A Gorilla on an Airplane Has Thoughts
When I was in high school, I had to read and summarize Michael Crichton’s 1980 novel “Congo.” I don’t remember why — Crichton did not, strictly speaking, fit into any of the categories of literature we usually got assigned. Anyway, I don’t remember much about the book, but there was this super intelligent gorilla named Amy who became part of a research team looking for a particular type of diamond in a lost city within the Congo. At one point in the story, the research team has to board a plane, and instead of putting Amy in a crate in the cargo bay — which just seems like sensible operational security for a gorilla — they let her sit in the passenger area. Amy gets a little agitated as the plane is taking off, but calms down once she realizes the humans around her aren’t concerned. That’s a roundabout way of saying that when it comes to Supreme Court decisions, I’m basically a gorilla on an airplane: I may not understand the intricacies of what’s happening, but if the people I trust aren’t panicking, I see no reason why my dumb brain would know better than they do.
When the Supreme Court last week issued a ruling that effectively stripped district judges of the ability to grant universal or nationwide injunctions, there was a fair amount of panicking, particularly among those to my left. There was a viral video going around with a guy wide-eyed, ranting about how we now live in a dictatorship because Trump can now just issue unconstitutional orders about whatever he wants and the courts will never be able to catch up. And I just…don’t believe that’s the case at all, and anyone who claims as much is either ill-informed or being dishonest. Justice Sonia Sotomayor, an Obama appointee and one of the Court’s so-called “liberal” Justices, had a more reasoned take in her dissent, saying in part: “absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”
I understand the concern. This decision was based on Donald Trump’s effort to end birthright citizenship — a pretty plainly-worded concept within the 14th amendment of the U.S. Constitution — simply by Executive Order. Pretty much everyone this side of Stephen Miller agrees that the E.O. is brazenly unconstitutional, and three U.S. District Judges issued nationwide injunctions of the order, thereby preventing the Trump administration from enacting it anywhere in the country. The Trump administration appealed the injunctions, claiming that U.S. District Judges lack the authority to issue nationwide rulings.
The Supreme Court agreed, which shouldn’t be that controversial in the abstract. As one Supreme Court Justice put it, “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.” That, of course, was Justice Elena Kagan, complaining in 2022 about nationwide injunctions that were stifling various Biden administration policies, like vaccine mandates, student loan forgiveness, laxer immigration policies, etc.
Universal injunctions have become a point of contention in recent years, particularly because Donald Trump has been the recipient [if that’s the right word] of exponentially more of them than his contemporaries. According to a count by the Harvard Law Review, in the eight years of the Bush administration, they were subject to a total of six nationwide injunctions. The Obama administration faced 12, also in eight years. Biden was a little more, uh, ambitious, and was on the receiving end of 14 injunctions in his first three years [which the count covered], putting him on pace for 19 in four years. [I can’t find a count for Biden’s entire term.] Trump, meanwhile, was subject to a staggering 64 injunctions during his first term, and another 25 just in the first 100 days of his second term. I’m perfectly willing to grant that Donald Trump deserves all of these injunctions, because he has repeatedly proven himself to be disdainful of the Constitution and the law generally. It’s not far-fetched to me that Trump would be more than 20 times as lawless as George W. Bush, more than 10 times as lawless as Barack Obama, and about three times as lawless as Joe Biden. Trump and his supporters like to claim that he’s subject to so many injunctions because the judiciary just hates him so much, but it might have something to do with the fact that he just does way more illegal stuff than previous presidents, y’know?
I think that also partially explains why we got this ruling when we did. Universal injunctions have been sort of legally dubious throughout their existence, but until Trump came along, every other president generally had the humility to, y’know, stop breaking the law when called on it. Trump is the first president to effectively say “one district judge can’t exercise jurisdiction over the entire country, even if what I’m doing clearly violates federal law.” And the Supreme Court was forced to agree, because it’s pretty clear in the relevant statutes that such judges are limited to their districts. [I’d be curious to hear Justice Kagan’s reasoning for why she was sympathetic to that argument in 2022 but did not sign onto it in 2025.]
But a couple of things to remember: 1. No one expects Trump’s birthright citizenship executive order to ever take effect, because 2. the Supreme Court didn’t say there can’t be actions taken against unconstitutional administration efforts, just that a single district judge can’t issue them. As has been explained to me — again, a gorilla on an airplane — the most effective [and, more importantly, legal] way to prevent an administration from enacting illegal or unconstitutional orders is through the so-called “set aside” provision in the Administrative Procedure Act [APA], which says that a “reviewing court shall […] hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] without observance of procedure required by law.”
So in this particular case, should the Trump administration order, say, the Department of Homeland Security [which controls the agency tasked with issuing certificates of citizenship] to stop issuing citizenship to babies born within the United States and “subject to the jurisdiction thereof” — which applies to virtually everyone other than foreign diplomats or members of foreign militaries — a federal judge could deem that action unconstitutional and it would be universally vacated. Seems perfectly reasonable to me, even if it’s not the emotionally satisfying route of having a judge simply seem an Executive Order illegal.
But contrary to the caricatures of us anti-Trump conservatives, at least some of us still believe in the law qua law, and so I’m open to the idea that the response to a president repeatedly abusing his authority should not be for District Court Judges to abuse their authority. It’s a A Man for All Seasons sort of situation: even if Trump were the devil himself [and I’m open to persuasion!] he would have the benefit of the law, for our own sake.
By the Numbers
Another annoying byproduct of this decision was that it provided liberal partisans with another opportunity to bash the Supreme Court as a hack entity, just providing Donald Trump with 6-3 wins at his command. This is…simply not the case. Every year, SCOTUSblog [a non-partisan group of journalists covering the Supreme Court, acquired by the Dispatch earlier this year] releases what they call the “Stat Pack,” which lays out the various trends for the cases decided by the Court that term.
For this term, 42% of cases were unanimous. A mere nine percent were “ideologically split,” meaning a 6-3 decision with only Kagan, Sotomayor, and Brown-Jackson in the minority. If you include 5-4 decisions, Kagan, Sotomayor, and Brown-Jackson were together in the minority only 15% of the time. Interestingly, a similar number of cases were 6-3 with the three most conservative members alone in the minority [Thomas, Alito, and Gorsuch], so I consider that basically a wash. Also, some 28% of cases had dissents made up of only conservative Justices, which means it was almost twice as likely for there to be a conservative-only dissent as opposed to a liberal-only dissent. Notably, Justice Kagan was more likely to be in the majority this term than either Thomas, Gorsuch, or Alito. And Ketanji Brown-Jackson, arguably the Court’s most leftwing Justice, was nevertheless in the majority in 72% of cases. Hell, Brown-Jackson is on the same side as Alito and Thomas [the two most conservative Justices] more than half the time. She sided with Roberts 71% of the time, Coney-Barret 68%, Kavanaugh 65%, and Gorsuch 59%.
So not only is the Court not a shamelessly partisan organization just cranking out 6-3 decisions based on the president who nominated them, it’s not even an especially ideological organization if every Justice, regardless of philosophy, is in the majority in a supermajority of cases.
All that to say, if you ever see anyone lambasting the Supreme Court for being hack rightwingers who just do whatever Donald Trump tells them, you can be pretty confident that such a person doesn’t actually follow Court decisions, and/or is intentionally misleading you. Because the actual numbers don’t bear out such accusations at all.
These numbers lend credence, once again, to the idea laid out by Sarah Isgur of the Dispatch that says the Court isn’t really made up of six Republican appointees and three Democrat appointees [though it is on paper], it’s more like three conservatives [Thomas, Alito, and Gorshuch], three liberals [Kagan, Sotomayor, and Brown-Jackson], and three institutionalists [Roberts, Kavanaugh, and Coney-Barrett]. And they all sort of mix-and-match with each other, depending on the facts of a particular case. I think it’s a pretty effective setup for the Court, honestly. With the exception of the immunity case, I have a hard time coming up with a case from this Court that I think was simply wrongly decided. [Which I’m sure means a lot, coming from a gorilla on an airplane.]
What’s that Smell?
Donald Trump announced earlier this week that he was releasing a line of fragrances:
I feel like I’ve beaten this horse into a fine paste at this point, but I just don’t understand how Trump’s voters aren’t embarrassed by this sort of thing. I mean, even beyond the ethical concerns of a president making money off of the office, the way he does it is just so goddam tacky. Cryptocurrency, gaudy sneakers, low-rent cell phones, and now cheap cologne and perfume. The idea of Donald Trump as a prodigious businessman was always a myth — he’s more of a late night infomercial type, trying to convince gullible rubes to buy whatever he slaps his name onto. And to be fair, it kinda works! There are apparently enough such gullible rubes willing to buy anything with his name on it that it’s worth the effort.
Sunshine Patriots, Cont.’d
This is going to be my only edition this week, since the 4th falls on Friday. So I thought I’d make this a bit of an “extended version” with a riff about the 4th of July.
I wrote something in 2020 that captured my feelings about patriotism during what is an inarguably unpleasant time in our country. I still stand by it — especially since conditions haven’t exactly improved in the meantime, y’know? — but I feel like it’s more of a struggle these days. Maybe it’s just me, I dunno.
But I keep coming back to this thing I’ve heard a fair amount recently: “You can’t claim to love America when you hate half of the people who live there.” Normally that’s leveled at Trump supporters, known for their flag-waving but simultaneously angry about the existence of a wide swath of Americans, e.g., non-heterosexuals, the transgendered, immigrants, non-whites who bring up the historical mistreatment of non-whites, non-Christians, women with hard opinions, medical researchers, government workers, liberals generally, etc. [That’s not to say that every Trump supporter is angry about every such category, but I’m not aware of any Trump supporter who isn’t angry about at least one of ‘em.]
And it’s a fair criticism. You can’t credibly claim to love America now if you’re mad about all the changes from whatever time you think America was last ideal. [Which is why the idea of “Make America Great Again” always rubbed me the wrong way. Are you saying that America isn’t “great” now? And when is this time you would like to return to when America was last “great”?] But what if we turned that formulation on ourselves? Can we claim to love America if we hate 49% of its voters? To be fair, I think hate is a strong word, at least for me. But I’ll cop to having contempt, or even disdain, for the sort of people who should know better and chose this sort of governance anyway.
I’ve never been one to think we should base our love for our country on who happens to occupy the White House at any given time — not least because in all of my voting life, my preferred candidate has won the presidency precisely once. If loving America was contingent on “my guy” winning, I might as well turn Soviet.
America is more than its government. It’s perfectly reasonable to not be proud of every action of your government and still be proud of the country. During my life, presidents and their administrations have done many things I did not support and by which was varying levels of embarrassed. But it’s a new sensation to believe that the actions of the president and most of his administration are affirmatively hostile to American values, and then to also see a great many of my countrymen cheering it on. America is more than its government, sure, but is it more than its people? Well, it’s going to have to be.
To me it sort of feels like if you and a group of strangers spent a lot of time building a huge sandcastle on the beach, and then some schmuck in a red hat came around with a crew of ne’er-do-wells and stomped all over it because he knew how to really build a sandcastle. And then you look around, assuming most everyone is as offended by what you’re seeing, and it turns out that most of your family and a lot of people you went to school with are nodding and clapping along to the red-hatted schmuck and his crew — and not only that, they think you’re the asshole for not getting on board.
I feel like I write about it sort of a lot, and it feels hackneyed and cliche because “writer boy has a bone to pick with the culture he comes from because he feels betrayed and excluded” is such a worn-out formula. But I guess I’m still processing a lot of the stuff I’ve seen from the last decade or so, and it still sticks in my craw how a great many of the people who I thought knew better and who I thought took their citizenship seriously turned out to be…I dunno, just kinda gross.
I’m not one of those people who thinks Christian beliefs necessitates voting Democrat, but I do think it precludes supporting the sort of mean-spirited, gleeful cruelty we’ve been seeing from Trump and his administration, particularly in recent months. Which is to say, I don’t think Jesus would demand voting for Bernie Sanders, but I do think he’d take issue with masked and badge-less federal agents scooping people off the street and shipping them to foreign prisons for pretty minor legal infractions. And I don’t imagine he would appreciate people who claim to be his followers applauding that sort of thing, y’know? He flipped tables over less, as I understand it.
Patriotism has always been a complex concept, unlike it’s evil twin Nationalism. Nationalism is easy: “My country, right or wrong; and if you don’t like it you can get out!” Any idiot can be a nationalist, and many are. Patriotism takes more consideration, especially in a place like America that lacks the sort of blood-and-soil history that drives most nationalist movements. As F. Scott Fitzgerald put it: “France was a land, England was a people, but America, having about it still that quality of the idea, was harder to utter — […] It was a willingness of the heart.” And because America is mostly an idea, perhaps patriotism for it is easier to maintain.
I’ll close with something else I wrote, earlier this year, a month into Trump’s second term:
I know we’re not supposed to impugn the patriotism of others — there was a time when that was possibly the most offensive insult you could levy on someone — but I think we’re past that. Donald Trump’s vision of and for America is at odds with what America is supposed to be — the American idea. If being American requires a certain “willingness of the heart,” and these people have, biblically speaking, “hearts too hardened” for such willingness, how could they possibly meet the definition?
Over the last several weeks, I’ve heard more people than usual, and many people who should know better, saying things like they’re “ashamed” of America. I say nuts to that. America is still rad. Is it embarrassing that our representative on the world stage right now is a wicked, remorseless asshole [there’s that phrase again]? Sure. Is it embarrassing that roughly half of the electorate chose this of their own free will? Sure. But they are failing America; America is not failing.
That’s why I have a difficult time, I think, “losing faith” in America. Even if 49.8% of its electorate [to varying degrees, sure] is failing to live up to the ideals of America, that is not an indication that such ideals do not exist. Such ideals exist regardless of how many of our countrymen, including the president, fail to meet them.
There’s no Sunshine Patriots here. It might be raining like hell, but someone has to keep that flag planted.
Occasional Trivia
Answer from last time:
Category: Colleges and Universities
Clue: Team nicknames of the eight Ivy League schools include four animals, three colors, this Christian denomination.
Quakers [of the University of Pennsylvania]
Today’s clue:
Category: Biblical Places
Clue: According to the book of Genesis, Noah’s ark came to rest “in the seventh month, on the seventeenth day of the month, upon the mountains of” this place.
Dispatches from the Homefront
My wife was taking the kids to the library yesterday, and asked them what kind of books they wanted to get.
Older Daughter: I want to get a Pokémon book because Pikachu is my favorite color.
Younger Daughter: Yeah, he’s lello.
OD: Yellow.
YD: That’s what I said. Lello.
OD: Yellow. With a Y. Yuh-yuh-yellow.
YD: Lello.
OD: Yellow.
YD: LELLO.
OD: YELLOW.
YD: [Confused stare]
I’ve been told that kids tend to develop either physically or linguistically at first, and then make up the gap as they get older. Apparently we got one of each. Because our older daughter is as articulate as you can imagine, but she still gets pushed around by her little sister who wears the same size pants. [Which is a dynamic I am familiar with.]