Opinion: The Roberts Court cannot defy Trump

For a Supreme Court allegedly constituted by a conservative majority enamored with the legal theory of originalism, the current Trump, oops, I mean, Roberts Court seems unable to read the U.S. Constitution through which its rulings would logically flow. Yes, we must admit that in some high-profile, fully argued cases the court has given Trump a loss or two, but in the Shadow Docket of emergency White House appeals, Trump's success rate is well over 90%. Most of these cases are decided with no votes or rationale revealed. Simply a short paragraph granting the president his wish as if he were rubbing the genie lamp. Nearly every one of these decisions includes a caveat that either stipulates it is not the final word because a lower court is still dealing with the matter or that the Shadow Docket decision does not make a determination regarding the legality of the preferred Trump course of action. While those caveats sound like an out for the court if it later decides differently when the case finally comes before the justices for full argument, the reality is that the damage is already done. The court likes to use legal standing as a reason for granting Trump's wishes. As in the recent White House Ballroom decision, the court decrees that the party challenging Trump's actions does not have a legal right to embark on such a challenge. The breadth of the organizations and persons deemed unworthy of challenging the anointed unitary executive created by the 2024 Trump v. United States decision institutionalizes the impunity with which Trump can violate US Law and the Constitution. The ballroom decision stipulated that the legality of the process through which the East Wing was demolished and the ballroom was begun was not at issue in the court's decision. But Chief Justice Roberts, in one of his rare dissents to a Trump appeal, revealed what any One-L law student knew months ago. The entire ballroom boondoggle is an illegal adventure in Trump vanity spending hundreds of millions of unappropriated tax dollars on a project with no congressional authorization. The bigger issue here is the Supreme Court seems to be forgetting that its singular reason for being is to determine the legality of actions taken by agencies of the government or in disputes between states. In saying its decision does not make such determination, but rather just says Trump can go forth and continue to break the law reveals the true nature of this court. It cares not about the U.S. Constitution and the designated powers for each branch of government, or the laws passed by Congress that the president has sworn an oath to faithfully execute. It cares only about reinforcing the power structure of the unitary executive it created when it granted Trump immunity for presidential conduct. While the ballroom issue may seem like an esoteric matter with which to be concerned, there are others that the court has treated with similar frivolity that have real personal consequences. For example, when the court decided in Trump's emergency appeal to allow him to deport migrants to third party countries, the court stated that its decision was not the final determination on the constitutionality of the policy since it was still in the lower court structure working its way to the high court for oral arguments. But in allowing Trump to continue its preferred actions in the interim, the policy became de facto legal. Hundreds, if not thousands, of migrants have been deported to countries not of their origin because the third-party countries received millions of dollars of US taxpayer money to house US-deported migrants rather than them being detained here in the US or sent back to their home countries. So, what happens in a year or five when the case actually gets its full treatment at the Supreme Court? Should the court decide the policy is in fact illegal or that migrant due process was violated making said deportations unconstitutional, what recourse do these people have, if they are still alive? The weight of Supreme Court decisions, Shadow Docket or otherwise, have tremendous and often permanent implications for the people affected. Passing off emergency appeal cases as if they are simply a speed bump in the long legal road to resolution ignores the consequences to individuals and to the institutions of our government that ensure this democracy can withstand the ill-conceived whims of a narcissistic, aging, reality TV personality parading as president. Brad Gutierrez, Ph.D. is a retired U.S. Air Force combat pilot, professor of Political Science, military diplomat, and senior public policy civil servant. This article originally appeared on Asheville Citizen Times: Opinion: The Roberts Court cannot defy Trump