A common theme cutting across seemingly unrelated headlines is how the Supreme Court's own recent behavior has left it with little room to maneuver around a slew of political and legal landmines
Well …… gosh. Now we know the court is terribly busy and is moving as fast ans it can and that political arguments don’t supersede legal ones. And we also know that the court had ample basis for taking the immunity case. “Politics ” is sort of a constrained way to refer to the most important and consequential election in most of our lives, including maybe the nation’s life. But what is a political choice? It is a fundamental mistake to argue that not taking this case or accelerating it is political while doing what the court did - which is everything possible to delay this case until after the election (when Trump can dismiss it ) is somehow not political. Occams Razor is a,better guide. This is a politicized, corrupt court that has deliberately delayed this case so that Trump doesn’t have to worry about it.
This entry seems to have more words in bold than usual.
As to the "vitriolic" replies ... this will be somewhat one as well. To your defense of SCOTUS.
I'm sorry they are sooooo busy (e.g., taking abortion related cases after stripping abortion rights from millions of people) writing sixty-odd opinions split nine ways.
But they were asked to take the immunity case up in December. They waited weeks to decide this time. Now, they put it off to the end of April. I know they are SO BUSY, but this is sort of time sensitive. They could have squeezed it in sooner, even if it required them to postpone something.
And the timing of the release today is not just accidental. It was a CHOICE on their part. I find it hard (assuming it's the Colorado case) to believe they couldn't drop it a few days earlier when they were available. How much rope are these people going to get?
Just to toss it in there, it's rank corruption that Thomas is involved in both cases. Which they shouldn't have taken (at least in the way they did) & will what? Decide against Trump but find a way to weaken the D.C. opinion somehow to answer a question with no compelling need to be answered now?
I don't understand how removing Trump from the ballot in three states also removes him from the other 47.... also the argument that the people deserve the right to vote on Trump in November reminds me of McConnell denying Obama a supreme court nomination a year before his term was up... again saying that the people need to be able to weigh in on this... they already weighed in on it when they elected Obama
This brings to mind the point that for the Supreme Court to simply rule that STATES don't have the right to enforce the Fourteenth Amendment against Trump glaringly ignores the obvious point that THEY have the unique ability (and DUTY) to do so. The Fourteenth Amendment text does not state or imply that the criminal case standard of "beyond a reasonable doubt" is applicable for its enforcement. The criminal charges against Trump were brought by grand juries; their indictments required the standard of "probable cause". Since the J-6 indictment involved charges of seditious violation of oath of office, the reasonable standard of probable cause to enforce the Fourteenth Amendment has been met. Yet the Court's behavior in oral argument suggest that they are ignoring this. This seems to me to be blatantly political, and I personally hold this Supreme Court in utter contempt.
The Supreme Court should be concerned with whether the Jan. 6 prosecution can proceed to verdict before the election. But, even if it shouldn't dirty its hands with that "political" issue and even if there are situations in which a president might plausibly claim immunity from prosecution, Trump's own claim of immunity is absurd and is offered only for the purpose of delay. Any court ought to slap down any litigant who plays that game so obviously, but the Court hasn't used any of several opportunities it's had to do so.
If I'm charged next year with a murder I committed in order to further my research, I'll argue that academics are absolutely immune for acts undertaken in furtherance of their important social role. When the trial judge rules against me, I suppose our legal system will put my trial on hold for months while I appeal, seek rehearing en banc, and then seek Supreme Court review. For I'm claiming a right not to be tried at all. Will commentators call the issue I've raised important because it's never formally been resolved, because some academics may be entitled to some kind of privilege, and because it would be a big deal if my claim prevailed? The Court's validation of Trump's abusive strategy is shameful.
Since I follow the Texas cases, thank you for your coverage of the Fifth's bizarre behavior. And your comments on this and the emergency application related to the Idaho case are spot on.
What I'm seeing generally in the Fifth cases is a decent judge, David Ezra, rules based on law, but this frequently goes against Texas, in which case he gets verbally abused by the Fifth...which seems to never rule based on law, but on whim, whimsy, or in most cases, petty peevishness. And since SCOTUS doesn't rule in their favor most of the time, they're using this as an opportunity to extend their petty behavior to SCOTUS.
What we need is a court system to override our current court system, because we have no checks and balances in the existing one.
The only possible response other than amending the Constitution is a long shot: after the election, 13. Okay, a *very* long shot. But the alternative is being governed at least for decades by the Federalist Society ideologues.
We could expand both SCOTUS and the Fifth. In actuality, they both need it. Both courts are overrun with cases. The term limits concept, whereby after so many years, a judge is then moved over to senior status, is interesting. But the courts would have to decide on this...and how could they do so fairly?
If, for once, Democratically inclined people actually showed up to vote, and not get their knickers into a knot over the lack of progressive purity in the ticket, we could start moving in the right direction. But we need a change of leadership in the Senate.
The problem with this, the reason we really need a Constitutional amendment (several, really, but this issue needs to be handled by one of them), is the lack of a general principle. If we expand the court because there's no way to remove justices and the current set are making terrible decisions, what's stopping some future Congress and President from saying, hey, the *new* set of justices are making terrible decisions, so we're going to expand the Court again?
The number of justices is ultimately arbitrary. It could be 7; it could be 11; things wouldn't be that different. More than just solving the problem of the current Court, we need to reach a steady state where we don't end up confronting the same problem *again* in ten or twenty years, and that means we absolutely must do more than just set the count of seats to a different arbitrary number.
The key is to make the court large enough that no one president can overly influence it.
I used to think 21, but I've become convinced that 27 is the better number. We could add 2 every presidential term until the number is met. This way the Republicans have a shot at appointing new justices, and Democrats have a shot, and no one could say that a party was denied a fair shot.
If we have a court this size, every President will be appointing one or more justices to the court because vacancies will become more commonplace. Think of it, this happens now in the circuit courts.
And no president could ever have such a disastrous impact on the court.
As a procedure they could appoint a panel of nine for every case. And develop a procedure for an en banc hearing. And none of this requires a Constitutional amendment.
We need to alter our understanding of what the Supreme Court is. We need to make it a court of law, rather than a panel of Gods. We have made this Thing and given it virtually unlimited powers. And the only way to fix it is to dilute the power.
Your incredible ability to bring clarity has me in awe. The subject matter, though, has me quaking in my boots. I kept thinking about the ”Saturday Night Massacre” although it’s so long ago the details escape me. And yesterday was the 59th anniversary of “Bloody Sunday” which should give us all pause. Thank you, Steve, for all your hard work (I was led here after hearing Asha Rangappa say that you’re the Court whisperer—or something to that effect.)
Wow, the Trump v Anderson decision was fascinating reading. Sure, the decision was unanimous, but it certainly wasn't unanimous in scope. The three liberals felt the majority went beyond what was necessary, and then Barrett comes along, seemingly chastising them and telling the rest of us to ignore them.
"[M]y own view is more complicated—and, maybe, more naïve." So it strikes me (to put it charitably, which you deserve). Your respect and love for, even identification with, the Court as an institution is blinding you to the gross corruption the current majority of the Court is now displaying. You chronicle it, but refuse to see it for what it is. How about today's ruling on the Colorado-primary-ballot case -- blatantly reaching out to decide more than they had to. (The "It's all these problems, not just one, that demand this result" explanation is a wholly unconvincing response to the dissenters.) Of course their treatment of the immunity case is Exhibit A -- turning a blind eye to the need to avoid having the electorate informed whether a candidate for the power of the presidency really is an insurrectionist, not the victim of a "political witch hunt," before casting their votes, because he's THEIR insurrectionist and would-be "president for life" autocrat, AND framing the QP with the bizarre phrase "conduct *alleged to involve* official acts." As Bowman Cutter writes, "Occam[']s Razor is a,better guide" to what's going on than is your fervent wish that the Court continues to deserve respect.
How much of this lack of definition, or as you put it, "role morality", is down to CJ Roberts, who by most observers' reckoning, is one of the weaker Chief Justices in the past several decades. He has spectacularly failed IMHO in attempting to rein in his far-right brethren Alito and Thomas, whose opinions can hardly be classified as reasoned and collegial. And whatever efforts Roberts has tried to do in conference to forcefully argue for a narrow rather than overly broad majority decisions in seminal cases have as well gone down in flames.
Actually, to speak of "the Roberts Court" is to suggest a rather pejorative note, all self-inflicted I'm sorry to say.
If the problem is that Alito and Thomas don't listen to him, or aren't capable of separating their policy preferences from the role they play in the broader government, is that necessarily Roberts's fault? I'm not saying he's blameless. At the very least, he could resign instead of pretending that everything's fine and he's up to the task of governing this Court. But if the problem is that Alito and Thomas have no principles and reject all efforts to impose principles upon them, it seems wrong to assign all the blame to Roberts.
What we know is "consistent" with this Court majority is that it is hellbent on making policy. That the 14.3 CO ballot opinion and the heavy-handed (or is the metaphor, "thumb on the scale") decision in the immunity case have generated such vitriol, is simply a manifestation of the widespread visceral loathing of the "grab 'em by the democracy" guy --- even among the most rational and sober-minded among us.
Given the Question Presented, what would bar criminal prosecution if the complaint specifically alleged that the acts in question were NOT in the course of official duties?
What a great sweep of history roundup! It's clear that a nine-justice court isn't up to the tasks it has undertaken and the Chief ought to step up to the plate and let it be known that the Court needs an augmented bench to keep up. Thirteen seems about right, to match the 11 plus DC and Federal.
If the Chief had the institutional fortitude, he would direct the Impunity case toward a refresher on the collateral order doctrine to tighten up the application of the Midland Asphalt standard to the threshold question of whether the DC Circuit had jurisdiction over the claim in the first place. The right not to be tried in the first place was spun out of emanations of penumbras and shouldn't be spoon fed. Or why not just do a Dobbs on Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)? Or, better yet resolve the Circuit split over the application of Midland Asphalt. United States v. Joseph, 26 F.4th 528 (1st Cir. 2022).
An excellent discussion. No doubt it will be difficult, if not impossible, to separate the broader crisis of incoherence on the part of the Court from the individual crises it has created.
Well …… gosh. Now we know the court is terribly busy and is moving as fast ans it can and that political arguments don’t supersede legal ones. And we also know that the court had ample basis for taking the immunity case. “Politics ” is sort of a constrained way to refer to the most important and consequential election in most of our lives, including maybe the nation’s life. But what is a political choice? It is a fundamental mistake to argue that not taking this case or accelerating it is political while doing what the court did - which is everything possible to delay this case until after the election (when Trump can dismiss it ) is somehow not political. Occams Razor is a,better guide. This is a politicized, corrupt court that has deliberately delayed this case so that Trump doesn’t have to worry about it.
This entry seems to have more words in bold than usual.
As to the "vitriolic" replies ... this will be somewhat one as well. To your defense of SCOTUS.
I'm sorry they are sooooo busy (e.g., taking abortion related cases after stripping abortion rights from millions of people) writing sixty-odd opinions split nine ways.
But they were asked to take the immunity case up in December. They waited weeks to decide this time. Now, they put it off to the end of April. I know they are SO BUSY, but this is sort of time sensitive. They could have squeezed it in sooner, even if it required them to postpone something.
And the timing of the release today is not just accidental. It was a CHOICE on their part. I find it hard (assuming it's the Colorado case) to believe they couldn't drop it a few days earlier when they were available. How much rope are these people going to get?
Just to toss it in there, it's rank corruption that Thomas is involved in both cases. Which they shouldn't have taken (at least in the way they did) & will what? Decide against Trump but find a way to weaken the D.C. opinion somehow to answer a question with no compelling need to be answered now?
I don't understand how removing Trump from the ballot in three states also removes him from the other 47.... also the argument that the people deserve the right to vote on Trump in November reminds me of McConnell denying Obama a supreme court nomination a year before his term was up... again saying that the people need to be able to weigh in on this... they already weighed in on it when they elected Obama
Randall,
This brings to mind the point that for the Supreme Court to simply rule that STATES don't have the right to enforce the Fourteenth Amendment against Trump glaringly ignores the obvious point that THEY have the unique ability (and DUTY) to do so. The Fourteenth Amendment text does not state or imply that the criminal case standard of "beyond a reasonable doubt" is applicable for its enforcement. The criminal charges against Trump were brought by grand juries; their indictments required the standard of "probable cause". Since the J-6 indictment involved charges of seditious violation of oath of office, the reasonable standard of probable cause to enforce the Fourteenth Amendment has been met. Yet the Court's behavior in oral argument suggest that they are ignoring this. This seems to me to be blatantly political, and I personally hold this Supreme Court in utter contempt.
Supreme Court Ethics: Last Week Tonight with John Oliver
https://youtu.be/GE-VJrdHMug
Funny but many good points made here.
I very much appreciate this insight - thanks so much!
The Supreme Court should be concerned with whether the Jan. 6 prosecution can proceed to verdict before the election. But, even if it shouldn't dirty its hands with that "political" issue and even if there are situations in which a president might plausibly claim immunity from prosecution, Trump's own claim of immunity is absurd and is offered only for the purpose of delay. Any court ought to slap down any litigant who plays that game so obviously, but the Court hasn't used any of several opportunities it's had to do so.
If I'm charged next year with a murder I committed in order to further my research, I'll argue that academics are absolutely immune for acts undertaken in furtherance of their important social role. When the trial judge rules against me, I suppose our legal system will put my trial on hold for months while I appeal, seek rehearing en banc, and then seek Supreme Court review. For I'm claiming a right not to be tried at all. Will commentators call the issue I've raised important because it's never formally been resolved, because some academics may be entitled to some kind of privilege, and because it would be a big deal if my claim prevailed? The Court's validation of Trump's abusive strategy is shameful.
Since I follow the Texas cases, thank you for your coverage of the Fifth's bizarre behavior. And your comments on this and the emergency application related to the Idaho case are spot on.
What I'm seeing generally in the Fifth cases is a decent judge, David Ezra, rules based on law, but this frequently goes against Texas, in which case he gets verbally abused by the Fifth...which seems to never rule based on law, but on whim, whimsy, or in most cases, petty peevishness. And since SCOTUS doesn't rule in their favor most of the time, they're using this as an opportunity to extend their petty behavior to SCOTUS.
What we need is a court system to override our current court system, because we have no checks and balances in the existing one.
The only possible response other than amending the Constitution is a long shot: after the election, 13. Okay, a *very* long shot. But the alternative is being governed at least for decades by the Federalist Society ideologues.
We could expand both SCOTUS and the Fifth. In actuality, they both need it. Both courts are overrun with cases. The term limits concept, whereby after so many years, a judge is then moved over to senior status, is interesting. But the courts would have to decide on this...and how could they do so fairly?
If, for once, Democratically inclined people actually showed up to vote, and not get their knickers into a knot over the lack of progressive purity in the ticket, we could start moving in the right direction. But we need a change of leadership in the Senate.
The problem with this, the reason we really need a Constitutional amendment (several, really, but this issue needs to be handled by one of them), is the lack of a general principle. If we expand the court because there's no way to remove justices and the current set are making terrible decisions, what's stopping some future Congress and President from saying, hey, the *new* set of justices are making terrible decisions, so we're going to expand the Court again?
The number of justices is ultimately arbitrary. It could be 7; it could be 11; things wouldn't be that different. More than just solving the problem of the current Court, we need to reach a steady state where we don't end up confronting the same problem *again* in ten or twenty years, and that means we absolutely must do more than just set the count of seats to a different arbitrary number.
The key is to make the court large enough that no one president can overly influence it.
I used to think 21, but I've become convinced that 27 is the better number. We could add 2 every presidential term until the number is met. This way the Republicans have a shot at appointing new justices, and Democrats have a shot, and no one could say that a party was denied a fair shot.
If we have a court this size, every President will be appointing one or more justices to the court because vacancies will become more commonplace. Think of it, this happens now in the circuit courts.
And no president could ever have such a disastrous impact on the court.
As a procedure they could appoint a panel of nine for every case. And develop a procedure for an en banc hearing. And none of this requires a Constitutional amendment.
We need to alter our understanding of what the Supreme Court is. We need to make it a court of law, rather than a panel of Gods. We have made this Thing and given it virtually unlimited powers. And the only way to fix it is to dilute the power.
Your incredible ability to bring clarity has me in awe. The subject matter, though, has me quaking in my boots. I kept thinking about the ”Saturday Night Massacre” although it’s so long ago the details escape me. And yesterday was the 59th anniversary of “Bloody Sunday” which should give us all pause. Thank you, Steve, for all your hard work (I was led here after hearing Asha Rangappa say that you’re the Court whisperer—or something to that effect.)
Wow, the Trump v Anderson decision was fascinating reading. Sure, the decision was unanimous, but it certainly wasn't unanimous in scope. The three liberals felt the majority went beyond what was necessary, and then Barrett comes along, seemingly chastising them and telling the rest of us to ignore them.
Wowser.
"[M]y own view is more complicated—and, maybe, more naïve." So it strikes me (to put it charitably, which you deserve). Your respect and love for, even identification with, the Court as an institution is blinding you to the gross corruption the current majority of the Court is now displaying. You chronicle it, but refuse to see it for what it is. How about today's ruling on the Colorado-primary-ballot case -- blatantly reaching out to decide more than they had to. (The "It's all these problems, not just one, that demand this result" explanation is a wholly unconvincing response to the dissenters.) Of course their treatment of the immunity case is Exhibit A -- turning a blind eye to the need to avoid having the electorate informed whether a candidate for the power of the presidency really is an insurrectionist, not the victim of a "political witch hunt," before casting their votes, because he's THEIR insurrectionist and would-be "president for life" autocrat, AND framing the QP with the bizarre phrase "conduct *alleged to involve* official acts." As Bowman Cutter writes, "Occam[']s Razor is a,better guide" to what's going on than is your fervent wish that the Court continues to deserve respect.
How much of this lack of definition, or as you put it, "role morality", is down to CJ Roberts, who by most observers' reckoning, is one of the weaker Chief Justices in the past several decades. He has spectacularly failed IMHO in attempting to rein in his far-right brethren Alito and Thomas, whose opinions can hardly be classified as reasoned and collegial. And whatever efforts Roberts has tried to do in conference to forcefully argue for a narrow rather than overly broad majority decisions in seminal cases have as well gone down in flames.
Actually, to speak of "the Roberts Court" is to suggest a rather pejorative note, all self-inflicted I'm sorry to say.
If the problem is that Alito and Thomas don't listen to him, or aren't capable of separating their policy preferences from the role they play in the broader government, is that necessarily Roberts's fault? I'm not saying he's blameless. At the very least, he could resign instead of pretending that everything's fine and he's up to the task of governing this Court. But if the problem is that Alito and Thomas have no principles and reject all efforts to impose principles upon them, it seems wrong to assign all the blame to Roberts.
What we know is "consistent" with this Court majority is that it is hellbent on making policy. That the 14.3 CO ballot opinion and the heavy-handed (or is the metaphor, "thumb on the scale") decision in the immunity case have generated such vitriol, is simply a manifestation of the widespread visceral loathing of the "grab 'em by the democracy" guy --- even among the most rational and sober-minded among us.
As former AG Eric Holder has suggested, the majority of the American voting public is the cavalry, not the courts.
Except our elections and government ham-string majority rule at every turn.
5th Circuit following Steve Bannon’s strategy of flooding the zone with shit is . . . something
Given the Question Presented, what would bar criminal prosecution if the complaint specifically alleged that the acts in question were NOT in the course of official duties?
What a great sweep of history roundup! It's clear that a nine-justice court isn't up to the tasks it has undertaken and the Chief ought to step up to the plate and let it be known that the Court needs an augmented bench to keep up. Thirteen seems about right, to match the 11 plus DC and Federal.
If the Chief had the institutional fortitude, he would direct the Impunity case toward a refresher on the collateral order doctrine to tighten up the application of the Midland Asphalt standard to the threshold question of whether the DC Circuit had jurisdiction over the claim in the first place. The right not to be tried in the first place was spun out of emanations of penumbras and shouldn't be spoon fed. Or why not just do a Dobbs on Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)? Or, better yet resolve the Circuit split over the application of Midland Asphalt. United States v. Joseph, 26 F.4th 528 (1st Cir. 2022).
An excellent discussion. No doubt it will be difficult, if not impossible, to separate the broader crisis of incoherence on the part of the Court from the individual crises it has created.