I write this from Seoul, at the end of a week-long stay that began for me with the International Conference on Education Research and is ending with reading the news that the U.S. Supreme Court has granted yet another emergency order to relieve the Trump administration of the obligations under the law, in this case removing a lower-court order requiring it to employ enough Education Department staff to fulfill its legal obligations.
The contemporary history of South Korea has witnessed four elected presidents being prosecuted for crime, three jailed for at least a time after a conviction (the fourth committed suicide during the investigation), and it looks like Yoon Suk Yeol, the former president who was impeached and removed from office for attempting to pull a coup last year, will also be prosecuted. In the Republic of Korea, its Constitutional Court is the trial venue after an impeachment by parliament, and the court voted unanimously in April to remove Yoon. South Korea is a country that holds its leadership accountable for flawed behavior.
In contrast, the current Supreme Court has not only been feckless in its current string of decisions that give a blank check to the Trump administration, but in a run of majority opinions over two decades, the court has eviscerated the public’s interest in fighting corruption. From public bribery cases to clean and fair elections, I can think of only one majority opinion that supported the public’s efforts to fight corruption on the merits — and in that one, which upheld Arizona’s independent redistricting commission, Chief Justice John Roberts dissented. If my memory serves correctly, the Chief Justice has never supported an anti-corruption effort on its merits.
The judiciary should be independent, not imperial. In an area of policy, one of the court’s roles is to say, “You can’t achieve this goal by this particular method.” But when a string of decisions strikes down a whole host of ways through which the legislature and executive have tried to address a broad public concern, the court is essentially forbidding any movement on the goal. I have no idea whether Chief Justice Roberts has intended to enable corruption, but his court absolutely has done so, and has all but declared public concern about corruption to be impermissible.
To that string of decisions on substance, we should add its actions thus far in the Trump administration to relieve pressure to follow the law, and in doing so undermine the efforts of their lower-court colleagues. Today’s decision is nominally a procedural one, but it is the latest in a series of procedural, emergency orders vacating lower-court decisions, in this case one that mandated that the Trump administration have enough employees in a Department of Education to fulfill the obligations imposed by law. As Justice Sotomayor wrote in dissent, the emergency order “hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.”
We do not need to know the thinking of the court’s majority to judge that it has failed the country.