The problem with appeasement as a strategy for dealing with overbearing types is self-evident: They take a mile for every inch you give them.
In that way, appeasement’s doomed a priori. The people on whom it’s most likely to be tried are also the people most likely to abuse and exploit any leeway they’re granted.
That’s the self-referential appeasement paradox: The individuals who need appeasing are, by their very nature, the least likely to be appeased.
Everyone knows that, of course. So, when appeasement’s tried as a strategy, it’s everywhere and always a gambit to buy (peace for our) time on the implicit notion we can wait out the problem, whatever it is.
The problem’s usually a person, and the person’s usually not that stupid, though. They know everyone’s playing for time. Maybe they can be placated for a spell, but they’re aware the clock’s ticking. They’ll seize the rest of Czechoslovakia sooner or later. Probably sooner.
Since January, John Roberts’s Supreme Court has pursued an appeasement strategy vis-à-vis Donald Trump. The Justices have no means of physically enforcing their rulings on an autocratic US executive. Better then to rule for Trump — or at least avoid ruling against him — than risk being exposed as a toothless paper tiger when he invariably defies a high court order.
The bet’s simple: If the Court can make it to 2028 without a highly visible (note the emphasis) instance of Trump openly defying a SCOTUS majority and persisting in that defiance such that no one can ignore the inherent Constitutional crisis, that’s preferable to a standoff. Because a standoff with the commander-in-chief of the army’s a losing proposition for a nine-person panel of unarmed jurists.
Not surprisingly, that strategy’s backfiring for Roberts. And for the same reason all historical examples of appeasement backfire. Trump sees weakness in the Court’s reticence, and in that weakness a green light to run roughshod over the judiciary. The Court’s thus confronted with the appeasement paradox: In trying to avoid a confrontation they’ve made one inevitable.
Earlier this year, the Court signaled to Trump a willingness to countenance the at-will dismissal of independent agency heads, which is to say Humphrey’s Executor‘s all but dead. But they attempted to carve out an exception for the Fed using what I described at the time as “torturous” logic. That was a recipe for disaster, particularly given Trump’s plain-as-day inclinations to commandeer US monetary policy.
The job of an attorney (any attorney) is to poke holes in bad logic. The logic around the Court’s Fed exception wasn’t just bad, it was laughably, and perhaps deliberately, derelict. Specifically, the Court said in May that the Fed’s “a uniquely structured, quasi-private entity.” That unofficial protection — if you can call it that — is all that stands between Trump and the Fed Board at the end of the day.
Lisa Cook’s going to sue to keep her Fed governor job after Trump fired her from the Board on Monday evening. Her lawyer says Trump’s actions “lack any factual or legal basis.” In all likelihood, the case will end up before the Supreme Court, where the conservative super-majority will have its own mostly indefensible logic challenged by the Trump administration.
My guess is that at least two Justices — Samuel Alito and Clarence Thomas — can’t wait. They know the Fed carveout can’t stand up to scrutiny, and will likely be happy to reconsider it.
Elena Kagan anticipated this. In her May dissent, she wrote that,
Today’s order poses a puzzle. For the Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC and so on — which is to say it rests largely on Humphrey’s. So the majority has to offer a different story: The Federal Reserve, it submits, is a “uniquely structured” entity with a “distinct historical tradition” — and it cites for that proposition footnote 8 of this Court’s opinion in Seila Law. But — sorry — footnote 8 provides no support.
Her point wasn’t lost on the Court’s conservative majority. Far from it.
It’s an open question whether the conservative Justices were i) genuinely trying to protect the Fed while granting Trump latitude to fire other independent agency officials or ii) setting the Fed up by cynically penning a carveout riddled with more holes than Swiss cheese.
The answer’s largely irrelevant, though. Because either way, that carveout’s about to undergo a trial by fire. Cook’s lawsuit will almost surely end up before the Court, and Trump will challenge it by questioning the merits of the Fed exception.
In the same dissent, Kagan chided her conservative colleagues. “One way of making new law on the emergency docket… turns out to require yet another,” she said, referring to the convoluted process by which the Court had to “creat[e] a bespoke Federal Reserve exception” in order to (de facto) overturn Humphrey’s on an interim basis.
Undoubtedly the best part of her dissent found Kagan lampooning the ad hoc character of the Fed carveout. “The majority closes today’s order by stating, out of the blue, that it has no bearing on ‘the constitutionality of for-cause removal protections’ for members of the Federal Reserve Board,” she wrote. “I am glad to hear it, and do not doubt the majority’s intention to avoid imperiling the Fed.” That latter bit was dripping with sarcasm.
In a Tuesday statement, the Fed emphasized that governors “may be removed by the president only ‘for cause.'” “Long tenures and removal protections for governors serve as a vital safeguard, ensuring that monetary policy decisions are based on data, economic analysis and the long-term interests of the American people,” a spokesperson said.
During a televised cabinet meeting, Trump boasted, of his efforts to grab hold of the Fed Board, “We’ll have a majority very shortly. So that’ll be great.”
This whole charade by the Supreme Court (and most voters in general) reminds me of the time Lisa ruins Homer’s BBQ by destroying the hog roast:
“It’s just a little dirty – it’s still good, it’s still good.”
“It’s just a little slimy – it’s still good, it’s still good.”
“It’s just a little airborne – it’s still good, it’s still good.”
Bart: “It’s gone.”
Homer: “I know.”
As someone with dual citizenship who has seen the absolute savageness of a cartel state in Mexico (heads on fence pikes in front of a police station) America has never been a country, but an idea. The Constitution (remember that thing?) has been a steadfast line in the sand that no matter what the politics of that year constituted at least gave you a fail-safe to never feeling that you made a bad choice, or in so many other family’s eyes, a sacrifice. I’ve never been this vocal here before, but I genuinely cannot fathom how so many people stand by and just let the day ‘go by’ as if this truly was business as usual. I want to close with a story and a sentiment. Back in 2019 my friend and I were walking to a bar down a street in my upscale neighborhood that I’ve walked dozens of times. I’m a Mexican national and he’s half Mexican on his father’s side. We’re both out of character for being Mexican because of our obvious Spanish heritage at other points in time. A group of youthful and loud MAGA individuals (red hats, country club attire and a general sly smile of condemnation) stood on the sidewalk where we were trying to walk past. They looked at us, we looked at them. A decision was made because what’s it worth to even feel the eyes of people who were going to say something as we walked through them. We crossed the street to go around. We gave up our rights in what’s supposed to be a ‘free’ country. My friend and I should never have had to have felt what we did that day. I’ve told this story to international friends and there’s never anger, just sadness. The sentiment is that while I assuredly know that I’m well versed in American history more than the average ‘true Natives’ and that I can easily and profoundly say I am fluent in English, I do not feel a sense of pure ambiguity as an individual because of the ICE raids and other stories I’ve seen/heard on multiple platforms. This is not what America was and is supposed to be. Period.
It appears that a majority of Americans don’t know what it means to stand up for democracy as defined by the constitution. They can’t envision anything beyond dropping bombs on faraway places. The spirit of 1776 was lost in the rearview mirror a long time ago. We’re way too involved with Amazon and Netflix, mea culpa.
Find me those votes !!!!!
I recently finished watching “M il figlio dil secolo” (M the son of the century) a wonderful production by Sky TV in collaboration with various Italian production houses, it tells the story of the rise of Mussolini and Fascism in Italy up to 1925, it is based on the first book of a fantastic 5 book series by Antonio Scurati. The number of parallelisms to what is happening in the US is unnerving, most of all the fact that Mussolini obtained power without ever having actual majority support from the Italian people/electorate, Mr. Benito achieved this feat mainly because the institutions and people with political influence turned a blind eye out of fear or convenience to the clear autocratic moves that Mussolini made as he increased his grip on power. Now this is what I find most revealing, the series is a critical success, won acclamation from critics and audiences in Europe (well deserved in my opinion) but Sky TV will not shoot the rest of the story because they were unable to obtain US distribution. For a show of this magnitude and cost a US deal is key in order to continue shooting, but according to producers of the show the streaming companies and TV execs in the US all had the same response: we love the show, it is compelling and superbly made, but too controversial for US audiences. Yes, US media companies self censoring because in Trump’s America history has become too controversial and risky…
Late stage capitalism eats its own tail it seems.
Published in the ABA journal yesterday:
partial dissent last week by U.S. Supreme Court Justice Ketanji Brown Jackson is attracting attention for her reference to a game that made a recurring appearance in the comic strip Calvin and Hobbes.
The game was Calvinball, which had only one rule—that the rules can never be the same twice, Above the Law explains. Judicial Notice also mentioned Jackson’s Aug. 21 opinion, which criticized the majority’s order allowing the National Institutes of Health to end $783 million in grants for research related to diversity objectives, gender identity and COVID-19.
“This is Calvinball jurisprudence with a twist,” Jackson wrote. “Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this administration always wins.”
Original link: https://www.abajournal.com/news/article/justice-jackson-accuses-supreme-court-majority-of-playing-calvinball
The best commentary out there today. We should all pray for the Supremes to get a spine.