What Good Is The Supreme Court?

Aren't Supreme Court justices supposed to be highly credentialed legal scholars--well, at least nowadays? Don't they have a small army of law clerks, all graduates of from the top tier of their class at the top law schools? And, in the case of Brett Kavanaugh, isn't every single one of those clerks the smartest female available for the job?

A top professor at Yale Law School who strongly endorsed supreme court nominee Brett Kavanaugh as a “mentor to women” privately told a group of law students last year that it was “not an accident” that Kavanaugh’s female law clerks all “looked like models” and would provide advice to students about their physical appearance if they wanted to work for him, the Guardian has learned.

Amy Chua, a Yale professor who wrote a bestselling book on parenting called Battle Hymn of the Tiger Mother, was known for instructing female law students who were preparing for interviews with Kavanaugh on ways they could dress to exude a “model-like” femininity to help them win a post in Kavanaugh’s chambers, according to sources.

And you wonder why going to Yale beats out other schools? When you have Amy Chua as adviser, the world's your oyster, if you look like a model.

But how is it that the SCOTUS, led by no less than the Chief Justice himself, came up with such an absurd ruling as the recent Department of Commerce v. New York case in which they decided that it was OK to engage in mind reading regarding an act that was perfectly legal? Shades of the Mueller/Weissmann obstruction theory! I'm very much inclined to agree with Joe DiGenova's explanation--that the case had nothing to do with the law and was simply about John Roberts wanting to poke a finger in Donald Trump's eye. Which says a lot about the passive-aggressive mindset of of men who have spent their entire lives single mindedly pursuing a sinecure in which you get to wear a black robe.

But, now come David B. Rivkin Jr. and Gilson B. Gray to explain that there's a perfectly good way for Trump to give Roberts the kick in the pants he deserves while simultaneously occupying the high ground of constitutional governance: How to Put Citizenship Back in the Census--The 14th Amendment gives the Trump administration the justification it needs.

Here's what the 14th Amendment says:

Amendment XIV

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

 Here's the short and sweet version, provided by Rivkin and Gray:

Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such . . . citizens shall bear to the whole number of . . . citizens . . . in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.

In other words, if the federal government is to be in a position to enforce the mandates of the 14th amendment then it must count how many citizens reside in each and every state of the Union. No ifs, ands, or buts about it. So here's the Rivkin/Gray advice to Trump:

The president should issue an executive order stating that, to comply with the requirements of Section 2 of the 14th Amendment, the citizenship question will be added to the 2020 census. In addition, he can order the Commerce Department to undertake, on an emergency basis, a new Census Act rulemaking.

That would trigger another round of litigation. Opponents would choose a federal district court likely to block it again, and the Justice Department would have to seek the Supreme Court’s intervention during its summer recess. While rare, such an emergency review has happened before. With the justification for the citizenship question being clear and compelling, the administration should prevail.

So why didn't all those supposedly smart lawyers at the Supreme Court figure this out?