Justice Sonia Sotomayor, Dissent, Donald J. Trump vs. United States
Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.
Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
With fear for our democracy, I dissent.
Alexei Navalny, “Victory Is Inevitable. We Must Not Give Up”
Justice Elena Kagan, Dissent, Loper Bright Enterprises et. al. v. Raimondo
Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. … But evidently that was, for this Court, all too piecemeal. In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar. It defends that move as one (suddenly) required by the (nearly 80-year-old) Administrative Procedure Act. But the Act makes no such demand. Today’s decision is not one Congress directed. It is entirely the majority’s choice. …
It gives courts the power to make all manner of scientific and technical judgments. It gives courts the power to make all manner of policy calls, including about how to weigh competing goods and values. (See Chevron itself.) It puts courts at the apex of the administrative process as to every conceivable subject—because there are always gaps and ambiguities in regulatory statutes, and often of great import. What actions can be taken to address climate change or other environmental challenges? What will the Nation’s health-care system look like in the coming decades? Or the financial or transportation systems? What rules are going to constrain the development of A.I.? In every sphere of current or future federal regulation, expect courts from now on to play a commanding role. It is not a role Congress has given to them, in the APA or any other statute. It is a role this Court has now claimed for itself.
Jonathan Blitzer, “The Forgotten Origins of a Migration Crisis”
This is a moment of the rise of populist authoritarianism and it’s, frankly, terrifying. A big part of the appeal of populist authoritarians with the broader electorate is based on people’s confused perceptions of the immigration situation. Insofar as Donald Trump can be said to be saying anything coherent at any point, the one thing that he says consistently, and it has obviously worked for him with a large share of the electorate, is this idea that our borders are being overrun, the demographics of our country are changing, we are being overtaken by a foreign population.
These are all obviously menacing, bewildering things to say and shot through with lies and falsehoods. But that taps into a real fear and confusion in the electorate that will have consequences for the outcome of our elections. I don’t think it’s an exaggeration to say that immigration has the potential to be this powder keg in our politics that can really threaten the institutions that govern civic and political life.
Scott Lemiuex, “Coney Barrett Babies”
There’s not really a contradiction per se in Mississippi Republicans using state coercion to produce this kind of brutality toward women they don’t want to have access to healthcare and children they want to go hungry. It’s all one seamless web of cruelty — it’s what the “pro-life” movement in the United States just is.
Czeslaw Milosz, “Meaning” (via)
When I die, I will see the lining of the world.
The other side, beyond bird, mountain, sunset.
The true meaning, ready to be decoded.
What never added up will add Up,
What was incomprehensible will be comprehended.
– And if there is no lining to the world?
If a thrush on a branch is not a sign,
But just a thrush on the branch? If night and day
Make no sense following each other?
And on this earth there is nothing except this earth?
– Even if that is so, there will remain
A word wakened by lips that perish,
A tireless messenger who runs and runs
Through interstellar fields, through the revolving galaxies,
And calls out, protests, screams.
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