Supreme Court Majority Intensifies Assault On Law, Order And Justice

John Roberts
Chief Justice John Roberts
Youtube Screenshot

As if Joe Biden’s faltering performance in Thursday night’s debate wasn’t enough, on Friday morning Donald Trump’s Supreme Court banged the gavel down on three cases that are part of the radical right’s assault on government, law and order, and plain old decency and empathy for others less fortunate than the rest of us.

As expected, the court overturned the Chevron precedent, which allowed federal agencies broad discretion in interpreting ambiguous laws and rules written by ignorant, confused, and often compromised members of Congress. Chevron permitted agencies and regulators to write the specific rules to apply laws that Congress passed in more general form. This power will now be taken away from agencies like the Environmental Protection Agency, the Securities and Exchange Commission, the Federal Trade Commission, and many other federal agencies.

Roberts held that agencies “have no special competence in resolving statutory ambiguities. Courts do.” Disputes about environmental or financial regulations that used to be resolved within the agencies that regulate the environment and financial institutions will now have to be litigated every time they arise. In addition, Congress will be saddled with untangling the incongruities and inconsistencies that are built into the tools and methods of living in the modern world. For example, Congress, which has shown no special talent for dealing with computers or the internet – many members of Congress have proudly announced they don’t even use email – will now have to write laws that regulate the bottomless pit of mysteries surrounding how Artificial Intelligence will be integrated into systems already in existence.

This is how much “courts” know about “statutory ambiguities.” In the Supreme Court hearing over the bump stocks – which the ATF ruled were mechanisms that turned an ordinary rifle into an illegal machine gun – Clarence Thomas and Ketanji Brown Jackson spent a good portion of the hearing essentially arguing over what a bump stock is, how it works, and what it does. Thomas got his interpretation of how a bump stock works completely and utterly wrong and joined a court majority that found bump stocks do not enable rifles to function as machine guns, when they clearly do.

So good luck Congress, writing new laws to prevent another financial meltdown like the one in 2008 that happened because the insane sale and resale and bundling of something called “derivatives,” which Congress had never written a law about, went wild and caused banks to fail. The courts will be left with figuring all that out now, because Congress certainly can’t, and now the SEC and FTC are essentially forbidden from writing and enforcing rules about new financial instruments.

As if that decision wasn’t enough, the Supreme Court next turned its attention to prosecutions of insurgents convicted of offenses committed on January 6. The court ruled against certain prosecutions alleging that individuals had corruptly impeded and stalled an “official proceeding,” that is, the counting and certification of electoral ballots by the Congress. Once again, Justice Roberts found a narrow sliver in the law through which he could spy a way to let the insurgents charged with that offense off. Those charged under the obstruction statute include the biggest insurgent of them all, Donald Trump, so that charge against him is bound to be challenged and dropped.

Roberts ruled that the whole thing came down to the meaning of the word, “otherwise” in the statute in question, making it a felony for anyone who “corruptly — (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”

See “otherwise” in there? That is the paragraph of the statute prosecutors charged insurrectionists under. Roberts found that in order for “otherwise” to apply, what the defendants did must include tampering with or mutilating a “record, document, or other object.”

How neatly that works! Prosecutors have to prove that defendants did something with paper documents in order to convict them of what they actually did, which was to “impede an official proceeding.”

Talk about strict construction. Next, Roberts will find that they didn’t “impede” the official proceeding of the Congress because they were not inside the well of the House of Representatives at the time of their obstruction.

But the Supreme Court wasn’t finished. In its final ruling of the day, the court upheld a ban on sleeping in public. Yes, you read that right. The Supreme Court just essentially ruled that it’s okay to make being homeless a crime if the homeless person puts his or her head down on a public sidewalk, street, or municipal park. Justice Sonja Sotomayor got right to the point in her dissent, joined by Kagan and Jackson: the laws the court upheld make it illegal to be “sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow.”

See how clever Justice Gorsuch was? It’s okay to lean your head against the headrest in your car and close your eyes, but not, presumably, if you evince an “intent to sleep” by using a blanket or pillow.

So where are homeless people supposed to sleep now that the Supreme Court has made being homeless and going to sleep a crime? Cities’ shelters are full, emergency rooms are overrun, charities that help the homeless are overwhelmed, so if you’re homeless, what are you supposed to do? Find a wall in an alley and while standing, lean up against it – as long as you don’t use a blanket or pillow or sleeping bag or poncho to keep off the rain, that is.

Meanwhile, Alito is off on private jets to luxury fishing resorts to quaff thousand dollar bottles of wine with his billionaire buddies, while Thomas jets off in Gulfstreams to join zillion dollar cruises with the likes of Harlan Crow, or maybe he just parks his motor home, worth several hundred thousand and paid for by a millionaire buddy, at a Walmart and crawls into the rack with Ginni under luxurious comforters, resting their heads on overstuffed pillows, because…

That’s the way this Supreme Court rolls. They are legislating from the bench an entire right wing agenda that has been on the books of places like the Heritage Foundation and Federalist Society for decades, nailing down the rights and privileges of millionaires and billionaires before their demographic clocks runs out and a bunch of young and gay and trans and Latino and Black voters come along and elect governments that start passing taxes that will strip the wealthy of at least part of their wealth and send them to their crying rooms to lament their diminished fortunes.

This is the land we live in, folks. They’re making decency and empathy illegal while rewarding a liar and felon and sexual abuser who wins every golf tournament he enters because he owns the course, the club, the fairways, the greens, and he makes the rules, including those confirmed and upheld by his bought-and-paid for Supreme Court.

Vote. Get out there and vote. It’s the only way we’re going to win back this country which we can feel slipping between our fingers. Don’t let it slip! Grab it! Vote!

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Start your day with National Memo Newsletter

Know first.

The opinions that matter. Delivered to your inbox every morning

{{ }}