This is a tragedy for the U.S. federal judiciary. It is not unexpected. 2/

From the outset, we knew that certain justices were wholly and irrevocably in the tank for Trump. I put Robert’s very close to this camp but thought his desire to preserve his standing with federal district court judges and lower federal appellate judges *might* temper the fealty he displayed when he wrote the majority opinion in the ignominious Trump v. United States. 3/

Had Roberts more commitment to rule of law and less regard for Republican Fascism, he might have been able to peel off Gorsuch, Kavanaugh, Barrett occasionally and get them to vote with Sotomayor and Jackson and sometimes Kagan. But it is clear that he has no interest in this role and the other far right justices definitely don’t. 4/

I know that brave lower court judges will continue to write well-reasoned important memoranda in support of their correct and significant decisions. I will continue to commend their efforts and sometimes explain them. But for all their skill and integrity, they won’t be able to prevent the worst effect of the Supreme Court’s perfidy: plaintiffs’ lawyers will stop bringing cases they clearly will lose on appeal. 5/

The lawyers who represent the plaintiffs in the cases against the Trump regime do not have the funds or the staff to litigate every instance of the regime’s lawlessness. They also do not want to litigate cases that will only serve to give the Supreme Court the chance to hand down a lawless diktat as though it should be treated as precedent. 6/

So most plaintiffs’ lawyers will become ever more selective and careful in who they represent and the issues they put before the courts. This is natural and understandable. But it is also frightening. The actions of the U.S. Supreme Court play a direct role in sharply increasing the prospect of a hot civil war in the United States. 7/

Without meaningful recourse to a judiciary headed by a court committed to rule of law, law cannot well serve its central function in a pluralist constitutional democracy like the one the U.S. had become by the early 2000s. Law in such a society just is the alternative to violence as the mechanism for resolving very deep conflicts among people with incompatible conceptions of the good. 8/

Of course, at the bottom, the law in such a society cannot be itself independent of every conception of the good: it has to be committed to basic tenets of pluralist constitutional democracy: no perpetual power grab by one group; actual representativeness in voting; commitment to basic liberties for each and all; a refusal to accept executive dictatorship. We know that Trump and his cabinet and the Republicans in Congress do not care about this conception of the good. 9/

Now we also know that a solid majority of the current U.S. Supreme Court also rejects it, refuses to adjudicate with any fidelity to it. This isn’t the first time a U.S. Supreme Court has eschewed the very basis of American law. But today’s Court’s lack of commitment rivals the most horrid of those other occasions. And when the Supreme Court is so debased, it is very hard to restore pluralist constitutional democracy without dreadful violence. 10/

I say none of this lightly. I fervently hope for and work toward the restoration of pluralist constitutional democracy and rule of law without even more and worse violence than anything like what we are already seeing. But I am a realist, and I know that with the collapse of the Supreme Court as a meaningful judicial institution, the work is going to be that much harder. 11/11