providing any rationale to counter that.”

Vladeck contends this disconnect between courts causes confusion regardless of who’s favored, though it’s clear high court justices favor the Trump administration even as it challenges basic constitutional tenets such as congressional powers as well as state’s rights – the latter once cherished by conservatives. And Trump administration 2.0 has filed numerous emergency applications to the Supreme Court challenging decisions by lower courts. Between April and July, the high court ruled in Trump’s favor 16 times, often with little to no legal justification.

“The Supreme Court is not a trial court; it is, by both constitutional design and historical tradition, a court the rulings of which have impacts far beyond the specific parties,” Vladeck wrote on June 26 in his blog. “Given that reality, the court ought to understand what can go wrong when it fails to provide even a modicum of explanation for its interventions. Second, and more fundamentally, principled explanations for the court’s decision-making are the primary thing that separates exercises of judicial power from exercises of raw political power.”

Vladeck, now a Georgetown University Law Center professor, and Blackman agree this ongoing chaos is provoked by the high court. But while Vladeck voices empathy for lower-court judges using precedent to check Trump’s excesses, Blackman credits “Trump Derangement Syndrome” for the frustration of lower courts. “Trump was elected president,” he said at a Sept. 4 Federalist Society chapter meeting at Southern Methodist University. “He’s allowed to do crazy stuff. He was put in office [by people] knowing he was going to do crazy stuff. That's why people voted for him – to shake things up.”

Blackman’s solution: Encourage ineffectual, judicially timid Roberts to retire and install in his place Kavanaugh, who (Blackman continues) has the right mix of qualities to manage this thundering Trumpian change.

“I think Kavanaugh can push the court to grant cert [to review cases] before judgment more often, hold oral argument and issue reasoned emergency docket opinions,” Blackman argues in his lively, well-sourced Sept. 5 essay. “No more one-paragraph John Roberts blue-plate specials. Roberts is so concerned about saying too much that he invariably says too little. And Justice Kavanaugh has the media savvy to speak intelligently to the American public and not hide behind pretentious press releases and cryptic comments at [legal] conferences.”

None of this arose during Kavanaugh’s appearance for McLennan Community College’s Ken Starr Lecture Series in Waco. Kavanaugh recounted how the Supreme Court alone could overturn or narrow legal precedent. He told how Americans declared independence from British rule because of its “concentration of power.” He reaffirmed faith in the constitutional “separation of powers” to the degree a veteran journalist sitting near me who has famously covered state and federal courts throughout his career rolled his eyes at the audacity of Justice Kavanaugh, of all people, making such a point.

The reality was just beyond Highlands Gym doors in the dozens of protesters with such signs as “SUPREME STOOGE” and “STAND UP FOR THE CONSTITUTION * CHECKS & BALANCES * LIBERTY AND JUSTICE FOR ALL” and the banner “BK – TRUMP FLUNKY,” all visible to those attending the lecture series event. “They’ve giving President Trump carte blanche to do anything he wants,” protester Andrew McDonald of Waco told me. “They’ve collectively become his stooge. They’re giving up on constitutional checks and balances. They’ve abdicated their duties.”

It was almost as if the gymnasium were as hermetically sealed as Supreme Court chambers. Kavanaugh spoke of how “an independent judiciary is critically important to preserving our individual freedoms and the separation of powers in our system.” He highlighted the court’s collegial air when written opinions convey something else amid continual capitulation to the Trump administration. He praised court colleagues profusely because “you know they’re patriots, you know they’re committed to the Constitution and you know they’re good people.”

Adding to the surrealism: The nation was reeling from the assassination of right-wing political activist Charlie Kirk a day earlier and President Trump had declared in response “we just have to beat the hell” out of “radical left lunatics.” Locals learned that not only had late Judge Ken Starr mentored Kavanaugh in his career but, as revealed in a Sept. 11 KWTX-TV interview with Starr’s widow, Starr as Baylor University president had endorsed Kirk’s decision to forsake college and pursue his vision for what became the formidable conservative youth organization Turning Point USA.

As reported by longtime KWTX-TV anchor and reporter Julie Hays in an interview with Alice Starr just after Kirk's death:

Ken always told all the students [at Baylor] to call him Ken or Uncle Ken, Alice said. When Kirk approached Ken Starr, according to Alice, he said, “Uncle Ken, I need your advice. I have a vision for starting an organization where students, high school students and college students, can get together and talk through issues and I just am not sure I want to go to college.” According to Alice, after hearing Kirk for half an hour, Ken Starr said, “Charlie, go pursue your passion and your dream. That is what you should do and not come to college." And I thought that was amazing advice,” Alice said. Kirk took Ken Starr’s advice to heart and got to work.

While that encounter was the first time the pair would meet, it was be the beginning of a close friendship. Starr served on Kirk’s advisory board at Turning Point USA, attended many events with him and was a guest at Kirk’s wedding. “We went to a lot of the functions at Mar-a-Lago that he held, and we went to his wedding,” Alice recalled. “He married the most beautiful, wonderful young lady that we had ever met, and they were so in love and now they have two beautiful children. So, yes, it’s a very sad day.”

Alice said Kirk was “brilliant,” “had vision” and that “he read so much he was as smart as anyone who went to college.” The widow of the late Ken Starr said it’s a sad day when someone is murdered for their opinions and says she knows her husband would have shared in the same heartbreak. “I was mortified,” Alice said. “I cried because Charlie was a friend.”

“Ken would be so sad.”

Two faces of American conservatism

Thus well-informed, discerning Wacoans that evening beheld in mind's eye two faces of contemporary conservatism, if indeed that, tied to Judge Starr, himself dead since 2022 but long a controversial face in American politics for what some labeled two-facedness: a 60-year-old Supreme Court justice offering a benign account of how the federal judiciary should function in furthering "democracy" notwithstanding his role in aiding and abetting what many feared was an anti-democratic demagogue and a 31-year-old political activist idolized in death as a martyred Christian patriot who in life gained popularity by saying provocative, sometimes contemptible things about blacks, immigrants, gun deaths, civil rights and people with whom he disagreed politically and religiously.

To his credit, Kavanaugh declared at MCC: “I think the No. 1 thing – I’m not going to use the word 'threat' – the No. 1 thing we all need to focus on, and you’re focused on it on a regular basis, is education and making sure our middle and high school and college students understand the importance of this and the importance of Congress and the importance of the presidency and the states and how our government operates and how our rights are protected and how we debate difficult issues in a civil way. I think civics education for students is really important.”

He cited specific educators under whom he and fellow student and Supreme Court Justice Neil Gorsuch benefited at Jesuit-run Georgetown Preparatory School in Washington, D.C., including longtime social studies teacher Steve Ochs. Justices Kavanaugh and Gorsuch invited their old instructor to Supreme Court chambers to not only talk about government and history but also “express our gratitude for inspiring us, for teaching us, and I appreciate all the teachers who teach our kids about government and democracy and all the principles and values that I think are necessary to sustain our country going forward.”

He credited another Georgetown Preparatory School teacher with inspiring him with lessons about American justice and the destructive influence of racism. “I’ve mentioned this a lot before but an English teacher I had named Chris Abell who taught me ‘To Kill a Mockingbird.’ I have the copy we used back then and on the inside cover he had given us a paper assignment from 'To Kill a Mockingbird' that says the lesson of 'To Kill a Mockingbird' was standing in someone else’s shoes, standing in someone else’s shoes, and that’s a reminder to me, I think, to be a good judge and to be a good person and to be a good citizen.

“We all have to stand in each other’s shoes to understand different perspectives,” Kavanaugh said.

By contrast, Charlie Kirk, a college dropout, famously debated college students far and wide on his contention that a costly college education was for many if not most a “scam” – astonishing given his friendship with Starr, who from my experience advocated fiercely for a college education, particularly during tenures as Pepperdine University School of Law dean and then Baylor University president, chancellor and law professor. As Kirk told a student of colleges generally during one of his entertaining “Prove Me Wrong” campus showdowns, half of the students assembled would “wind up getting a job that doesn’t require a college education.”

When the student suggested, in so many words, that college opened minds in ways that lead to more than a diploma and a job, Kirk snapped: "Depends on what you think college is and what it's become. Secondly, 41 percent of people that enter college don't graduate. Their dropout rate's insanely high. Third, I mean, what exactly is being taught here? It's a great question. I mean, are you learning about the beauty of Western Civilization and reading 'The Federalist Papers' of Madison and Hamilton and Jay? Do you get a postive view of America? Or do you spend time on post-modernism of Michelle Foucault and Jacques Derrida and Jean Stefancis and Derrick Bell?"

Which should have but didn't spur the student to counter that reading different viewpoints, considering different perspectives, leads to understanding about and insight into America and the world, offering to citizens the wisdom and discernment so vital in a democracy if nothing else (though Kirk at this point likely would have denied the United States is a democracy – a nit-picky, largely irrelevant exception obsessively stressed by the far right, including Kirk). How can one vigorously oppose, say, socialism or Marxism if one doesn't know what actually defines them, especially in a topsy-turvy age when the U.S. government becomes part-owner of US Steel and, by arrangement of President Trump, can make certain decisions for a private company – an arrangement that a year earlier Trump's far-right coalition would have vehemently condemned as unadulterated socialism? How can one understand why some leading philosophers of Western Civilization championed regulated monarchies over democratic republics, even as revolutionary fervor swept over the Old World?

To continue this thread, one can reasonably argue that Kirk and his like in the Age of Trump represent a sort of Make America Great Again post-modernism in their seeming resentment of diversity and inclusion and their questioning of civil rights leader Martin Luther King Jr.'s famous observation: "The arc of the moral universe is long, but it bends toward justice." Kirk and many fellow "conservatives" demonstrate a vivid apprehension of the nation's lurch toward the very equality for all that Jefferson so championed in the Declaration of Independence in 1776. In January 2024, during a Turning Point USA event, in a discussion targeting Title IX – a law prohibiting sexual discrimination on college campuses that led to Judge Starr's unwitting downfall at Baylor University in 2016 amidst a scourge of student sexual assaults – Kirk was moved to say of Rev. King: "Actually MLK was awful. OK? He's not a good person. He said one good thing he actually didn't believe."

That said, Kirk's greatest societal value may have been not in his making inane pronouncements before friendly Turning Point USA audiences or in a radio format that arguably invites inane pronouncements to fill air time but, rather, in forcing, or trying to force, "woke college kids" to think more analytically and intellectually and deliberatively on fundamental claims too often embraced without question and thought. At one point, during a Jubilee Media "Surrounded" event in which Kirk individually took on 20 "woke" students encircling him, he dismissed Great Society programs as failing blacks in America given statistics indicating increases in crime committed by blacks and the decline of fathers in black households. "The data shows they were actually better in the 1940s," he told a young African-American of blacks during Jim Crow times similar to those chronicled in Harper Lee's novel. "It was bad. It was evil. But what happened? Something changed. They committed less crimes." The student's response was that in Jim Crow times blacks were afraid, which didn't really get to the heart of the question. Kirk easily outmaneuvered the student on a topic of enormous complexity. At one point, he had to correct her claim that slavery in the United States began in 1816.

Nonetheless, Alice Starr's story about Judge Starr as then-president of Baylor University encouraging Kirk to forsake the enlightenment of a university education astonishes. She sets their encounter in 2010, the year Starr formally assumed the university's presidency. The judge's advice clashes with his rousing words during his Sept. 17, 2010, inauguration, specifically timed by university regents to coincide with Constitution Day in recognition of Starr's cherishing of that foundational document above almost all else. Consider an excerpt from Starr's inauguration speech:

To borrow from the elegant language of Baylor's founding generation, our Constitution was intended for "all ages to come." And so it has been. The story of America has been, in no small measure, the expansion of our constitutional republic from those original 13 states along the Atlantic seaboard.

From the very beginning, education was seen as indispensable to a constitutional republic blessed with a government – in Lincoln's immortal words at Gettysburg – "of the people, by the people and for the people." Both the Continental Congress in 1787 and the 1st United States Congress in 1789 enacted the Northwest Ordinance, which provided: "Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." In the spirit of the Northwest Ordinance, westward and southward Americans came, generation after generation, founding along the way schools, colleges and universities. This is the American story.

Courting tyranny

During his Waco visit, Kavanaugh provided a glimpse into President George W. Bush’s compassionate conservatism and optimism, now forsaken as weak and myopic in the raging Age of Trump. “President Bush used to say he lived on the sunrise side of the mountain, not the sunset side of the mountain,” Kavanaugh told the audience during the Starr Lecture Series event. “He had a painting in the Oval Office by Tom Tea, a painter from El Paso, West Texas, all eight years he was in the Oval Office, and he used to quote that all the time – be optimistic, see the day that is coming, not the day that is gone. And when I was confirmed to the Supreme Court, my former clerks got together and got me a replica of that painting. It’s above my desk.”

Lea's words refer to the Franklin Mountains, as defining a feature in the El Paso region as the Rio Grande and evidence that Bush, whatever else, was not quite the chuckleheaded president so many concluded of him. Certainly the magical region that so intrigued Lea as a novelist and painter offers daily evidence of how those of Hispanic, Anglo and Native American heritage can live and work together in harmony. Such convictions invigorated Bush's sustained interest in immigration reform as president and well afterward. Given Justice Kavanaugh's alarming Sept. 8 concurrence harmonizing President Trump's race-based raids and roundups of immigrants in the Los Angeles area with the Fourth Amendment guarantee against unreasonable searches and seizures, one wonders if the object of Bush's presidential faith – Kavanaugh owes him his nomination to the powerful U.S. Court of Appeals for the District of Columbia – has ever pondered the Bush Institute's recommendations for such reform: allowing so-called "Dreamers" blamelessly brought to the United States as children to apply for citizenship; upholding America's former tradition of welcoming refugees and asylum seekers; managing the border "through investment and innovation," making the most of technology; adapting immigration policy to meet the fast-changing needs of a 21st-century global economy; creating a more efficient temporary foreign-worker entry program; and creating a rigorous but fair process for undocumented immigrants "to get right with the law."

Kavanaugh also offered evidence of a deep respect he gained for the executive branch under Bush that he arguably lacked during his earlier time assisting independent counsel Ken Starr in investigating President Clinton and, as Starr's "chief wordsmith" (to quote Starr) compiling the sexually salacious report that led to Clinton's impeachment – a spectacle that unquestionably further coarsened political discourse in America. (Again, little of Kavanaugh's role in the Clinton investigation figured in his MCC talk beyond Alice Starr's fleetingly likening Kavanaugh's mistreatment during his 2018 Supreme Court confirmation hearings to how her husband was maligned during and after the Clinton investigation.) Given that Kavanaugh's appearance at MCC fell on the 24th anniversary of the 9/11 Islamic terrorist attacks on the World Trade Center in New York City and Pentagon beyond Washington, D.C., the justice paid homage to Bush's unceasing vigilance in the aftermath.

"I think back to President Bush and his leadership of the country," Kavanaugh said. "On Sept. 12, 2001, he came into the Oval Office and said, 'This will not happen again. This will not happen again in the United States of America. We are not going to allow this to happen again.' And the country, of course, moved on, as it should, in trying to get somewhat back to normal over time. But I always say of President Bush, every day for the next seven-plus years was September 12th, 2001. He had to defend America. He woke up in the morning thinking how he was going to protect all of us. He went to bed at night hoping he wasn’t awakened in the middle of the night by news of an attack. That’s an enormous burden to carry for one person. He knew if there were another attack, [people] would say, 'Bush, why didn’t you do more? Why didn’t you do this? Why didn’t you do that?' And the way he led the country through that time, I think, we need to appreciate."

The experience was arguably transformative. Kavanaugh today appeals to some Americans supporting Trump’s revolutionary transformation of government – including, arguably, marginalization of Congress given its increasing devotion to political theater and the manipulation of election protocols to ensure unfettered incumbency – because of Kavanaugh’s support of the “unitary executive theory.” As seen by some, it holds the president should have far more authority to control not only the actions of the 4 million people who figure (or figured) in the executive branch but whether they keep their jobs.

This is where matters get dangerous for any self-respecting republic – when populist kooks welcome and embrace not just any dictator but their dictator. Some espousing the unitary executive theory subscribe to an all-powerful president either carrying Vice President Dick Cheney’s once-imagined “monarchical notions of prerogative” to override statute and treaty in times of national emergency or simply indulging President Trump’s boast that he has “the right to do anything I want,” which Trump consequently pursues by declaring national emergencies right and left when such emergencies plainly do not exist. One example hiking kitchen-table anxieties: Trump's declaring expanded powers under the International Emergency Economic Powers Act to impose massive tariffs on American importers of goods from almost every country in the world on a supposedly permanent yet ever-shifting basis and in ways far exceeding the tariff schedules enacted by Congress. These are not only causing inflationary concerns for everyday consumers, many of whom elected Trump in 2024 on his promise to promptly bring down the prices of consumer goods, but also driving longtime trading partners into more reliably consistent trade arrangements with other powers, some of them our global adversaries.

For the record, I largely agree with Kavanaugh’s restrained, closely reasoned 2009 essay on the unitary executive theory in Minnesota Law Review, written after illuminating years as assistant legal counsel, staff secretary and speechwriter to President George W. Bush left him firmly convinced “the job of president is far more difficult than any other civilian position in government” and “makes being a member of Congress or the judiciary look rather easy by comparison.” He argued that “the pressure is relentless, the problems arise from all directions, the criticism is unremitting and personal.” However, his essay – written after a challenging presidency overseeing the aftermath of a colossal terrorist attack, two faraway wars, a pair of crippling natural disasters and a devastating financial crisis, polished in the full knowledge that Barack Obama had been decisively elected president – doesn’t imagine Donald Trump, who openly toys with the idea of dictatorship; roils global markets with wildly irrational and inflationary tariffs; sends armed military to occupy U.S. cities out of retribution and spite; contests Article I powers of the purse reserved to Congress; rigs elections for self-benefit; presses his Department of Justice to pursue and prosecute his enemies; and unleashes masked federal agents to detain and incarcerate people with little regard for due process rights.

Kavanaugh proposes civil suits and criminal prosecutions of presidents be deferred so long as they serve; advises Senate promptness in approving or disapproving appointments (and faults senators for not agreeing to strict ground rules of protocol ahead of judicial nominations); allows a level of presidential control over even traditionally independent executive agencies and personnel (with key exceptions such as the Federal Reserve Board), given the “extraordinary duplication overlap” involved; and suggests clearer lines for when presidents can commit to military engagement without input from Congress. Most interestingly, Kavanaugh resurrects the idea of limiting presidencies to single six-year terms on the grounds most second terms reflect little of the constructive vigor of first terms and reelection “distracts from the business of running the country” and “makes it harder for presidents to tackle different but necessary issues in their first terms.” Reelection also lends to the perception that decision-making is undertaken “with an eye toward the Electoral College.” Eight years, he says, is too long for a president and his or her team “to stay in top form.”

Most of this strikes me as logical, even constitutional (well, with constitutional amending here and there and some concurrence by Congress). The challenge for Justice Kavanaugh and the rest of the high court 16 years later is maintaining their credibility by not getting swept up in extralegal inclinations of a pretentious presidency operating well beyond the bounds of, say, the two Bush administrations or the Obama administration, condoning excesses that might make a mockery of not only the unitary executive theory but any notion Kavanaugh rates elevation to a vacancy created by the chief justice’s imagined departure.

The Supreme Court majority's unexplained Sept. 22 decision to allow President Trump to fire Rebecca Slaughter, last remaining Democratic member of the Federal Trade Commission, springs directly from Kavanaugh's 2009 essay, notwithstanding Congress' stated intention that the FTC and other independent agencies showcase a degree of bipartisanship and independence arguably insulated from partisanship. Congress allowed a president to fire members of such agencies "for cause" but not policy or partisan differences, an action upheld by a unanimous Supreme Court in 1935 against the wishes of President Franklin D. Roosevelt. While the Sept. 22 decision is temporary till the high court can hear arguments in December and more deliberatively address the dispute, one logically imagines any temporary decision would ordinarily bow to long-established tradition, congressional intent and legal precedent set by the high court itself. Yet this court offers no reason whatsoever for siding with Trump, in the process again antagonizing lower courts bowing to, yes, long-established tradition, congressional intent and legal precedent set by the high court. Vladeck fears this shadow-docket ruling "may only encourage lower-court judges to do exactly what Justices Gorsuch and Kavanaugh purported to rail against in August: not follow precedents." Thus the Supreme Court invites Americans to further speculate about its motives. Some of us have already guessed.

In highlighting the court majority's willingness to undermine congressional intent in forging law, Justice Elena Kagan, writing for the dissenting three-member minority, condemned the decision to bow to Trump rather than legal precedent. "Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the president, and thus to reshape the nation's separation of powers."

This and other recent Supreme Court decisions might be more palatable if they didn't so obviously serve an iconoclastic, rafter-rattling chief executive who sees his presidential election victories – including one he actually lost and another he won while losing the popular vote – as placing him above dusty but clear-cut constitutional constraints and legal precedent. For instance, notwithstanding Kavanaugh's claim in Waco that the judiciary's independent role is "not only in protecting liberty but also in ensuring a thriving economy," the court's siding with Trump days later (with Kavanaugh's support) in snuffing out the independence of the Federal Trade Commission heightens the likelhood of further economic instability due to Trump's tariffs on imported goods that his gullible supporters believe are being paid by foreign countries and not them. And how will the high court react when a Democrat comes into the presidency, acts on these expanded powers and terminates all those appointed by Trump? Will this court somehow narrow its precedent if not overturn it? Such are the expectations of more and more American cynics scrutinizing a court whose justices, during their confirmation hearings, clearly stretched the truth in reaffirming steadfast belief in the viability of legal precedent.

Granted, I draw instincts about law from my many years in rugged West Texas – specifically the town of Abilene where Justice Kavanaugh’s wife Ashley was born and raised, where I knew folks who hailed from the town's law-abiding, God-fearing 19th-century frontier roots, where generations admired plain jurists who showed a sense of fair play and decency not always evident in our tumultuous times of late. I gained from the writings of Lincoln, Washington, Jefferson, Paine and particularly John Adams with his fear of the very sort of entitled, elitist, showy, narcissistic oligarch who now dominates American life. During my subsequent years in “Bush Country” at the Waco Tribune-Herald overseeing coverage of the nearby Western White House back when Brett Kavanaugh served as a loyal and observant Bush staffer often stationed there, I was prompted to read Alexis de Tocqueville’s classic “Democracy in America” (1835) by President Bush’s own unexpected interest in this definitive look at America during one of its most transformative periods. Included in its observations of societal, religious and economic vigor was the author’s scrutiny of Americans’ reverence for the rule of law.

Tocqueville’s interest was understandable. Besides being a lawyer, his pretense for touring America in the Age of Jackson was gauging U.S. penitentiaries for the French government; he was actually more fascinated by the United States' enlightened system of governance, its emphasis on popular sovereignty and how its revered judiciary decided validity of laws based on their constitutionality. The so-called "American Experiment" had clearly failed in France, given the bloodbath that resulted in the French Revolution despite democratic idealism that outstripped what even Americans envisioned. In the course of his travels and encounters with friend Gustave de Beaumont, Tocqueville interviewed various Americans of accomplishment, including former Secretary of the Treasury Albert Gallatin who, but for foreign birth, might himself have reached the pinnacle of the presidency. Drawn to America by its revolutionary fever, Swiss-born Gallatin proved one of the great all-American skeptics about investing too much power in the executive and judicial branches of government, though he appeared to accept their merits by the time he met Tocqueville and after years of devoted service to Presidents Jefferson, Madison and Monroe.“Our bench is extremely respected,” the elder American statesman and diplomat told the visiting 25-year-old French aristocrat in June 1831. “Sustained only by public opinion, it has to make continual efforts to retain it. Its integrity is beyond question. I regard the bench, upheld as it is on every occasion by the body of lawyers, as the regulator of the irregular movements of our democracy and the part that maintains the balances of the whole machine. Notice that, being able to refuse to apply an unconstitutional law, it is in a sense a political body.”

Justice Kavanaugh and the rest of the high court would do well to remember Gallatin’s observations as they empower the American presidency beyond its prescribed limits by repeatedly abusing their own powers in reimagining and reinterpreting the U.S. Constitution.

I also recall friendly but vigorous discussions about the Constitution, the law and the federal judiciary with former Judge Starr, for whom Kavanaugh once worked and from whom I too learned much during Starr's final years. Our informal debates in Waco ensued over not only the constitutional infidelity and ethical lapses of the Supreme Court (my view, not his) but destructive public perceptions. Our spirited dialogue was such that the ever-personable former U.S. appeals court judge, once considered a likely prospect for the Supreme Court, obligingly wrote a Waco Tribune-Herald column in 2017 on possible solutions addressing public frustration with the highest court. In his piece, Starr trotted out a familiar proposal – 18-year term limits for Supreme Court justices, a reform he acknowledged could only be accomplished through a constitutional amendment. Typical of his demeanor, he ended by suggesting that “perhaps it's high time to stop all the yelling and embrace the prophetic call to come and reason together.” Yet is this likely with a defiant, intolerant, proudly unenlightened, loud-mouthed president who views the high court’s meticulously nuanced 2024 Trump v. United States ruling as giving him presidential immunity for everything he does?

Many times over the past several months I've wished I could press Starr for any misgivings about his defending President Trump during the latter's first impeachment trial – and not just because of the utter incongruity of Starr's claiming on the Senate floor on Jan. 27, 2020, that "the Senate is being called to sit as the high court of impeachment all too frequently" when he and then-assistant Brett Kavanaugh had contributed greatly to the 1999 impeachment trial of President Clinton that so widened the political and cultural chasm separating Americans. I also want to understand better his reasoning because, in helping President Trump survive in 2000, he unwittingly paved the way for the violence of January 6, 2021, and the emerging constitutional crisis in 2025. Sadly, Judge Starr has gone to his final reward. He was buried in the Texas State Cemetery in Austin, his headstone marked with images of U.S. and Texas flags, his accomplishments and the familiar verse from 2 Timothy 4:7. For those with an idyllic view of the afterlife, he is presumably now reunited with Charlie Kirk.

Courting chaos

In a Sept. 4 interview before a friendly audience in New York City while touting her book, “Listening to the Law: Reflections on the Court and Constitution,” Justice Amy Coney Barrett – like Kavanaugh, a Trump appointee – argued without evidence that the United States is not undergoing a constitutional crisis. "I don't know what a constitutional crisis would look like,” she acknowledged. “I don't think that we are currently in a constitutional crisis, however. I think our country remains committed to the rule of law. I think we have functioning courts."

Her observation invites speculation: Would Barrett and her robed colleagues recognize a constitutional crisis if it ensued? Does the president’s de facto military occupation of U.S. cities as a show of force to hesitant or unwilling citizens qualify? How about employment of racial profiling and scuttling of due process rights in ICE raids and detentions that have occasionally left U.S. citizens and legal immigrants detained or incarcerated? What of the president's harnessing of the Department of Justice to pursue his personal and political enemies? Or would only severed heads on pikes amid the storming of government buildings qualify? Given the depths to which this nation has plunged in recent years – particularly in recent months – it’s no longer too crazy to imagine far worse. Do these high-court justices realize, in regularly overturning legal precedent and undermining earnest, lower-court judges; in applying tedious, often suspect judicial tests; in rendering the U.S. Constitution increasingly unrecognizable to informed, everyday citizens that, from their lofty perches, they not only render the law of the land more irrelevant in American life and rob it of respect but also stamp themselves as corrupt ideologues, even pretentious partisan hacks, and not conscientious, upstanding arbiters of the law?

Consider, again, the most dangerous Supreme Court ruling in a century: Trump v. United States, in which Chief Justice Roberts, writing with obfuscating nuance, trashes the foundational idea that no man in the United States is above the law by holding that the president of the United States has criminal immunity for actions pursued in his duties as president. For a president who may deem putting on his pants in the morning a presidential duty, this ruling invites corruption and tyranny, given the ability of staff lawyers to justify any malfeasance as presidential. Worse, the Supreme Court of the United States clearly slow-walked its deliberations in Trump v. United States, in effect running out the clock on federal charges that Trump obstructed the counting of electoral votes in Congress on Jan. 6, 2021, and that his efforts to strong-arm state officials into manipulating vote tallies and dispatching fraudulent electors on his behalf reflected his role as a political candidate, not president. Trump’s election to the presidency in 2024 nixed all of this because of a Department of Justice policy that precludes prosecuting presidents of the United States during their tenures.

Thus, the high court now all too often bows to Trump’s rapid transformation of American life and law through “shadow-docket” renderings that upend well-sourced, well-reasoned lower-court rulings and raise doubts about Justice Barrett's claim of "functioning courts" amid evidence of a federal judiciary in turmoil. University of Pennsylvania law professor Kate Shaw, in a Sept. 2 New York Times interview with journalist Ezra Klein, marveled at how the high court, “often in the dead of night, often without any reasoning or written opinion at all, disposes of these [Trump administration] requests for emergency relief [from lower courts], and that’s this string of victories that Trump has had, ruling after ruling in favor of Trump.” Nor, she suggests, would the high court have permitted certain other presidents such Article II liberties. "Imagine Barack Obama deciding to just abolish by executive order the Commerce Department," she told Klein. "Or Joe Biden saying: 'We’re going to get rid of ICE.' The idea that he would just – and that the court would allow it – is kind of preposterous. I don’t think there’s any way that the Supreme Court would have allowed a different president to proceed as this president is proceeding."

Lower-court federal judges aren't the only ones in rebellion. Federal grand juries in militarily occupied Washington, D.C., have repeatedly demonstrated dismay about federal overreach by refusing to indict individuals who have been arrested for absurdly minor crimes but are charged by the Trump administration with felonies carrying lengthy jail sentences. In doing so, jurors employ the significant power conferred on them by the Constitution and convey a direct message to the president of the United States about the outrage of putting more than 2,000 armed National Guard personnel on city streets in peacetime. Notwithstanding the old maxim that compliant grand juries under prosecutorial sway will "indict a ham sandwich," grand jurors in D.C. most notably declined to indict a 37-year-old Air Force veteran and (incredibly) Trump Department of Justice employee who on Aug. 10 confronted several uniformed federal agents on a D.C. city street, screamed "F--- you! You f---ing fascists! Why are you here? I don't want you in my city!" and threw a Subway sandwich at one agent, striking him in the chest. Jurors obviously sympathized with protesters subsequently rallying to Sean Dunn's side in the legal matter, including one who held up a sign: "One Small Sub for Man…One Giant Gesture for Democracy.”

What makes the present moment more stunning are the Supreme Court cases that Justice Kavanaugh cited in Waco as most influential on him: Marbury v. Madison (1803), which famously established the enduring concept of judicial review; Brown v. Board of Education (1954), which struck down state laws establishing the racial segregation of public schools; Youngstown Sheet & Tube v. Sawyer (1952), which restrained a president who exceeded his constitutionally delegated powers; and United States v. Nixon (1974), which compelled a corrupt president to deliver subpoenaed materials concerning the Watergate scandal to a federal court. Of these, Kavanaugh cited Brown v. Board of Education as "the greatest decision in Supreme Court history, in this country’s history, because of what it did to bring the promise of the Fourteenth Amendment, equal protection, closer to reality." Overruling the separate-but-equal principle set by the high court in the 1896 Plessy v. Ferguson case, Brown v. Board of Education "declared the principle of racial equality," Kavanaugh told Wacoans. "And, of course, we’re trying to always live up to that, but the court, courageously and unanimously, came together in that case to issue the ruling, a great moment."

Kavanaugh is to be commended for citing these critically relevant cases – I whispered to a colleague at MCC what an excellent quartet they indeed are – but one is then left to ponder why Kavanaugh has subsequently participated in so many critical decisions, on an emergency basis or fully deliberative one, that bow to a figure clearly contemptuous of constitutional guardrails. Amazingly, Kavanaugh noted of his favorite four rulings: "Those cases touch on different themes and principles that the courts applied over time that, as I sit in my chair, I think about what they teach me in doing my job today."

Maybe, maybe not. If Justice Kavanaugh ponders the legacy of these cases during oral arguments and deliberations, he's certainly not building upon them, let alone defending the inherent all-American values derived from them. During his Q&A with longtime MCC history professor Ashley Cruseturner, Kavanaugh repeatedly cited First Amendment protections of free speech as critical. But will he offer proof of this when the time inevitably comes? President Trump daily sets out markers betraying his obsession with retribution and intimidation threatening many freedoms listed in the First Amendment. Clearly referring to news stories about his administration and himself amid growing public concern over free speech, Trump declared in the Oval Office on Sept. 19: "When 97 percent of the [news and opinion] stories are bad about a person, that's no longer free speech." Then again, if 97 percent of news and opinion are in concurrence – unlikely in today's polarized America – it might well be a warning consensus of public opinion that Trump should heed.

Before captive reporters assembled in the newly ornate, golden-hued Oval Office on Sept. 19, Trump outlined plans to dispatch armed military to cities beyond Washington, D.C., and Los Angeles, notwithstanding objections in some cases by citizens and their elected representatives. In explaining his expansion of this effort, Trump resorted to the controversial rhetoric he employed as a candidate in 2015 to describe illegal immigrants from Mexico but in this case applied more broadly in a nation by now accustomed to such braggadocio and demagogy: “It's sort of like war. I mean, I hate to tell you, it's like war. Some of these people are really bad, they're really, really sick people, they're dangerous people, they're killers, they're murderers, drug dealers, and we can't have it." All this bullying of U.S. citizens whom Trump arguably regards as subjects continues even as he dodges and evades any situation that might force him into a showdown with despots and dictators threatening U.S. interests and allies in conflicts that could spiral into another all-consuming world war. Certainly any president craving the Nobel Peace Prize, as Trump does, is unlikely to get one while waging war against his own people. Only two weeks after Kavanaugh's somewhat scripted, everything's-OK appearance in Waco – some of it drawn from his testimony during 2018 Senate Judiciary Committee confirmation hearings – Trump  dispatched troops to Portland to help protect U.S. Immigration and Customs Enforcement facilities. The president authorized the troops to exercise "full force if necessary" in their mission.  

Justice Kavanaugh's regard for Brown v. Board of Education as bolstering the meaning of the almighty, multi-pronged Fourteenth Amendment and his interpretation of "To Kill a Mockingbird" as inviting the reader to weigh the perspectives of others (drawn from an observation in the 1960 novel by morally upright attorney Atticus Finch) clearly clashes with his Sept. 8 concurrence endorsing the Supreme Court majority's stay of a lower court's temporary restraining order prohibiting federal agencies from continuing unlawful actions marked by racial profiling in Los Angeles and surrounding counties. One wonders: Does Kavanaugh place himself in the shoes of Atticus Finch or Tom Robinson? Neither seems obvious from his concurrence, bowing to an administrative state overstepping its Article II bounds in a combustible way that dismisses any sense of decency and fair play, let alone justice. From my experience, most lawyers inspired by the Harper Lee novel identify with Finch who, after waging the good fight in court on behalf of a black client accused of rape in Maycomb, Alabama, during Jim Crow days, accepts defeat stoically and returns home to his children. Tom Robinson soon dies a violent death.

Nor is history likely to look favorably on Kavanaugh's joining the high court majority in confounding a multitude of lower courts that correctly issued injunctions prohibiting execution of President Trump's clearly unconstitutional executive order stripping birthright citizenship from children whose mothers were undocumented or on temporary visas while in America and whose fathers were not citizens or lawful permanent residents. "It's a good one," Trump said in signing the order nixing the first section of the Fourteenth Amendment to the Constitution. "Birthright – that's a big one." It's bad enough the second Trump administration lacks attorneys of integrity, courage and legal scruples who would gently but firmly remind a president that he cannot simply undo a constitutional amendment with an executive order. Yet in its June 27 emergency ruling, the court adds to the bewilderment, forsaking an opportunity to scold the president and remind him of his Article II limits and the prescribed course for amending the Constitution.

Instead the high court takes this telling moment to conclude that lowly district courts can no longer issue nationwide injunctions, even though these particular district rulings were properly reaffirmed in the appeals process before hitting a roadblock at the Supreme Court of the United States. Ultimately that's a whole lot of reputable judges who recognize an unconstitutional undertaking when they see one. To quote one appeals court, the Trump administration's "proposed interpretation of the Citizenship Clause relies on a network of inferences that are unmoored from the accepted legal principles of 1868," when the Fourteenth Amendment became the law of the land. In the seminal 1898 ruling U.S. v. Wong Kim Ark, involving the case of an American-born man of Chinese ancestry denied re-entry into the United States after traveling abroad, the Supreme Court dutifully "canvassed English common law, early American decisions and citizenship’s meaning to the Fourteenth Amendment’s drafters and then held that the Citizenship Clause stands for 'the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of the parents.'" And while the Supreme Court of 2025 may be legally right in arguing, as Justice Kavanaugh does, that "district courts can no longer award preliminary nationwide or class-wide relief except when such relief is legally authorized," any citizen with a fundamental grasp of the Constitution can't help wondering if the high court seized upon this precise and pivotal moment to coddle and pacify this particular president, shelving any deliberative decision on birthright citizenship till later, even though the truth of the matter is abundantly clear: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Justice Kavanaugh here does seem to exemplify Professor Blackman's argument that he can articulate things more plainly than some fellow jurists – certainly the chief justice. "When a stay or injunction application arrives here, this court should not and cannot hide in the tall grass," he writes, reminding fellow Supreme Court jurists of their duty to resolve crises promptly, even if only for the short term till the high court can more deeply consider and settle the dispute. "When we receive such an application, we must grant or deny. And when we do – that is, when this court makes a decision on the interim legal status of a major new federal statute or executive action – that decision will often constitute a form of precedent (de jure or de facto) that provides guidance throughout the United States during the years-long interim period until a final decision on the merits." Yet Kavanaugh's opinion sits uneasily alongside the insight of a New York Times reader from Palm Springs who, reading of the high court's emergency ruling in the case, commented: "Every single day more and more Americans lose faith in America. Billionaires laugh with glee. And then it all collapses. And everyone asks, 'How did this happen?' It happened because good people, regular people, observed that laws don’t matter. Society doesn’t matter. Only power matters. And so we die."

One wonders: How would Mr. Ochs, the Georgetown Preparatory School social studies teacher, grade Kavanaugh on his role in all this? How would Mr. Abell interpret Kavanaugh's ability to place himself in the shoes of others, including brown-skinned people such as Pedro Vasquez Perdomo, one of the Los Angles plaintiffs whose July 2 lawsuit pressing to end unlawful stops and arrests passed muster all the way up the judicial line till running aground at the Supreme Court? What would Atticus Finch say? The answer may well lie in Vasquez Perdomo's reaction to the high court's pause on what lower courts had decided: “When ICE grabbed me, they never showed a warrant or explained why. I was treated like I didn’t matter – locked up, cold, hungry and without a lawyer. Now, the Supreme Court says that’s OK? That’s not justice. That’s racism with a badge." The answer may also lie in Justice Ketanji Brown Jackson's angry dissent, reflecting the perspective of someone of the same race as Tom Robinson: "A Martian arriving here from another planet would see these circumstances and surely wonder: 'What good is the Constitution, then?' What, really, is this system for protecting people’s rights if it amounts to this – placing the onus on the victims to invoke the law’s protection and rendering the very institution that has the singular function of ensuring compliance with the Constitution powerless to prevent the government from violating it? 'Those things Americans call constitutional rights seem hardly worth the paper they are written on!' These observations are indictments, especially for a nation that prides itself on being fair and free. But, after today, that is where we are."

And one can only imagine what Ochs, Abell and Finch might say of Charlie Kirk, the other face of American conservatism looming large over the audience in Waco the evening of Sept. 11. For all of his claimed virtues in public engagement and civil discourse, Kirk way too often resorted to rhetoric delivered through the dark prism of the towering political figure of our age who put old-fashioned American conservatism to flight. Consider Kirk's July 24, 2023, edition of his radio show. "I'll tell you what," he said of Vice President Kamala Harris after becoming confused on the air about the nationality and ethnicity of her parents. "She would be a lot easier to beat [in an election] than Joe Biden, a lot. I mean, Joe Biden is a bumbling, dementia-filled, Alzheimer's, corrupt tyrant who should, honestly, be put in prison and/or given the death penalty for his crimes against America. But Kamala Harris? My goodness."

Kirk's endorsement of prison and possibly the death penalty for a then-sitting American president invites the question of President Biden's supposed crimes, especially alongside President Trump's obvious ones. Incidentally, of the imagined campaign by Harris a year before she indeed stepped forward as the Democratic presidential nominee, Kirk opined: "It's like black Hillary on steroids. Is she black? She says she's Caribbean or whatever." Of Supreme Court Justice Jackson – Kavanaugh's colleague – Kirk on the July 13, 2023, edition of his radio show pronounced her and three other black women of accomplishment (including former first lady Michelle Obama) "affirmative-action picks" and added pointedly: "Yeah, we know. You do not have the brain-processing power to otherwise be taken really seriously. You had to go steal a white person's slot to go be taken somewhat seriously." This line of thinking should erode any effort to confer sainthood on Kirk, no matter how charming he might be in his contrarian approach. Consider his condemnation of societal, political and business efforts to ensure diversity, equity and inclusion in the American workplace during a panel discussion on the Jan. 18, 2024, edition of "The Charlie Kirk Show." During it, he said of the affirmative-action mindset: "If I see a black pilot, I'm gonna be like, 'Boy, I hope he's qualified.'" Kirk later explained he meant only that "DEI invites unwholesome thinking" and that, of course, black individuals could indeed be qualified pilots. But his contention invites simple counterpoint: If employers are encouraged to retain old racial biases favoring whites for employment, as was certainly the case for decades in America, isn't there also a danger that an unqualified white pilot might be flying the plane rather a qualified black or brown pilot whose wings are clipped because of race?

One wonders, too, how justices of times past would view Kavanaugh and his right-wing bench colleagues. Consider the potential reaction of Justice Hugo Black, a former Ku Klux Klan member who evolved into a staunch defender of the First and Fourteenth Amendments and wrote for the majority in Justice Kavanaugh's cherished Youngstown Sheet & Tube Co. v. Sawyer ruling nixing President Truman's order seizing steel mills to ensure continued production of steel during the Korean War. How would Black view the current court's investment of more and more power in someone whose second presidency is colored by claims on powers denied wiser, more selfless, far more disciplined predecessors. "The president’s order does not direct that a congressional policy be executed in a manner prescribed by Congress – it directs that a presidential policy be executed in a manner prescribed by the president," Justice Black wrote disapprovingly of Truman in Youngstown Sheet & Tube Co. v. Sawyer. "The preamble of the order itself, like that of many statutes, sets out reasons why the president believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this law-making power of Congress to presidential or military supervision or control."

Clearly Kavanaugh understood the example, for instance, of Texas-born Justice Tom C. Clark in particular in the Youngstown Sheet decision in which the Supreme Court ruled against the president's seizing of the steel mills, pursued by Truman to prevent a shutdown amidst a looming United Steel Workers of America strike. As Kavanaugh told Senate Judiciary Committee Chairman Chuck Grassley during his confirmation hearings in 2018: "Now this is a time of war, a time of war where lots of Americans were killed, and the Supreme Court is under pressure to defer to the president’s war effort in a 6-to-3 decision. But what is interesting to me, Justice Clark – we do not usually talk about Justice Clark in that decision. Why is he important? He is important. He was appointed by President Truman to the Supreme Court. What a moment of judicial independence there to rule in that case." Yet, as a justice, Kavanaugh falls well short of the gutsy standard that Clark showed, at least in the eyes of legal experts, historians and the public.

American show trials 

The danger for the Roberts Supreme Court in appearing complicit in Trump's destructive and vengeful ways is not just the tarnishing of individual reputations but also dismissal of the entire federal judiciary as a constitutional bulwark when the Republican-dominated Congress is supine, many of its members jockeying daily to perform for Make America Great Again approval rather than upholding the powerful checks of the Article I branch. Consider the president's decision to press for the resignation of acting U.S. Attorney (and former police officer) Erik Siebert because Siebert, after five months of investigation, could find no grounds for leveling mortgage fraud charges against New York Attorney General Letitia James in a way that wouldn't get the Department of Justice laughed out of court during trial. Trump's quest for retribution targeting Attorney General James for overseeing his 2024 conviction for "numerous acts of fraud and misrepresentation" of assets to win favorable loan terms made clear to many Americans that Trump viewed the Department of Justice as his personal law firm, useful in getting even with his enemies. These included former FBI director James Comey, presumably for fueling the Mueller investigation of Russian conspiracies that arguably helped Trump's 2016 presidential election, and Democratic Sen. Adam Schiff, who rated payback for not only managing (as a House member) Trump's 2020 impeachment but serving on the Select Committee to Investigate the January 6 Attack on the United States Capitol that brought to light Trump's scheming to steal the 2020 presidential election. Of course, the Supreme Court helped Trump skirt legal accountability for the latter transgressions.

Consider what possibly was a private message intended for Attorney General Pam Bondi that Trump posted on social media the evening of Sept. 20 before arguably realizing his mistake. It targets U.S. Attorney Siebert as a Democratic plant even though Trump nominated him for the post on the recommendation of Virginia Republican Gov. Glenn Youngkin, another Trump loyalist – further indication of Trump's unwillingness to shoulder blame in his carnivalesque presidential undertakings: "Pam: I have reviewed over 30 statements and posts saying that, essentially, 'same old story as last time, all talk, no action. Nothing is being done.' What about Comey, Adam 'Shifty' Schiff, Leticia??? 'They’re all guilty as hell, but nothing is going to be done.' Then we almost put in a Democrat-supported U.S. Attorney [Siebert] in Virginia with a really bad Republican past. A Woke RINO who was never going to do his job. That’s why two of the worst Dem Senators [Virginia Sens. Mark Warner and Tim Kaine] PUSHED him so hard. He even lied to the media and said he quit, and that we had no case. No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so. Lindsey Halligan is a really good lawyer and likes you, a lot. We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice and indicted me (5 times!) OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!! President DJT."

This seems strong evidence of President Trump's intent to scrap the Department of Justice's longtime independence from White House politics (and shenanigans) and instead do what Trump long accused the Biden administration of doing – weaponizing the DOJ to go after enemies, a criticism that doesn't hold up well against Biden, whatever his other presidential sins might have been. While the Department of Justice during the Biden administration prosecuted those who stormed the U.S. Capitol and let a special prosecutor pursue what many deem Trump's high crimes, it also prosecuted Texas Democratic Congressman Henry Cueller and New Jersey Democratic Sen. Bob Menendez on separate bribery charges and during a period on Capitol Hill when President Biden needed every Democratic vote possible. Under his Department of Justice, Biden's own wayward son Hunter was investigated and convicted. By contrast, when a reporter on Sept. 22 asked White House spokeswoman Karoline Leavitt if President Trump was abandoning his promise not to weaponize the Justice Department to pursue his enemies, Leavitt offered this revealing comment: "No. In fact, the president is fulfilling his promise to restore a Department of Justice that demands accountability. And it is not weaponizing the Department of Justice to demand accountability for those who weaponized the Department of Justice. And nobody knows what that looks like more than President Trump. We are not going to tolerate gaslighting from anyone in the media or from anyone on the other side who is trying to say that it's the president who is weaponizing the DOJ. It was Joe Biden and his attorney general who weaponized the DOJ. Joe Biden used this sacred American institution to go after his political opponent [Trump] in the middle of an election year. And you look at people like Adam Schiff and like James Comey and like Letitia James, who the president is rightfully frustrated. He wants accountability for these corrupt fraudsters who abuse their power, who abuse their oath of office to target the former president and then-candidate for the highest office in the land."

Meanwhile, Trump's Department of Justice quietly dropped any legal action targeting his loyal, tough-talking, 63-year-old "border czar," Tom Homan, who reportedly accepted a bag with $50,000 in cash from undercover FBI agents weeks before the 2024 election. One MAGA adherent suggested the $50,000 in illicit cash was well worth Homan's helping cleanse the country of millions of illegal immigrants – a not uncommon conclusion in MAGAverse, judging from a dip into Elon Musk's social-media town square. Incidentally, Trump did replace Siebert with Halligan, 36, a former Miss Colorado USA competitor and personal lawyer for Trump who had no experience as a federal prosecutor but fulfills the president's expectations of loyalty and TV-perfect looks. Her previous duty for the White House saw her pursue another of Trump's priorities: addressing concerns about the Smithsonian Institution which, the president charged in an executive order, "has in recent years come under the influence of a divisive, race-centered ideology" in which the nation's "unparalleled legacy of advancing liberty, individual rights and human happiness is reconstructed as inherently racist, sexist, oppressive or otherwise irredeemably flawed." Serving as chancellor of the Smithsonian Institution's board of regents: Chief Justice Roberts. One wonders how he views his independence of himself and that of fellow regents in this instance.

One is fascinated by the administration spokeswoman arguing that, in pressing for his people to prosecute his enemies, Trump "has every right to express how he feels about these people, who literally campaigned on trying to put him in jail, who literally tried to ruin his life and ruin his businesses." The indictment of former FBI director Comey that same week for supposedly making a false statement to Congress and obstructing a congressional proceeding – notwithstanding Siebert's earlier argument that charges were similarly insufficient to put Comey on trial – proved that America under President Trump and the Roberts Court had finally entered the era of politically motivated show trials, a la Stalinist Russia. For those who argue that such federal allegations are no different than those dogging Trump during his four years out of power, it's critical to remember that much of the evidence used to indict Trump on Aug. 1, 2023, was in plain sight, ranging from meticulously recorded telephone calls to twist arms and threaten state officials for their help in ballot manipulation, to the televised assault on the U.S. Capitol after President Trump riled up a massive crowd of outraged supporters near the White House to "fight like hell." Comey's indictment, by contrast, is mired in vague and ambiguous and arguably misinformed statements on the part of the U.S. senators quizzing Comey during two different Senate hearings. Furthermore, any possible Comey trial immediately stood a good chance of not happening, given the president's publicly lashing Attorney General Pam Bondi and the Department of Justice to pursue his enemies – to the point Trump sidelined an experienced prosecutor who refused to do his bidding and appointed an inexperienced legal lackey to do so – and then Trump's gloating over the federal indictment of Comey when it came. This was sufficient to argue for a dismissal of charges for clearly vindictive prosecution.

"Whether you like Corrupt James Comey or not, and I can’t imagine too many people liking him, HE LIED!" President Trump informed the nation in a Sept. 26 post issued at 6:57 a.m. "It is not a complex lie, it’s a very simple, but IMPORTANT one. There is no way he can explain his way out of it. He is a Dirty Cop, and always has been, but he was just assigned a Crooked Joe Biden-appointed Judge, so he’s off to a very good start. Nevertheless, words are words, and he wasn’t hedging or in dispute. He was very positive, there was no doubt in his mind about what he said, or meant by saying it. He left himself ZERO margin of error on a big and important answer to a question. He just got unexpectedly caught. James 'Dirty Cop' Comey was a destroyer of lives. He knew exactly what he was saying, and that it was a very serious and far-reaching lie for which a very big price must be paid! President DJT" Forty-three minutes later, Trump posted: "I’d like to thank [FBI director] Kash Patel, and the outstanding members of the FBI, for their brilliant work on the recent Indictment of the Worst FBI Director in the History of our Country, James 'Dirty Cop' Comey. The level of enthusiasm by the FBI was incredible, but only caused by the fact that they knew Comey for what he is, and was, a total SLIMEBALL! Again, thank you to the FBI and, specifically, those that worked on this case with U.S. Attorney Lindsey Halligan, and the DOJ. Thank you for your attention to this matter. MAKE AMERICA GREAT AGAIN! President DJT."

In a statement issued after the Sept. 25 indictment – itself a bungled affair given the inexperience of U.S. Attorney Halligan, who one could argue lied to a federal judge in Halligan's mishandling of indictment papers – Comey invited Americans to show faith and courage: "My family and I have known for years that there are costs to standing up to Donald Trump, but we couldn't imagine ourselves living any other way. We will not live on our knees, and you shouldn't either. Somebody that I love dearly recently said that fear is the tool of a tyrant. And she's right. But I'm not afraid. And I hope you're not either. I hope instead you are engaged. You are paying attention. And you will vote – like your beloved country depends upon it, which it does. My heart is broken for the Department of Justice. But I have great confidence in the federal judicial system. And I'm innocent. So let's have a trial and keep the faith." 

Meanwhile, Trump toad Jim Comer, chairman of the U.S. House Committee on Government Oversight, promised more of the very retribution Trump vowed during his rally in Waco kick-starting his 2024 reelection campaign. "But he's not the only person that's lied to Congress," Comer eagerly told Fox News of the former FBI director. "Dr. Fauci's lied to the House Oversight Committee. Hunter Biden lied to the House Oversight Committee. Jim Biden lied to the House Oversight Committee. There are criminal referrals there as well, and I think that Comey is the first step in what many people in America that believe in the Constitution and want to see justice believe is the first step with Comey. I think there are going to be many more. Finally, we're seeing accountability and, you know, God bless Donald Trump and his administration." On the other hand, former U.S. Attorney Andy McCarthy, no friend of the Democrats, marveled on the same network of the charges and raised the prospect of problems for those pressing this case forward. "The indictment almost fails as an indictment in that it doesn't give you notice of what Comey has actually done. But factually there's nothing there. So this smacks of wanting to put Comey through the process, which is what lawfare is ... the problem he has is those lawyers at the DOJ, when they sign off on those pleadings, they have an ethical responsibility to at least bring a case that has a reasonable chance of prevailing, and this is not that case."

Given the glaring weakness of the Department of Justice case against Comey, it's unlikely it will enter the arena of the highest court. It will falter in district court or certainly the appeals court. It's possible Trump is indeed only employing the DOJ to torment the former FBI director by putting him through the punishing process of lawfare. Yet on the largely unnoticed 20th anniversary of the Roberts Court – he was sworn in as chief justice on Sept. 29, 2005 – one is justified in pondering the decisions that lay ahead for Kavanaugh, whose selection by President Trump raises legitimate questions about his fitness for office and the distinct possiblity of inappropriate loyalty as Trump up-ends government, tests constitutional limits and abuses authority in multiple ways ranging from his financial self-enrichment, to badgering personal and political enemies, to dispatching military forces to occupy U.S. cities. In the first months of Trump's second term, Kavanaugh has repeatedly fallen well short of the constitutuional regard he vowed during his confirmation hearings seven years earlier and that he repeated during his Waco visit. "No one is above the law in our constitutional system," he told Chairman Grassley at one point during his confirmation hearings. "Federalist 69, Hamilton makes clear all the ways that the executive branch, as designed by the Framers of the Constitution, was different from the monarchy. Under our system of government, the executive branch is subject to the law, subject to the court system and that is an important part of Federalist 69. It is an important part of the constitutional structure. In general, so, too, we, as judges, are separate from the Congress. We are not supposed to be influenced by political pressure from the executive or from the Congress. We are independent. We make decisions based on law, not based on policy, not based on political pressure, not based on the identity of the parties."

To continue Kavanaugh's explanation to Sen. Grassley during confirmation hearings on what makes a good judge and what now seems empty rhetoric:

The great moments in American judicial history, the judges had backbone and independence. You think about Youngstown Steel. You think about, for example, Brown v. Board of Education, where the court came together and knew they were going to face political pressure and still enforced the promise of the Constitution. You think about United States v. Nixon, which I have identified as one of the greatest moments in American judicial history, where Chief Justice Burger, who had been appointed by President Nixon, brought the Court together in a unanimous decision to order President Nixon, in response to a criminal trial subpoena, to disclose information. Those great moments of independence and unanimity are important.

Respect for precedent is another one. We are a system of constitutional precedent. Precedent is not just a judicial policy. It is sometimes stated that it is just a policy. Precedent comes right from Article III of the Constitution. Article III of the Constitution refers to the judicial power. What does that mean? What does ‘‘judicial power’’ mean? Judicial power, you look at Federalist 78, and what is described there is a system of precedent. So precedent is rooted right into the Constitution itself, and it is constitutionally dictated to pay attention and pay heed to rules of precedent.

Beyond that, being a good judge means paying attention to the words that are written, the words of the Constitution, the words of the statutes that are passed by Congress. Not doing what I want to do, not deferring when the Executive rewrites the laws passed by Congress, but respect for the laws passed by Congress, respect for the rule of law, the words put into the Constitution itself. That is part of being a good judge. That is part of being independent. That is part of precedent. 

Legal scholars and journalists who cover the courts aren't convinced. Matt Ford of The New Republic, in a piece written shortly before the Roberts Court's 20th anniversary, concluded “the Roberts court no longer resembles a judicial body as much as it resembles the old House of Lords that used to dominate British politics.” He also noted that it had rolled back civil rights protections for more than a decade: "Instead of holding that civil rights laws and remedies were unconstitutional when they were enacted – a move that would come uncomfortably close to endorsing Jim Crow – they instead argued that the measures are no longer needed." Devon Ombres, senior director for courts and legal policy at American Progress, mocked the chief justice in particular, noting that "he said, ‘I will walk into every case with an open mind and engage in judicial humility,’ and he has done the exact opposite for the last 20 years." Lisa Needham of Public Notice lamented that, "compared to previous chief justices, the entire arch of the Robert Court has been about enshrining discrimination into law and protecting the powerful at the expense of the powerless" – surely evident in the high court's Citizens United v. Federal Election Commission, empowering America's oligarchs such as Elon Musk. Meanwhile, Michael Klarman, a professor of American legal history at Harvard Law School, lambasted Chief Justice Roberts for “appeasing the autocrat,” adding: “The basic lesson of the 20th century is that doesn’t work.”

Joan Biskupic, full-time CNN legal analyst and former Supreme Court reporter for the Washington Post, focused on Trump v. United States and the immense damage done in its wake. "The Trump immunity case began after special counsel Jack Smith secured a grand jury indictment of Trump for conspiring to overturn the results of the 2020 election," Biskupic wrote of the Roberts Court's 20th anniversary. "Smith asked the justices in December 2023 to expedite their consideration of whether Trump should be shielded from prosecution. But the justices turned down Smith, leaving the case to be first heard by a U.S. appeals court, which ruled against Trump. When the justices finally resolved the dispute in July, their complex test for assessing various elements of Trump’s conduct, along with the election-season calendar, ensured no trial would occur before the November contest between Republican Trump and Democratic Vice President Kamala Harris. Since his return to the White House, Trump has used the 2024 immunity decision and a series of new rulings [by the high court] to remake America, through mass government firings, control of public funds, and broadscale deportations." 

On the very last day of September 2025 – 19 days after Justice Kavanaugh spoke in Waco and protesters outside raged not at the infamous 2018 claims of his alleged sexual assault of a girl when they were in high school but his lack of constitutional spine, and 22 days after Kavanaugh's tut-tut court concurrence permitting racially based stops and interrogations by masked federal agents to continue in America – President Trump, the man who appointed Kavanaugh, Gorsuch and Barrett to lifetime terms on the high court, ordered U.S. military leaders gathered from around the world on short notice to dismiss the old priority of stabilizing the globe for democracy and the economy and, rather, fight a “war from within” in cities such as San Francisco, Chicago, New York and Los Angeles, much as he ordered his supporters to show their intolerance at the U.S. Capitol on January 6, 2021. As one of the few newspaper editorialists in the nation in 2018 to defend Kavanaugh of Christine Blasey Ford's unsubstantiated charges of a supposed booze-fueled sexual encounter more than three decades earlier, I have more right than most to lament Kavanaugh's complicity in opinions and orders reinforcing presidential power beyond anything imagined by Hamilton and Madison and Jay in "The Federalist Papers" that Kavanaugh so loves to quote, as did his mentor, Judge Ken Starr, who similarly came to Trump's aid when it counted. 

I am reminded of the testimony submitted during the confirmation hearings by Peter M. Shane, a law professor at my old alma mater of Ohio States, who specialized in constitutional separation of powers and feared Kavanaugh's long-ago embrace of the unitary executive theory would cause problems. "Aggressive presidentialism on the Supreme Court would pose a risk to constitutional checks and balances at any time, but the danger at this current moment is exceptionally grave," Shane said. "We have a president not only disdainful of the institutions most important to checking abuses of executive power, but his utterances betray a fantasy that the other branches of government should actually take direction from him." Less remembered is the submitted 2018 testimony of John Dean, former White House counsel to U.S. President Richard Nixon and involved in the Watergate coverup and in later years a warning of executive abuses of times past. "If Judge Kavanaugh is confirmed, I submit we will have the most pro-presidential powers Supreme Court in the modern era," Dean said. "I am old enough to remember when conservative orthodoxy fought the expansion of presidential and executive powers. The so-called 'imperial presidency' was considered undemocratic. But conservatives have slowly done a one-hundred-and-eighty-degree turn and concocted from whole-cloth what they call 'a unitary executive theory,' using the sparse language of Article II of the Constitution to give presidents authority over the entirety of the executive branch, including supposedly independent regulatory agencies created by Congress and placed with the executive branch. With Judge Kavanaugh on the court, we should anticipate a majority that will find it increasingly difficult to discover any presidential actions which they do not approve. A Supreme Court that is decidedly pro-presidential power is deeply troubling with the contemporary Republican-controlled Congress, which has shown no interest in oversight of a Republican president. Republicans are now creating a Supreme Court that will be a weak check, at best, on presidential powers."

Lately Justice Kavanaugh seems to be trying to walk back the smoldering resentment created by his partial concurrence with an Aug. 21 opinion by Justice Neil Gorsuch admonishing lower courts for not strictly abiding by Supreme Court orders and thus risking anarchy. At this month’s Sixth Circuit Judicial Conference in Memphis, Kavanaugh specifically praised lower-court jurists, “particularly the trial judges who operate alone.” He even acknowledged some of the confusion that district and appeals judges face in trying to sort out Supreme Court opinions and orders. “It's possible we screwed up, very possible, we're human,” Kavanaugh told conference jurists and lawyers as reported by Politico’s Josh Gerstein. “But it's also possible, and oftentimes is the case, that it's the product of nine of us, or at least five of us, trying to reach a consensus or a compromise on a particular issue that might be difficult. I'm fully aware that can lead to a lack of clarity in the law and can lead to some confusion, at times.” Consistency, Kavanaugh added, “is a lot easier when it's one person than when it’s nine.”

Public frustration with the high court is high. A Pew Research Center survey conducted in early August showed faith in the court near a 30-year low. Only 14 percent of Americans say justices are doing an excellent or good job of keeping their own politics out of decisions. Yet even Supreme Court decisions that aren’t rushed, aren't cryptic and aren't “shadowy” are so tedious, so caught up in fine points about centuries of law, so vulnerable to accusations of "cherry-picking" from the vastness of previous legal rulings, that reasonable Americans can draw different conclusions about the Constitution and the law or else throw up their hands in despair and awe.

Consider Supreme Court decisions such as Rucho v. Common Cause (2019) and Allen v. Milligan (2023) that differing partisan sides cited in justifying stands in the ugly, racially inflammatory redistricting showdown Texans witnessed this summer – a battle that high court rulings failed to prevent. Or, in that vein, consider the 5th Circuit Court of Appeals’ dubiously decided Petteway v. Galveston ruling, also cited by Texas legislators and the Trump administration in scrapping a key section of the Voting Rights Act. Yet this latter ruling applies only to Texas, Mississippi and Louisiana and not the rest of the country. In short, two very different standards of the Voting Rights Act remain in force in different parts of the United States, something the high court's Shelby County v. Holder ruling (2013) supposedly served to eliminate.

Beyond that, decisions such as Trump v. Anderson (2024), which reimagines the Fourteenth Amendment well beyond its text, defying the bygone conservative tenets of “originalism,” arguably turn how many of us once viewed the Constitution upside-down and inside-out. Granted, one can see problems with a constitutional provision that allows a state to keep off the ballot any candidate who, as a previous office-holder, “engaged in insurrection or rebellion.” But is it up to the high court to legislate a solution not reflected in the text of the constitutional amendment or Reconstruction-era congressional arguments for it? Are we suppose that lawmakers from an earlier generation of Americans are too unsophisticated to recognize what they are doing and why, particularly after another crisis that saw the nation war with itself? To quote distinguished legal scholars William Baude and Michael Stokes Paulsen of the court's decision, which effectively kicks the question and dilemma down the road to another court and another constitutional crisis, "Unlike great cases where the press of time and circumstances had the effect of concentrating the judicial mind to produce important landmark constitutional decisions, the court produced a flimsy decision in a high-stakes, high-profile, high-intensity, tight-deadline case." Score another one for Trump.

Or consider, one final time given its issuance just three days before his Waco appearance and all of his constitutionally idealistic talk at MCC about "free speech, freedom of religion, due process, equal protection and the like," Justice Kavanaugh's stunning message to people of color in the Supreme Court emergency stay shelving a lower-court ruling clamping down on immigration stops by federal agents in the Los Angeles area that many understandably view as racial profiling. While commendably trying to reason with all in possible recognition of the stay's explosive connotations, Kavanaugh arguably punts in his 10-page concurrence, lazily relying at one point on the Immigration and Nationality Act in allowing U.S. immigration officers to “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States” when in fact the hamfisted tactics of often-masked federal agents targeting and arguably terrorizing car-wash workers, farm and agricultural workers, street vendors, recycling-center workers, tow-yard workers and packing-house workers must of course fuel resentment among citizens of all colors justified in expecting a sense of fair play and respect for all in America, especially considering the prospects for innocents becoming swept up in federal dragnets. "In one instance, the agents approached and prevented a non-white individual from walking away but not those who appeared to be Caucasians," the lowly district court found. Consider the testimony of one of those with brown skin who was detained while working at a car wash: “I believe that the agents only stopped people who look Latino. Two of my co-workers at the car wash have light skin. One of them is Persian and the other is from Russia. Neither of them was approached by immigration agents and they were not arrested with us.” Moreover, the district judge found, "it is undisputed that the agents are masked and often do not identify themselves." I'm reminded of my long-ago days in the West Texas town where Kavanaugh's wife was born and reared; every so often a nearby slaughterhouse was raided because of the number of illegal immigrants employed in work that few whites would condescend to do. 

In allowing these immigration stops to continue, Kavanaugh, obviously white, appeals to common sense and argues “that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.” This might well make sense till one realizes U.S. citizens with brown skin have found themselves targeted by Trump's immigration authorities, leading to the lawsuit that triggered the lower-court ruling. Notably, the only Hispanic member of the high court, Sonia Sotomayor – Bronx-born daughter of Puerto Rican-born parents – characterized the ruling as “yet another grave misuse of our emergency docket. We should not have to live in a country where the government can seize anyone who looks Latino, speaks Spanish and appears to work a low-wage job.” Others echo her concerns as they comprehend a "show-me-your-papers" nation, at least for some among us. “The Supreme Court’s decision deals a devastating blow to communities reeling from the government’s racially discriminatory raids," Annie Lai, director of the Immigrant and Racial Justice Solidarity Clinic at the University of California Irvine School of Law, said after the Sept. 8 stay. "Through the stroke of a pen, through its emergency shadow docket, the court has written off decades of Fourth Amendment law."

Nor was immigration some remote issue, far removed though Central Texas might seem from Texas' Rio Grande Valley or the "sanctuary city" of Portland or Hispanic-populated Southern California, and only involving the insidious criminal element many believed Trump would primarily target if he was elected in 2024. For instance, many Wacoans since spring lamented and resented what some believed to be the deportation of and others claimed was the flight of longtime, popular restauranteur Sergio Garcia, long a pillar in the community because of his culinary skills and philanthropy and now a high-profile victim of Trump's election that most voters in the region helped ensure. In a tight-lipped April 2 post, the family explained only that his disappearance was "due to immigration circumstances," rejecting efforts to say more. And days after Justice Kavanaugh's visit, remaining Garcia family members posted news that their family food truck would soon close. "From selling ceviche from a truck to opening El Siete Mares [restaurant] and later rebuilding after the recession to create Sergio’s Food Truck & Restaurant, his story has always been one of resilience, determination and love for this community," family members said in a Sept. 18 Facebook post of farewell. "For more than 30 years, Sergio poured his heart into serving Waco. Thank you for making Sergio’s part of your wedding celebrations, your Saturday mornings at the farmers market and the festivals at St. Francis Church. These memories are what made the journey so meaningful. Though our doors will soon close, Sergio’s legacy of hard work and heart will live on. Thank you, Waco, for embracing his dream and making it part of your own. Also, please do not bring up anything political. This post is not meant to be political."

Old photos posted on the Facebook page included one of young Garcia, wearing a suite and tie, standing in a rustic setting alongside then-President George W. Bush and first lady Laura Bush. The photo was probably taken at their nearby Prairie Chapel Ranch where he had catered an event for the president. The Bushes scribbled below their images their best wishes. During the "Bush Country," years, Garcia's El Siete Mares restaurant near downtownb proved popular with Bush administration staffers – almost certainly including Kavanaugh, who sometimes joined Bush for his month-long summer vacations – and the visiting press. The food truck, all that remained of El Siete Mares, finally closed on Sept. 27. 

The supreme peril of methodically applying the unitary executive theory – if that's what Kavanaugh and the high-court majority are consciously or unconsciously doing in all of their concessions – is that they convey to the larger public their role as accessories in Trump's demand for more and more executive power, even as Trump demonstrates daily his inability to employ it wisely. They telegraph to "We the People" that their role is as, to borrow from one of the protesters in Waco, "supreme stooges." Certainly Trump is an awful excuse for justifying the unitary executive theory, especially when gauged alongside Obama or the Bushes or even Clinton and Reagan. The ultimate risk is that the court will too late draw a figurative line in the sand, either out of long-buried principle or fear over its crumbling legitimacy. Not only are Trump's lawyers resourceful in outmaneuvering these cloistered justices when they themselves should have from the very start built on the constitutional fidelity of their "inferior" judges across the nation but Trump remains popular with a fanatically loyal political, societal and religious base hanging on his every word and whim, all reaffirmed by popular media individuals ranging from Sean Hannity and Tucker Carlton to, till recently, Charlie Kirk. The court majority should remember their power of judicial review of government authority remains tenuous. While arguably implied, it is found nowhere in the Constitution and isn't "originalist" in the sense so many in the court's right-wing majority insist is relevant in major decisions. There's a reason why Kavanaugh cites Marbury v. Madison as an important case.

Kavanaugh may well have displayed what Professor Blackman argues are “media-savvy” skills in his concurrence with the emergency stay impacting immigration raids in Los Angeles by arguing that, yes, sure, everyday citizens unfairly roughed up by federal agents should, of course, have legal recourse. “To the extent that excessive force has been used,” Kavanaugh wrote, “the Fourth Amendment prohibits such action and remedies should be available in federal court.” Now Kavanaugh and fellow justices must make sure that the high court bucks its own trend in this vein and actually recognizes such claims.

One still wonders about Kavanaugh's interaction with and insight into everyday Americans in all their diversity, passions and problems as he questions and studies and deliberates beyond the marble exterior and bronze doors of an imposing court building once dismissed by Justice Harlan Fiske Stone as "bombastically pretentious." Does Kavanaugh reflect on the words inscribed above the court exterior – "Equal Justice Under Law," drawn from the Lincolnesque idealism of the Fourteenth Amendment that the court and president seem eager to blot out or rewrite as a constituional inconvenience? "On the court, you learn," Kavanaugh insisted at one point during his question-and-answer session at MCC. "As Justice [Stephen] Breyer came into my office when I first got onto the court – I think I was confirmed on a Saturday evening and he came in on Monday and he said, 'Here’s one word of advice: Listen.' And that’s great advice because you learn by listening and by hearing other people’s perspectives. It helps you make a better decision. It shows respect for other people. So if there’s one lesson over 20 years as a judge that reinforces what I learned as a kid, it’s to try to understand other people’s perspectives as best you can."

Professor Vladeck credits Justice Kavanaugh for at least offering an explanation in the controversial emergency stay shelving the lower-court ruling clamping down on immigration stops by federal agents in the Los Angeles area. All told, though, it may leave the public more confused, given it so obviously runs counter to the sort of teachings by which many of us were raised. What's more, Vladeck says the quality of argument fall short, ultimately demonstrating "how much the justices in the majority in these cases seem to be twisting themselves – to say nothing of the facts and/or the law – into pretzels in order to rule for the Trump administration." In a Sept. 9 podcast with legal commentator and lawyer Katie Phang to help citizens better understand the court and the law, Vladeck elaborated: “I think the problem is how do we, as lawyers who spend a lot of time trying to help non-lawyers understand what’s going on in the world – how do we translate for folks why this ruling is a huge deal but also not conclusive, why headlines like ‘Supreme Court legalizes racial profiling’ aren’t quite right but ‘Supreme Court clears way for more racial profiling’ is probably not inaccurate.” Indeed, the high-court order doesn't preclude further proceedings in the case and District Judge Maame Ewusi-Mensah Frimpong – a Los Angeles-born, Harvard-trained jurist of Ghanaian ancestry who represents so much of what Charlie Kirk seemed to question in competency and qualification – is due to hear arguments later this month on whether to issue another preliminary injunction based on additional evidence of government-run immigration raids.

Meanwhile, Professor Blackman focuses on landing a chief justice who can make Trump’s MAGA transformation of governance more palatable to everyday citizens in ways Kavanaugh surely never imagined in 2009. The court already seems to be accommodating this possibly irreversible overhaul of foundational law and governance, either out of ideological deference or to avoid a constitutional showdown in which President Trump finally loses patience and simply defies the high court, daring it to enforce its rulings. After that, all bets are off on the so-called “American Experiment.”

A column extracted from this essay was published Sept. 19, 2025, in the Waco Tribune-Herald. This essay was updated and expanded on Sept. 27, 2025.