by Professor Emeritus Nimal Gunatilleke,
University of Peradeniya

Jurisprudence, as a layman like myself would understand, refers to the knowledge of the law – the norms and rules that govern our lives. In legal parlance, it is defined as the branch of philosophy concerned with the law and the principles that guide the judiciary to make the decisions it does.

Earth Jurisprudence

Earth Jurisprudence is an emerging branch of legal philosophy that critiques law from an Earth-centred perspective and proposes new approaches to law, economics, and governance. It perceives human beings only as a part of the wider Earth Community and was developed as a response to the present environmental crisis. Earth Jurisprudence has drawn its knowledge base from different disciplines of studies, like basic sciences, earth science, and Common Law jurisprudence.

In a sense, Earth Jurisprudence represents an all-embracing ecological theory of law. It was first proposed in 2001 by the cultural historian and poet Thomas Berry, who is considered the ‘father of Earth Jurisprudence’. He held the view that ‘we must understand that our own well-being can be achieved only through the well-being of the entire natural world around us’. Thomas Berry proposed that society’s laws should derive from the laws of nature (Great Laws), explaining that ‘the universe is a communion of subjects, not a collection of objects to be owned and used or misused’.

The rationale of Earth Jurisprudence is rooted in the philosophy of “Deep Ecology” in which all living beings have a moral and ethical claim, regardless of their utility value to humanity. For most of human history, human societies across our planet have seen life from an Earth-centred, rather than a human-centred, perspective. This is evident among indigenous and traditional communities who continue to derive their ethics, customary laws, and governance systems from the laws of Mother Earth or Natural Laws.

It is becoming patently clear that the prevailing human laws should be consistent with, and therefore, need to be realigned with the laws of Mother Earth if we are to live in harmony on our home planet well within its planetary boundaries. The starting point is the recognition that the laws of the Earth are primary. They govern life on the planet and human laws should be derived from these.

This is clear for Indigenous peoples whose languages, customary laws, and governance systems are rooted in the understanding that nature regulates the order of living processes in which humans are inextricably embedded. Thus, to maintain health and well-being for people and the planet, humans need to comply with the dynamics of nature. For indigenous peoples, the relationship between land and species is regarded as sacred and involves reciprocity.

Many of the world’s religious and spiritual traditions offer insights consistent with a nature’s rights worldview. Eastern religious and philosophical traditions embrace a holistic conception of spirituality that includes the Earth. It was Arahath Mahinda, the son of the Emperor of India, over two thousand years ago, who said to King Devanampiya Tissa, at Mihintale, “O’ great king, the beasts that roam the forest and birds that fly the skies have the same right to this land as you. The land belongs to the people and to all other living things, and you are not its owner but only its guardian.”

Earth Jurisprudence calls on us to recognize that Nature is and should be, the source of human laws, ethics, and how we govern ourselves. Earth Jurisprudence calls for us to transform the currently held human-centred (anthropocentric) perspectives to Earth-centred (eco-centric) perceptions of our place on Earth and how we should conduct our lives.

Earth Jurisprudence has been increasingly recognized and promoted worldwide by legal scholars, the United Nations, lawmakers, philosophers, ecological economists, and other experts as a foundation for Earth-centred governance, including laws and economic systems that protect the fundamental rights of nature. Therefore, the primary purpose of legal and governance systems must be to ensure that people protect and contribute to the integrity, health, and well-being of the entire Earth Community. Earth Jurisprudence can be described as a crucial alternative concept of law and governance for sustainability.

Rights of Nature

A novel approach to environmental protection has emerged in the law, known as the ‘Rights of Nature’ (RoN). The rights of nature, or Earth rights, is a legal and jurisprudential theory that describes inherent rights as associated with ecosystems and species, akin to the concept of fundamental human rights. The rights of nature concept challenges that the 20th-century laws are generally grounded in a flawed frame of nature as a ‘resource’ to be owned, exploited, and degraded.

In this currently dominant legal approach world over, only human beings and some of their artificial creations, including corporations, are ‘legal persons’ with rights, while other organisms and nature are objects to be owned or consumed.

In contrast, the RoN crusade considers all beings, organic and inorganic—including organisms, species, ecosystems, land, air, water, and Earth itself—to be members of a planetary community. These beings are in relationships of interdependence with one another. They all have rights, and responsibilities, in their own ways. RoN laws recog nize a variety of non-human entities as holders of rights, from animals to rivers to ecosystems to the entire planet. Different species or parts of nature, all will have different rights, i.e. rivers have river rights, birds have bird rights, and humans have human rights.

Rights of Nature proponents argue that nature is a legal subject possessing inherent rights-based laws grounded in the rights of nature that direct humanity to act appropriately and, in a way, consistent with modern, system-based science, which demonstrates that humans and the natural world are fundamentally interconnected. The Rights of Nature ideology takes the view that human beings need to stop treating nature as objects or property and accordingly change their perception of nature.

This school of thought is underpinned by two basic lines of reasoning. First, since the recognition of human rights is based in part on the philosophical belief that those rights emanate from humanity’s own existence, logically, so too do inherent rights of the natural world arise from the natural world’s own existence. A second and more pragmatic argument asserts that the survival of humans depends on healthy ecosystems, and so protection of nature’s rights, in turn, advances human rights and well-being.

From a rights of nature perspective, most environmental laws of the 20th century are based on an outmoded framework that considers nature to be composed of separate and independent parts, rather than components of a larger whole. The increasing importance of this new way of thinking, situated at the intersection of environmental law and ethics, is directly influenced by growing concerns about the climate and biodiversity crises that we experience today.

For example, the Gaia hypothesis, named after the ancient Greek goddess of Earth, posits that Earth and its biological systems behave as a huge single entity/organism. This entity has closely controlled self-regulatory negative feedback loops that keep the conditions on the planet within boundaries that are favorable to life. Therefore, the Rights of Nature recognizes that non-human elements should be treated as legal entities with the right to exist, thrive, regenerate, and evolve.

Like human rights, the Rights of Nature are inherent, inalienable rights that arise from the mere existence of the rights holder. This means that every being or aspect of nature (including people) must, at a minimum, have the right to exist, the right to occupy space, and the right to interact with other beings in a manner that allows them to fulfill their unique role in ecological and evolutionary processes.

Humans have co-evolved in relationship with other beings, and this community of life is the fountain of our well-being. Therefore, the primary purpose of legal and governance systems must be to ensure that people protect and contribute to the integrity, health, and well-being of the entire Earth Community.

This implies transforming nature from a legal object into a legal subject, possessing its own inherent rights, regardless of its use for humanity. It would then be an ecocentric paradigm shift in our legal system. This ecocentric discourse shows striking similarities with human rights law. The Rights of Nature is one legal tool, among others, through which this paradigm shift can be realized.

Recent recognition of the Rights of Nature within Western legal systems is an important stepping stone towards an ecocentric orientation. Until now, the legal approach towards nature has been too ‘anthropocentric’ and heavily focused on neoliberal sustainable development concepts. It means that nature is perceived from a human perspective and as an object of law (e.g., as property or a source of raw materials). At present, Nature is seen as something that has resources (‘natural resources’) that are meant to benefit human beings having a commodifiable and disposable value.

Legal systems around the world for well over centuries have treated land and nature as “property”. Something that is considered property confers upon the property owner the right to exploit it for profit and in turn, damage or destroy it. Thus, those who “own” wetlands, forestland, and other ecosystems and natural communities, are largely permitted to use them however they wish, even if that includes destroying the health and wellbeing of nature. Laws and contracts are written to protect the property rights of individuals, corporations, and other legal entities. As such, environmental protection laws legalize environmental harm by regulating how much pollution or destruction of nature can occur within the law. Under such law, nature and all of its non-human elements have no legal standing.

Rather than treating nature as property under the current law, the rights of nature acknowledge that nature in all its life forms has the right to exist, persist, maintain, and regenerate its vital cycles.

Nature as Rights-bearing Entities and Wild Laws

A fundamental principle of Earth Jurisprudence is that all components of Nature, including plants, animals, rivers, and even entire species or ecosystems, should be granted legal personality in the same way as human beings. Earth Jurisprudence or Wild law is an emerging theory of law and governance that seeks to evolve law that recognizes our relationship with the broader Earth community.

Earth Jurisprudence aspires to promote a greater respect for nature and all living things on Earth, aiming to intertwine Earth’s natural law with the body of law that governs humanity. Wild Laws are human-made laws that are aligned with the laws of Nature and promote the flourishing of life, diversity, and healthy relationships, instead of legitimizing human exploitation of Earth. Wild laws reflect the understanding that, in order for humans to flourish, we must recognize and respect the rights of every member of the Earth community. Since, human beings are deeply interconnected with and dependent on nature, the ecocentric concept is proposed as a standard and measure for human law.

When we talk about the Rights of Nature, it means our recognition that ecosystems and natural communities are not merely property that can be owned. Rather, they are entities that have an independent and inalienable right to exist and flourish. Laws recognizing the Rights of Nature change the status of ecosystems and natural communities to being recognized as rights-bearing entities, right holders, or Juristic persons. They have rights and obligations according to the law of the land, just like any natural person. Any harm to these bodies would be treated in the same way as if inflicted on human beings.

The recognition of the Rights of Nature has been established through several constitutional, legislative, and judicial enactments in several countries that aim to provide legal protection for non-human entities and natural systems. People, communities, and governments have the authority to defend those rights on behalf of ecosystems and natural communities.

(To be continued)

By Dr Upul Wijayawardhana

“If mindfulness experts wish to make others also benefit from their expertise, it’s time they acted promptly to let others reap the said benefits. For example, they can use their increased grey matter and fine-tuned brains to put out the fires of war fuelled by bigotry?”

The simple answer to this question posed by Susantha Hewa in the article ‘Mindless violence: Need for more thought?’ (The Island, 26 June) has to be in the negative, unfortunately. By its very nature, though mindfulness practice can change ‘your world’, it is not able to change the world unless a vast majority of inhabitants of planet Earth indulge in mindfulness practices, which seems to be an impossibility, considering the fact that only a small percentage of even Buddhists practice it. Though commonly referred to as mindfulness, the practice introduced by the Buddha was Vipassana or insight; an insight into your own mind, which you have to experience yourself. Even the Buddha could not pass this insight onto another though he showed the way.

Vipassana meditation spread around the world due to the efforts of S. N. Goenka, who pointed out that it is a practice for all and that you do not have to be a Buddhist to practice it, pointing out that Dhamma is universal whereas the rituals associated with Buddhism, the religion built around, is for Buddhists. His Holiness the Dalai Lama, too, has highlighted this fact and, in addition, has aroused the interest of Western scientists to investigate the core teachings of the Buddha. The website on Goenka’s work ‘www.dhamma.org’ explains Vipassana as follows:

“Vipassana is a way of self-transformation through self-observation. It focuses on the deep interconnection between mind and body, which can be experienced directly by disciplined attention to the physical sensations that form the life of the body, and that continuously interconnect and condition the life of the mind. It is this observation-based, self-exploratory journey to the common root of mind and body that dissolves mental impurity, resulting in a balanced mind full of love and compassion. The scientific laws that operate one’s thoughts, feelings, judgements and sensations become clear. Through direct experience, the nature of how one grows or regresses, how one produces suffering or frees oneself from suffering is understood. Life becomes characterised by increased awareness, non-delusion, self-control and peace.”

As indicated, mindfulness can achieve internal peace; unfortunately, not peace to the world! Mindfulness practice has been adapted for the treatment of a number of psychiatric conditions the best-known being Mindfulness Based Cognitive Therapy (MBCT) which has been shown to be as effective or superior to drugs for the prevention of relapses of depression. Further, mindfulness has been shown to improve performance of children and behaviour of criminals. It has been used successfully for smoke cessation.

In October 2015, an all-party parliamentary group of UK produced a report titled ‘Mindful Nation UK’ and ‘The Mindfulness Initiative’, a policy institute that works with parliamentarians, media and policymakers to develop recommendations on the role of mindfulness in public life, was formed. In their website, they state:

“Scientific research is generating substantial evidence of the benefits of mindfulness to well-being. There is a great public interest in the field, but access to quality training is patchy. Despite recommendations by the National Institute of Clinical Excellence (NICE) for the use of Mindfulness-based Cognitive Therapy (MBCT) to prevent relapse in depression, NHS implementation rates are low, and there is little understanding of how mindfulness could help in other areas of policy. In an era dominated by statistics, case studies can really bring to life the potential that mindfulness can have for a diverse range of individuals. From schoolchildren to NHS staff, policemen, and members of parliament, mindfulness courses have offered significantly improved wellbeing by reducing stress, fostering compassionate care and providing greater clarity in prioritising the demands of life.”

Further, there is emerging data that mindfulness could be of help in two major health problems affecting the world. Though it may not be a big problem at the moment in Sri Lanka, due to the prevailing economic situation, obesity is a worldwide problem and it leads to many other problems including diabetes and heart disease.

According to a report published in ‘mindfulnessmeditationinstitute.org’ in January 2023: “A growing body of research has found that mindfulness helps people lose weight and keep it off. Researchers at North Carolina State University have evaluated several peer-reviewed studies that show a direct link between mindfulness and weight loss. And four out of the five studies that followed up months later found that research participants were able to keep the weight off. In another systematic review, researchers also found the link between mindfulness and weight loss in 13 out of 19 studies. The reasons for some of them not showing a link are likely due to methodology of the studies, such as the nature of the mindfulness intervention.”

It continues to state: “According to Judson A. Brewer, psychiatrist and director of research and innovation at the Mindfulness Centre at the Brown University School of Public Health, the reason mindfulness helps people lose weight is that overeating has more to do with the brain than the body. As he explains it, the cause of the extra pounds is eating based on emotions. Those who are overweight tend to eat when they feel stressed, lonely, or bored, and over time, they create deeply entrenched habits. One mechanism by which mindfulness works is that the practice helps build the prefrontal cortex of the brain, which is responsible for willpower to say no to unhealthy foods. In addition, mindfulness helps us understand the reasons for our eating behaviour, and gives us the strength to address those reasons. These two mechanisms are essential for changing old eating habits.”

It was the Buddha who advocated mindful eating, as well stated in Donapaka Sutta. When King Pasenadi of Kosala came to see the Buddha, he was breathless. Buddha, noticing that he was obese due to overeating, advised him on mindful eating and the king lost weight as a result. This is something we all can do. Instead of gulping our food till becoming breathless, we should learn to smell the food, taste each constituent and enjoy the food. In no time you would realise that small meals taken with mindfulness are more satisfying and less fattening!

One of the biggest health problems facing the world today is dementia. According to WHO, there are 55 million people with dementia worldwide, 60% of whom live in low and middle-income countries, nearly 10 million cases being added every year. Drug treatment is in its infancy and economic burden is tremendous. Interestingly, there are many reports indicating that mindfulness meditation can retard cognitive decline.

A recent trial in Canada on 261 nondemented older adults with a family history of Alzheimer dementia showed that mindfulness meditation not only reduced cognitive decline but also showed less beta-amyloid, a biochemical marker, in the brains. A French study of 137 patients showed that participants assigned to an 18-months course of meditation did better than those assigned to learn English as a stimulus to the brain. There are many other trials showing similar results but some may argue that these are small trials. However, we cannot overlook the fact that there are practical difficulties in conducting mega-trials.

Of course, there are other measures that will prevent dementia like a healthy diet and regular exercise. On top of these, at least a few minutes of mindfulness, a couple of times daily is bound to keep our brain functioning well. Loving-kindness meditation, as you are falling asleep may help good sleep, which is also important in preserving cognitive function.

Mindfulness, if practised regularly, can enrich our daily lives even if it does not change the world!

by Rajan Philips

In a split ruling last Monday, apparently for the ages, the conservative majority of the US Supreme Court gave Donald Trump a get-out-of-jail card and virtually iron clad protection from criminal prosecution. The majority ruling grants Trump and “all occupants of the Oval Office, regardless of politics, policy, or party,” absolute immunity for core constitutional acts, presumed immunity for all other official acts, and no immunity for unofficial acts. The latter immunity is arguably rendered more ostensible than real by the ruling’s rigid guidelines that forbid using facts from the sphere of official acts as evidence to prove criminality in unofficial acts. So much so, writing for the three liberal judges of the Court, Justice Sonia Sotomayor denounced the majority ruling and rejoindered: “With fear for our democracy, I dissent.”

The incumbent president has said that he needs no such immunity as he would always exercise his powers within the law. So has every other president before Trump. Still labouring to survive his debate debacle, President Biden offered his own denunciation of the ruling from the White House and resounded Justice Sotomayor’s dissent with fear for the future of American democracy. Biden accused that the majority ruling has fundamentally undermined the long standing premise of American constitutional democracy: “There are no kings in America. Each, each of us is equal before the law. No one, no one is above the law, not even the president of the United States.”

From the academic end of the spectrum of critics, Harvard University’s Laurence Tribe has opined that the ruling “restructures dramatically the American system of government” and makes way for an “imperial presidency.” For Steve Vladeck at Georgetown University, Washington DC, the ruling “tilts power away from Congress towards the president, away from judges towards the president … (and) most importantly, it tilts the power away from we the people.” Only the impeachment process is left behind as a safeguard against presidential “high crimes and misdemeanours”, and one that has proved itself to be weak and ineffective – especially “in a late second term of a presidency, just as we saw how ineffective it was late in President Trump’s first term.”

Unitary Executive

There is much more to this ruling than Donald Trump. Trump provided a convenient pretext for the ruling and has become its more than accidental beneficiary. The six conservative judges seized the opportunity given to them by Trump and used it to further extend the ‘unitary executive’ agenda of establishing a strong executive president to rein in the allegedly overgrown and over-regulatory Administrative State. In the process, the majority deliberately overlooked the appalling facts of the Trump case, dismissing them “as present exigencies” and pronouncing that “focusing on ‘transient facts’ may have profound consequences for the separation of powers and for the future of our Republic.” Be that as it may.

The unitary executive agenda is a Republican agenda that pre-dates Trump, which the current Roberts Court has been incrementally fulfilling for over a decade now. Monday’s ruling extends this agenda by conferring immunity on the office of the president in addition to empowering it. The notion of unitary executive has long been a matter for the Supreme Court in delineating the boundaries of power between the executive and legislative branches.

The term ‘unitary’ stems from the constitution’s vesting of all executive power in a single person rather than an executive council or a presidium. This is contrasted with the bicameral balancing of the legislative power between the House of Representatives and the Senate. Historically the Supreme Court has used this contrast to somewhat privilege the authority and actions of a president – on matters involving the entire executive branch – over the checks of the legislative branch.

Past disputes have mostly been about a president’s ‘removal powers’ vis a vis state officials in the executive branch and the ability of the legislative branch to check these powers. But lofty court rulings even on prosaic facts such as a president’s removal of a federal functionary have invariably created the usual universe of legal discourse on the unitary executive. Two schools of judicial thought – the maximalist and the minimalist – have emerged over time. None of this mattered much for the ordinary citizens, until now.

The unitary executive theory made its way to the White House as a companion to deregulation during the Reagan presidency and found almost full resonance during the second Bush Administration. Then Vice President Dick Cheney and Defence Secretary Rumsfeld were its prime proponents. Republican presidents would have had reasons to be annoyed with persistent Democratic majorities in the House and the Senate. Republican business supporters, on the other hand, were annoyed with the regulations of the Administrative State that hamstring industries from having a free run on the environment and natural resources.

President Bill Clinton expanded the oversight capacity of the federal Environmental Protection Agency, one of the singular creations of President Nixon in 1971, by hiring thousands of field inspectors and deploying them all across the land to protect the nation’s rich natural heritage. All the new hires of Clinton were fired by his Republican successor, Bush the younger. The process was replicated in the areas of health, housing, education and wherever the government was believed to have become the problem. The present Chief Justice John Roberts and Associate Justice Samuel Alito were exposed to embracing the unitary executive ethos during the Reagan Administration.

Judicial Pedigrees

Roberts continued under the younger Bush’s Administration along with present Associate Justice Brett Kavanaugh. Both men were part of Bush’s legal team in the Florida presidential election case in 2000, and Kavanaugh had been part of Kenneth Starr’s investigation of President Clinton in the Monica Lewinsky scandal. These career pedigrees provide insights into the workings of the Supreme Court and what judicial principles and philosophies they tend to embrace and what they choose to jettison in individual cases.

On the other hand, justices do not necessarily stay loyal to the presidents who appoint them. “That never happens” said the folksy President Harry Truman, even though presidents may think it would. Justices Sotomayor and Barret in a recent public discussion asserted that judges are not beholden to presidents or their parties who appointed them – for because of their lifetime appointment, judges far outlast their appointers who are done after four years or at most eight years.

Of the six conservative justices in the current Court, Clarence Thomas, the right wing maverick and the second African American justice after the great Thurgood Marshall, was appointed by President Bush the elder; Roberts (CJ) and Alito by Bush the younger; and the remaining three – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were appointed by Trump. Of the three liberal justices, Sonia Sotomayor and Eva Kegan were appointed by Obama, and the most recent addition, Justice Ketanji Brown Jackson, is a Biden appointee.

In fairness, the apex court receives about 7,000 appeal requests an year and selects fewer than 150 appeal cases for adjudication. Of the 150, only a handful of cases rise to prominence on the political radar, exiting ideological passions and heightening political controversies. The rest are decided more amicably and the rulings on them pass unnoticed except by law professionals and litigators. In the vast majority of the cases, the rulings are respected and are reflective of the manifestly serious, erudite and even brilliant legal minds at work. It is in the few politically charged cases that justices are known to split along ideological and political lines, and their rulings are scrutinized for social judgment, judicial hubris and political prejudices.

Although the six-three split in the Trump case has become well known as the Court’s ideological fault (or default) line, there have been other split combinations. Three of the six conservative justices – Chief Justice Roberts and Justices Kavanaugh and Barrett have joined the three liberal judges to constitute judicial majority in a number of key cases, including cases involving abortion medication and care as well as gun restrictions. Sometimes, Roberts and Barrett join the liberals to form a five-four majority. Justice Barett, the only female judge among the conservatives and the only judge from the South, has shown a tendency to carve her own space – sometimes joining her three female liberal colleagues and not infrequently distinguishing herself from her male conservative colleagues, especially the inflexibly conservative Clarence Thomas. If the next appointee, potentially succeeding Clarence Thomas, were to be a female justice, the Court will have more women than men for the first time in history – and a different five-four split.

The jostling, pairing and splits among the justices are also reflective of the political and cultural divisions in American society. Five of the six conservative judges are Catholics, and their collective elevation in the judiciary cannot be unrelated to the upward social mobility of American Catholics and the emergence of influential Catholic schools of thought on the political right – going by such names as “Catholic Post-Liberalism,” “Common Good Constitutionalism,” etc. Not to mention the voting shifts among American Catholics.

Traditionally, a good majority of American Catholics voted Democratic, but that stopped after the election of President Carter in 1976. Starting with the election of Ronald Reagan in 1980, a majority of Catholics have been voting Republican. Catholics became an important cohort of the so called Reagan Democrats. President Joe Biden is the second Catholic president after President Kennedy and perhaps more devout than the Boston playboy. Yet there is no Catholic embracing of Biden either by the clerics or the laity of the Church, as it was with Kennedy. Biden’s support of abortion rights and gender rights wins no favours from the church hierarchy or the court hierarchy.

Embattled Executive

The election of Trump as President implicated the Supreme Court at three levels. First, Trump had the rare opportunity to appoint three new judges in four years and that gave the conservatives a clear majority on the bench. Second, there was Trump’s MAGA (Make America Great Again) agenda without which the rolling back of some of the longstanding judicial precedents would not have been possible. Although only two of the conservative judges, Thomas and Alito who are also the oldest, are considered to be real MAGA enthusiasts, the other four justices have not been hesitant at all in joining forces to pronounce majority rulings in furtherance of their shared social conservative agenda.

The outcomes are the regressive rulings on abortion and on gun rights. The more recent ‘Chevron ruling’ belongs to the old Republican agenda that unites the traditional Republican and the new MAGA forces in achieving common ends. The new ruling handed down on June 28 overturns a 40-year old judicial precedent that has provided the framework for regulatory decision making in the federal government. The 1984 case was between Chevron Corporation, specializing in oil and gas industries, and the Natural Resources Defence Council, an environmental advocacy group, and was about a change in the interpretation of the word “source”, by the federal Environmental Protection Agency (EPA), for assessing and addressing air pollution.

At issue was the EPA’s authority to make the interpretive change in the absence specific provisions in the law. In a unanimous landmark ruling, the Court rejected the appeal, confirmed the EPA’s authority to fill gaps in the law, and established what has come to be known as the “Chevron deference,” requiring judges and courts to defer to the expertise of officials at federal regulatory agencies. The overturning of the Chevron ruling will undermine the ability of government agencies to regulate everything from clean water and air quality to health care. In addition to empowering the executive president to rein in the Administrative State, the Roberts Court has arrogated to itself the power to review and reject expert opinions.

The third implication of the Trump presidency for the Court is what might be called the embattlement of the executive; specifically, the Trump presidency. There is a load of truth in Trump’s often repeated protestation that no other American president has been targeted by the impeachment and judicial processes the way he has been, both in and out of office. What is even truer is that no other American president has conducted himself as Trump did, flouting every rule and convention and abusing the power of office to personal ends. The political reality is also that the sense of embattlement is widely shared by those on the political right and including judges on the Supreme Court.

To wit, Trump’s growing popular support after every indictment and conviction. To wit as well, the assumption of judicial responsibility in the majority ruling – to rescue the unitary executive from future harassment by the zealous prosecutors and the lower courts. This the majority did by deliberately ignoring the stark facts of the case against Trump for his insurrectionary attempt to overthrow the results of the 2020 presidential election. The ruling dismissed the nationally witnessed and well documented attempts of Trump as “present exigencies” and “transient facts,” and proceeded to provide a solution to a problem that only Trump had created, and which the Court could and should have ended with Trump.

In opting to protect all future presidents, the Court has not contributed to resolving any of the current exigencies and transient facts. It has only aggravated them and turned the transient into something more permanent. No one knows what Special Counsel Jack Smith is planning to do to restart his case against Trump after he has been quite severely handicapped by the Supreme Court. It is the same with all the other prosecutors and lower courts battling Trump.

The uncertainties over Trump’s cases are new additions to the already confused state of the American judicial system because of the Supreme Court’s overturning of longstanding precedents on abortion, gun restrictions, voting rights, affirmative action, and now in administrative law. The great resolution either way is being left to the people in the November presidential election. But the people are also handicapped in a presidential election in America because they cannot directly determine the outcome, but must filter it through the Electoral College system.