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TAKE TRUMP’S PLAN TO JAIL THE SUPREME COURT’S CRITICS SERIOUSLY
 
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Jay Willis
October 1, 2024
The New Republic
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_ The right to criticize the powerful is a cornerstone of democracy.
In Trump’s America, it’s cause for a prison sentence. _

Then President Donald Trump with one of his hand-picked Supreme Court
nominees, Brett Kavanaugh, in 2018., Photo: Michael Reynolds/EPA-EFE
// CNN

 

While speaking at a campaign rally in Pennsylvania last week, Donald
Trump meandered his way into a riff on the issue that may well have
won him the 2016 election: control of the U.S. Supreme Court, to which
he appointed three justices during his four years in office. Vice
President Kamala Harris, Trump warned the audience, wants to expand
the court to up to 25 justices in order to “rig the system” for
the “party of Communists.” He lauded the current court, whose
four-year run of reactionary jurisprudence has earned the institution
some of its lowest-ever approval ratings
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as “very brave,” and expressed dismay that the justices “take a
lot of hits” for their displays of courage and/or unbridled
revanchism.

Along the way, Trump suggested an innovative path forward for
restoring the court’s tarnished reputation: Why not throw its
critics in prison indefinitely? “It should be illegal, what
happens—you have these guys playing the ref, like the great Bobby
Knight,” Trump said, invoking the longtime Indiana University
men’s basketball coach who was as famous for hurling chairs
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arguments with officials as he was for assaulting
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he deemed insufficiently deferential to his authority. “These people
should be put in jail, the way they talk about our judges and our
justices, trying to get them to sway their vote.” (In light of how
often Trump himself has criticized the Supreme Court for being
insufficiently deferential to his authority, I imagine that if elected
president, he would want to fine-tune this standard before allowing it
to take effect.)

There is, as they say, a lot going on here—even setting aside a
major-party presidential candidate pondering a First Amendment
exemption for speech that hurts Brett Kavanaugh’s feelings. For one
thing, like most Democratic politicians, Harris has not come out in
favor of Supreme Court expansion. Although she said
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was “open to” the idea of adding justices during the 2020 primary,
she has not gone further since. Her endorsement of expansion as the
Democratic nominee exists only in Donald Trump’s feverish
imagination, and now, presumably, in the heads of Trump devotees—for
whom there exists a strong correlation between how frightening the
things he says about Democrats are and how true they must therefore
be.

For another thing, the most commonly discussed Supreme Court
expansion proposal
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add four justices to the court; a few days after Trump’s
Pennsylvania rally, Oregon Senator Ron Wyden introduced a bill
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would add six justices over a 12-year period. None of this explains
how Trump arrived at a grand total of 25 justices, other than a vague
understanding that any number he throws out should be (1) odd and (2)
greater than nine. He’d floated something similar at a North
Carolina event several days earlier—“They didn’t like the number
13, so instead of going to 15, they went to 25,” he said
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way that revealed any useful clues about its origins. As ever, trying
to trace how the garbled bits of information that Trump absorbs evolve
into the words he says in public is like trying to play a game of
telephone with a hamster, and it is best not to spend too much time or
energy doing it.

In any event, the integers rattling around in Trump’s head are far
less important than his suggestion for dealing with the court’s
critics. (As _The Washington Post_’s Aaron Blake notes
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Trump has previously suggested imposing “very serious fines” on
those who’d dare speak their discouraging words aloud; perhaps he
decided it would be easier to remember one proposed sentence instead
of two.) Although Trump has long called
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the imprisonment of his political opponents, to date, he has done
so mostly
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response to circumstances that, if they had any basis in reality and
were not deranged conspiracy theories, might be expected to entail
legal consequences: local government officials
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ostensibly robbing him of the 2020 election, or Mark Zuckerberg
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possibly meddling in the 2024 election, or Liz Cheney
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purportedly destroying evidence that would exonerate Trump for his
role in January 6, and so on.

Trump’s more recent suggestion—pushing for the imprisonment of
people who exercise their right to criticize the government—is
several steps further, a somehow-even-more explicit embrace of the
authoritarian-curious inclinations that fuel his political movement.
He has never been interested in governing, in any meaningful sense:
His 2016 run is best understood as a bid to command the respect of
people who treated him as an unserious carnival barker, and his
reelection campaign in 2020 was motivated less by a desire to keep
being president than by his overwhelming desire not to be humiliated
in public.

That said, his particular obsession about the merits of locking up
more critics reveals a simpler, scarier goal for a second and final
term: exacting revenge on as many enemies as he can before the clock
runs out. It does not matter what they have done, or how unambiguously
the Constitution protects their right to do it; for Trump, winning the
White House confers a de facto license to punish whomever and however
he sees fit.

Monday is not the first time Trump has brought up the legacy of
Knight, who endorsed
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in 2016 and passed away last year, while defending judges for doing
things Trump likes. “Nobody did it better than the late, great Bobby
Knight,” Trump explained
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this month, regarding calls for the removal of Judge Aileen Cannon,
the alarmingly hackish
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appointee who dismissed his classified documents prosecution in
Florida. “He would scream at those refs and everything, and they’d
say, ‘Bobby, you’re not going to get the decision
overturned,’” Trump continued, before recounting Knight’s
response: “‘Yep, but the next one I will.’ And he was right.”

This more detailed version of Trump’s “playing the refs” analogy
is, however unintentionally, a pretty apt description of the role that
criticism of the court should play in a semi-functioning democracy.
Voters are, by and large, pretty alarmed
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the court’s lurch to the right, and by its contempt for the very
idea that justices should be subject to modest ethics rules. But
people who criticize the court are not expecting to shame the justices
into hastily overruling their last wildly out-of-touch decision, or
reimbursing a right-wing billionaire for the cost of a recent tropical
vacation.

People who criticize the court are trying to ensure that next time the
justices have to choose between furthering the conservative policy
agenda and taking seriously the rights of the millions of people whose
lives are subject to their decisions, they will feel the tiniest bit
of pressure to make a different call. To extend the analogy a little
further, if the outcry is loud enough—and if the current officials
keep blowing calls in spectacular fashion—perhaps the powers that be
will hire a couple of new officials who are less inclined to make up
the rules as they go along.

By virtue of its six-justice conservative supermajority, the court is
the Republican Party’s most important source of political power, and
unless Democrats really do embrace court expansion to the extent that
Trump imagines, it will likely remain so for a generation to come. To
the extent that criticizing the things the court is doing in the
meantime constitutes “playing the refs,” it is not illegitimate or
unseemly. It is simply a description of how trying to influence
powerful politicians has always worked.

_[JAY WILLIS is a writer and lawyer who covers courts, judges, and
politics. He is the editor-in-chief at Balls & Strikes, and his work
has appeared in The New York Times, The Atlantic, Slate, and
Defector, among others. @jaywillis [[link removed]] ]_

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