The supreme Mr Trump

And the Supreme Court

“The law of damages is like bingo; but people like bingo...”

I’m indebted to Mr Robert Reich for the information that the state of Colorado will not allow Mr Donald Trump to run in the primary election there, preparatory to his candidacy for the presidency. All in all, that’s a bit of a blow. But Mr Trump may appeal that decision, which Colorado assures us was not arrived at lightly.

I am heartened that the supreme court of the state of Colorado does not hand down its rulings lightly. The question is, however, how lightly the Supreme Court of the United States hands down its rulings. That’s if it even deigns to read the petition, of course.

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Mr Trump will appeal to the Supreme Court in Washington ... right, ok.

I’m no expert but that’s a constitutional court, isn’t it? With, how many judges ... nine? One chief and eight associates. They sit as a plenary bench. They decide applications called “writs of certiori”. They don’t decide all applications to the court. They only decide about 85 out of the 7,000 applications made by cert each year. Right ...

There’s a lot to know about the SCOTUS bench. Here are some of the factors mentioned in the online encyclopaedia Wikipedia:

• whether one or both their parents was an immigrant, or

• whether the Justice was him or herself born outside the USA,

• whether they served in the armed forces,

• their ethnicity (African-American/Hispanic/Caucasian),

• their religious confession,

• their sex,

• where in the US they hail from,

• where they graduated as a doctor of laws, and

• what they did before being appointed to the Supreme Court.

All these things are interesting, and I can commend the Wikipedia entry to you. I gain the impression that these aspects of geography, ethnicity, sex, religion and so on are important, because the bench should not be heavily weighted towards one particular viewpoint.

Technically Justices don’t actually need to be lawyers. That’s not a constitutional requirement, but it is a practical one, I guess. Appointments are by the president, and the Senate has a power of rejection of his or her proposals. It’s not therefore possible to ensure a bench that’s evenly appointed by Republicans and Democrats, because when the appointment is made is when the appointment needs to be made, owing to death or retirement. Or upping the numbers, of which more anon.

It’s fairly clear to me that the age of the judges can’t be spread across the broad spectrum. I wonder if radically different rulings would be handed down if the bench were younger, like five years out of college. Religiously, there need to be some Jews, some Catholics, some Episcopalians. That’s even handed. Some women, some men. Some racial minorities, like African-American, or Hispanic. The politics of the appointer is more haphazard.

It could be that a younger bench would rule on things like abortion differently; a larger number of Black judges could have greater sensitivity for the issues concerning that population group. Likewise the religious element. But what role does the fact of a justice’s appointer being Republican or Democrat have?

Well, we’re told it has a vast role. Is that right? The interpretation of the basic law of the USA depends on who appointed the judge? The US Constitution, any country’s constitution for that matter, is a document that should be imbued with a certain permanence. It’s not tax legislation. The Supreme Court’s task is to rule on whether certain orders, laws, judgments, etc. are consistent with the constitution. There is a certain irony to the simple fact—and I know this is trite, but even if it’s trite, sometimes we need to remind ourselves—that the steadfast mainstay of the rights and obligations of the citizenry of the US blows with the political winds that waft around, not the Supreme Court, but the White House. It is so, but I find it an extraordinary proposition: that how the constitution is interpreted depends on who was president when each member of the court was appointed. It depends to a degree on the constitution, also. Does it depend on the justices’ age ... church ... law school ...?

What about the 333 million people who are governed by the constitution? It’s theirs as well as the justices’, isn’t it? While not quite so regularly changeable as a tax statute, can’t everyone in the country just count on it?

If the court is so susceptible to influence by dint of who appointed whom, one has here a somewhat delicate issue. The state of Colorado would like to prevent Mr Trump standing for office again. Mr Trump, if he thinks Colorado is wrong, must submit a writ of certiori to the Supreme Court in the capital. And two things make that process a greater farce than it now already would be.

One is that Mr Trump is a US citizen and therefore is entitled to the protections and benefits afforded him under his country’s constitution. Such are the rights that the constitution itself vaunts. But the judgment he gets on his writ will depend on who appointed the bench. That borders on iniquitous, though, as my delict professor William A. Wilson said to us in law school, “The law of damages is like bingo; but people like bingo...” So, Mr Trump, like anyone else, can risk his all, just like we all can, pretty much “on one turn of pitch and toss” (Kipling).

But the second iniquity is that he was precisely one of the appointers of the very bench he wishes to petition. Of course, governments are party to court proceedings every day, and courts don’t favour the government just because it’s the government. They don’t, do they? They find in favour of the party who prevails at law.

Seventy-five to 85 writs out of 7,000 are decided on. The odds of winning at roulette are better than that. Is this the just democracy that Mr Trump wants to bring asunder? If he fails in his endeavour, they will mend it, then, won’t they? Oh, and perhaps if the number of cases heard by the court could be upped? Doesn’t access to justice mean that, if you wish to assert your constitutional rights, you should be heard? As a party? And not brushed off before you’ve even got a foot in the door?

Robert Roberson III submitted a writ of certiorti to SCOTUS, through the offices of Ms Gretchen Sween, Esq., his very capable legal counsel. Texas wants to inject Mr Roberson. He’s quite keen to prevent that, because he thinks he’s innocent. SCOTUS has declined to hear his cert. He’s on death row in Texas for a crime he didn’t commit. A crime that no one committed, as far as I can gather. And he thinks amendment 14 has been flouted. And SCOTUS won’t hear his case.

Isn’t that then a second flouting of amendment 14?

If only one per cent of cases founding on a constitutional wrong that are submitted to the Supreme Court get ruled upon, either the Supreme Court needs to streamline its caseload administration, or the Supreme Court’s numbers need beefing up, or—would it be outrageous to suggest this? Maybe the constitution is ripe for overhaul, if 7,000 people a year think it’s not been applied properly. That, or, I suppose, people should apply it properly, but that’s what it was instituted for, wasn’t it?