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samual alito
The Supreme Court Justices Colluding With Trump to 'Catch and Kill' Insurrection Case
There’s a reason the right-wing justices are eager to support Trump’s senseless arguments on presidential immunity.
Apr 30, 2024
They fooled me completely.
When the U.S. Supreme Court agreed to hear Donald Trump’s presidential immunity defense, I, an experienced lawyer and devout follower of legal developments, believed that the court had only accepted the case in order to buy time for Trump.
I was sure the right-wing justices—having ensured that the election overthrow prosecution would not go to trial until after November—would ultimately reject Trump’s outlandish claim that a president can commit crimes with impunity.
Wrong. At the oral argument of the case, the conservatives quietly embraced the notion that a president could face no criminal penalties even for ordering the assassination of a political rival or directing the military to stage a coup. They were unfazed by an argument that our president needed to enjoy the immunity of a king although the Constitution says not one word about immunity. And, in a mind-numbing reversal of reality, Justice Alito argued that presidential immunity was required so presidents could “leave office peacefully” and to avoid a cycle of events that “destabilizes the functioning of our country as a democracy.”
How could a conservative majority, nominally dedicated to the rule of law, engage in such illogical contortions to evade the simple reality that Donald Trump is entitled to his day in court like everyone else, but is not entitled to special protection from the law?
Could the right-wing justices have failed to notice that the petitioner in this very case, Donald Trump, did not seek to “go off into peaceful retirement”? That instead he launched a vicious campaign of lies to reverse the election, based on election-fraud allegations found to be groundless in 60 cases?
Could they have forgotten that “the functioning of our country as a democracy” had in fact been “destabilized”—by the petitioner before their court, Donald Trump—when he wrongly persuaded tens of millions of followers that they had been cheated, and when the mob he had summoned to Washington invaded the Capitol to halt the peaceful transfer of power?
No one can seriously believe the actual events that brought the case before the Supreme Court matter less than Justice Alito’s upside down theory. No one can believe that granting immunity for the very crimes that had literally destabilized our functioning as a democracy could be the key to stabilizing American democracy and encouraging losing candidates to peacefully leave office.
In order to achieve these goals, they must maintain their right-wing majority for decades to come, even if that means accepting the threat of a fascist presidency under Donald Trump.
Why have the right-wing justices taken up such a laughable endeavor, embarrassing, really, if you consider how smart and well-educated they all are? How could a conservative majority, nominally dedicated to the rule of law, engage in such illogical contortions to evade the simple reality that Donald Trump is entitled to his day in court like everyone else, but is not entitled to special protection from the law?
The answer has nothing to do with constitutional law. The pretense was necessary because the Supreme Court’s conservative cabal sees reelecting Trump as critical to their long term mission, so critical that they are willing to turn the Supreme Court into a judicial version of the National Enquirer, “catching and killing” threats to Donald Trump’s interests regardless of what the Constitution says.
They are determined to do all they can to reelect Trump and save him from being convicted, not because they love him, but because they are determined to preserve their own continuing hegemony at the pinnacle of our legal system.
Conservatives have a solid six to three majority today. But Clarence Thomas is 75 years old and Samuel Alito is 74. Should ill health or death remove them in the next five years, a Democrat in the White House could create a liberal 5-4 majority, ending the conservative reign.
They are determined to do all they can to reelect Trump and save him from being convicted, not because they love him, but because they are determined to preserve their own continuing hegemony at the pinnacle of our legal system.
Right-wing justices have intervened before to boost their preferred candidate, with the evident purpose of ensuring a conservative Supreme Court majority for another generation. In the year 2000, with control of the White House turning on the cliff-hanger election in Florida, the Supreme Court stepped in and by a 5-4 vote ordered a recount to be halted while Republican George W. Bush was 537 votes ahead, delivering Florida and the presidency to Bush.
Not long after, Bush appointed two right-wing judges to the Supreme Court, John Roberts and Samuel Alito. Those two have been crucial to enacting the conservative judicial agenda. They were necessary to the 5-4and 6-3 conservative majorities in Citizens United, enshrining the role of money in American politics, District of Columbia v. Heller, which invented a personal right to own guns, Shelby County v. Holder, eviscerating the Voting Rights Act, and Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade.
The conservative judges are not through imposing their vision on America. They intend to continue legislating from the bench to constrict women’s rights, protect the prerogatives of the gun lobby, limit voting rights, shield the fossil fuel industry from accountability, and above all guard the wealth and power of corporations and the super-rich.
In order to achieve these goals, they must maintain their right-wing majority for decades to come, even if that means accepting the threat of a fascist presidency under Donald Trump.
They haven’t gotten there yet. Democracy can prevail in the coming election, and Trump may yet face jury verdicts on the full range of crimes with which he has been charged. But in their nonsensical efforts to help Trump escape judgment, the corrupt rightists of our Supreme Court have confirmed the need to end their suzerainty.
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Supreme Court Hears Case That Could Block a Billionaire Tax Before One Even Exists
The case before the U.S. Supreme Court, Moore vs. the United States, could increase federal debt by trillions of dollars by making it impossible to tax the rich for unrealized gains.
Dec 06, 2023
The U.S. Supreme Court heard oral arguments on Tuesday in Moore v. the United States, a case that could upend the tax system, raise the deficit by hundreds of billions of dollars, increase economic inequality, and prevent the enactment of a wealth tax on billionaires like Jeff Bezos or Elon Musk as proposed by Sen. Elizabeth Warren (D-Mass.), or in a modified form by Sen. Ron Wyden (D-Or.), and endorsed, at least in general principle, by President Joe Biden.
“This could have the biggest fiscal policy effects of any court decision in the modern era,” according to Matt Gardner, of the Institute on Taxation and Economic Policy (ITEP). Gardner's ITEP colleague Steve Wamhoff, wrote last week that Moore "could become the most important tax case of the century," warning that a "broad ruling could destabilize the tax system, enrich many profitable corporations and widen existing economic and racial inequalities.”
“Entire sections of the tax code are unconstitutional if this is unconstitutional,” Sen. Wyden said in a statement. “I can’t imagine the Supreme Court wants to give the wealthiest people on earth billions in tax cuts, particularly at a time when so many Americans are losing faith in the Supreme Court.”
Thanks for your optimism Sen. Wyden, but I can well imagine it. A case like this is the real reason billionaires like Harlan Crow and right-wing operatives like Leonard Leo have plied Justices like Clarence Thomas and Samuel Alito with lavish gifts. It’s not about saving the plaintiffs in this case less than $15,000 in taxes. It’s about potentially saving multi-billionaires like Jeff Bezos and Elon Musk tens of millions of dollars.
Indeed many Congress people have demanded that Alito recuse himself from the case after being interviewed by David B. Rifkin Jr., one of the lead attorneys for the Moore's, for Wall Street Journal articles published in which Alito argued that his lavish billionaire-funded gifts were just peachy.
Oral arguments do not always accurately predict how the Court will rule. But after listening to this week’s oral arguments, there seems at least a reasonable chance that the Court will issue a limited ruling on this case that does not necessarily set a precedent blocking in advance some kind of wealth tax or tax on unrealized capital gains. Some of the conservative Republican Justices like Brett Kavanaugh seemed to be searching for a middle ground that would not upset much of the existing tax code.
The case arises from Donald Trump’s 2017 tax “reform” which included a one-time “Mandatory Repatriation Tax” (“MRT”) on U.S. taxpayers’ retained earnings from their holdings in foreign corporations, to help fund Trump’s other tax cuts. Most of the estimated $338 billion in revenue from the MRT is payable by large corporations like Apple and Microsoft. But it also applies to individuals who own more than 10% of a foreign corporation.
Small investors Charles and Kathleen Moore had invested in an India-based company that could not be taxed in the U.S. but were charged $14,729 under the MRT. The Moores sued the U.S. government for a refund, claiming the MRT was unconstitutional because income must be “realized” before it can be taxed. Their suit was backed by right-wing legal organizations like the Koch’s Americans for Tax Reform and the U.S. Chamber of Commerce. If the Court finds the MRT unconstitutional, it could cost the U.S. government an estimated $338 billion in lost revenue, further increasing annual deficits and the nation's overall debt. Indeed experts estimate a sweeping ruling in the Moore's favor could cost the government trillions over the next decade.
The case is complicated and too much detail on tax law might put many readers to sleep. Suffice it to say that the issue dates back to the original 1789 Constitution which states that “direct taxes” must be “apportioned among the several states.” Historically, this was a sop to slave-owning states who could count slaves as 3/5 of a person when calculating how much money could be raised from each state. In the 19th century, The Supreme Court held that income taxes were unconstitutional unless equally apportioned among each state which was practically impossible.
In response, the 16th Amendment was enacted in 1909 providing that Congress may tax “income” from “whatever source derived.” The 16th Amendment did not define “income” or “source.” The attorneys for the Moore’s argue that money is not income until it is “realized”—i.e. the asset is sold, not just when it increases in value. A number of court decisions since passage of the 16th Amendment have undermined that theory. As one of plaintiffs’ lead lawyers, David Rifkin argued, “It’s a classic example of taxing something that is not income. Unrealized gains are not income by any stretch of the imagination.”
As Justice Sotomayor explained to the Moore’s attorney during oral arguments, “You're asking us to just announce what realization is out of context. And for the last hundred years, we've been studiously avoiding doing that because we recognize that it's dangerous to do that. To a word like "realization," we then have to come up with a working definition that applies to every piece of property and every way in which people gain wealth. It doesn't seem logical to me.”
Justice Jackson added a simple way for the Court to make a limited ruling upholding the MRT without addressing larger constitutional or philosophical questions: “The Court doesn't actually need to resolve any fundamental questions in this case about whether the Sixteenth Amendment requires realization. The MRT taxes income that was actually realized by the foreign corporations, and Congress permissibly attributed the tax on that realized income to U.S. shareholders just as it has done in any number of pass-through taxes throughout our nation's history. The Court could say only that and affirm.”
Justice Kavanaugh and perhaps Justice Barrett seemed sympathetic to a limited ruling. Perhaps Justice Jackson’s approach could command a voting majority, uphold the MRT, leave untouched prior Court rulings, and kick the can on a wealth tax and/or unrealized capital gains tax on the wealthy down the road.
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