From our friends down under at Justinian

 Fitch claims he is retiring.... I hope not. read the whole Fitch here.

Wither the Republic

Tuesday, August 5, 2025
Justinian in Donald Trump, Murdoch, Roger Fitch Esq, US Supreme Court, US politics

Twenty years of Roger Fitch ... He says this is his last column from Washington ... A brief history of American law and governance since Bush II ... The Roberts' court and reshaping the Constitution ... Hollowing out the Bill of Rights ... Murdoch's malign influence ... Shakedowns and bribes 

 

The American republic that followed the revolution is gone, overthrown, not by a subsequent revolution, but following an election, by the autogolpe of a fascist. 

 

History will record that the coup had the passive assistance of congress and the active support of a supreme court that, especially during its last two terms (here and here), exploited constitutional weaknesses, effectively abandoning the rule of law established by the Constitution and Bill of Rights.

The federal republic launched by North American colonies in 1789 lasted 236 years, more than any other modern republic. France, which began its initial republic about the same time, is in its Fifth Republic.

The American constitution was novel and superior, despite allowing the continuation of slavery in some states (slavery was at that time countenanced in many nations), and notwithstanding the fact that it was set-up by a non-representative group of white male property-owners.

There are many reasons the Americans' constitution eventually failed: the unplanned party system and bad faith of party members; the rude understanding of its basic tenets by the citizens; and ultimately, by indifferent or (as now) openly hostile supreme courts.

It's fitting that Roger Fitch has appeared in the pages of a legal journal like Justinian, as the decline of the US is closely associated with perverse actions of institutional lawyers. Under George Bush, they were incompetent (e.g, Alberto Gonzales), immoral (e.g, the Torture Memo lawyers) or simply unethical; under Donald Trump they are dedicated lawbreakers.

We've seen it before. This column began in August 2005, at the birth of the Roberts Court, with your columnist writing about the Australian David Hicks and Guantánamo, the illegal offshore detention camp set up by GW Bush in January 2002. 

Guantánamo was and remains a blot on the rule of law, with invented "enemy combatants" and kangaroo military commissions for prosecuting civilian terrorists and, sometimes, lawful belligerents. It prefigured Trump's due process-free migrant detention at Guantánamo and abroad, and officially-sanctioned torture, now outsourced to foreign despots like El Salvador's Nayib Bukele.

Bukele: running Trump's offshore prison

In August of 2005, the supreme court's chosen president, George Bush, had recently obtained a second term in an election he actually won. The supreme court's "swing vote" in decisions, the Reagan-appointed Sandra Day O'Connor, had announced her retirement. O'Connor had been one of two members of the Bush v Gore majority with no ethical conflict, and was the only one of the five majority justices to regret, if not repent, that case.

The present chief justice, John Roberts (then a DC Circuit judge) was being considered for O'Connor's position, and then, when CJ William Rehnquist died, for chief justice. Cynics said he auditioned for appointment through his role in a pending DC Circuit case, one of two Guantánamo Cases of utmost concern to the Bush administration, treating, as they did, the legality of Bush's Guantánamo scheme to imprison newly-invented "enemy combatants" in his figurative "war on terror", men apprehended, not just in Afghanistan, but as far away as the Gambia, and Bosnia, where "combatants" were abducted by the US despite rulings by that country's highest courts. 

Helpfully, Roberts ruled against habeas.

When Roger Fitch took up his pen 20 years ago this month, early in the second Bush administration, he thought the republic had already been fatally injured by the judicial coup of December 12, 2000, the supreme court's unprecedented and partisan intervention on specious grounds in a presidential election in order to install a mediocrity as president, apparently based on the brand he was wearing. 

With that president's appointments to the court, a new majority faction of conservatives coalesced with a  mission to reshape the constitution. It depended largely on altering the precedents previously established by justices of every hue, and entailed constitutional alterations that hollowed-out and subverted some of the most important protections of the Bill of Rights. 

Roberts CJ: Trump's man

Over time, the Roberts Court converted those amendments into tools and playthings of corporations, religious zealots, gun fanatics, and other corporate or religiously-badged special interests. 

The winners have been mostly conservative groups allied with and depending upon the venality of Republicans, whose election successes and fund-raising have been turbocharged, respectively, by the court's Shelby County and Citizens United decisions. The final blow: the Rucho decision greenlighting partisan gerrymanders.

The Republicans used to be the party of the establishment and upper-crust, their voices heard in the pages of the Wall Street Journal, a party that included liberal and independent voices. Sadly, after Eisenhower, and under Richard Nixon's cynical Southern Strategy, the "Grand Old Party" was taken over by special interests who had not previously played the leading role.

It was the time when the old class system in the US began to crumble under the assault of television and popular culture, when the nouveaux riche arrived on the partisan scene, when the polemicist William F Buckley and subversive economist Milton Friedman introduced a new and edgier conservatism where corporations and (conservative) Catholics began to more openly ally with monopolists and the previous untouchables: evangelicals, and the dregs of white southern segregationists. 

The finishing touches to today's Republican party were provided by the malignant influence of Australian blow-in Rupert Murdoch and his fanatical rightwing News Corp, which now owns the Wall Street Journal. 

Murdoch: fanatical

Many of the party participants in the December 2000 Putsch are still around, including two of the Bush v Gore rogue justices (Anthony Kennedy and Clarence Thomas), the present chief justice, John Roberts, and two Republican lawyers who have since joined the court, appointed by Donald Trump.

2000 also entrenched the Republican Party in the rising sunbelt states of Florida and Texas, with the results we have seen, both nationally and in other ex-Confederate states.

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In 2025, the US may have the trappings of a government, but Trump's administration is a giant protection racket, a MAGA mafia presided over by the Capo and chief gangster, the convicted fraudster and felon Donald Trump, supported by a supine congress and neo-fascist popular movement. Cruelty, greed and revenge are the ruling passions of this corrupt, illegitimate regime.

Trump's shakedowns are working. Large "settlements" have been extorted in claims with no legal basis (e.g, foreign tariffs, Big Law threats and media intimidation), and Trump's crude ransom demands are being met by universities (e.g, Columbia and Harvard).

Trump and his Project 2025 minders still have a to-do list, involving destruction of various parts of the US constitution, most notably the separation of powers, by usurping the powers of congress and the judiciary. 

Trump is meanwhile flouting the First, Fourth, Fifth, Sixth and Eighth Amendments, ignoring Article I's prohibition against bills of attainder, and emasculating civil rights in general.

Roger Fitch bids farewell to all that.