New in NRO: Gorsuch and Kavanaugh Declare Their Independence from Trump

In the tax return cases, the Trump Appointees "managed to separate themselves from this president but carefully guarded presidential authority for decades to come."

|The Volokh Conspiracy |

National Review Online published my new essay, Gorsuch and Kavanaugh Declare Their Independence from Trump. I wrote this before Joan Biskupic's latest leak, but it is consistent with my take.

Here is the introduction:

Neil Gorsuch and Brett Kavanaugh, perhaps more than any other Supreme Court justices in modern history, are closely connected to the president who appointed them. Gorsuch got his seat after Republicans stonewalled the nomination of Judge Merrick Garland and then Trump unexpectedly prevailed in the 2016 election. And any other president would have likely withdrawn his nominee after Christine Blasey Ford's allegations, but Trump dug deep, and Kavanaugh managed to cross the finish line. That past cannot be erased, but a new prologue is being written. Gorsuch and Kavanaugh know full well that Trump's tenure is limited. These Gen Xers may serve nearly half a century, long after the memory of President Donald J. Trump is relegated to the history books. And after the July 4 weekend, the two Trump appointees formally declared their independence from him.

And the conclusion:

Kavanaugh and, I suspect, Gorsuch understood this dynamic all too well. These judges were very much attuned to how they would be judged. So they split the difference. In voting for a framework that empowered future presidents to resist subpoenas, they also cast a hyper-technical vote that allowed New York's subpoena to be enforced against the current president. To the general public, the vote was 7–2. It was not unanimous, but this lopsided split was better than 5–4. And to Kavanaugh and Gorsuch, their short writing did not disturb the long-term constitutional equilibrium.

After the case was decided, Trump reportedly saw Gorsuch and Kavanaugh's "votes as a betrayal" and "expressed deep anger" at his nominees. I suspect that the duo could not care less about these White House fireworks. Independence has its perks. Soon enough, Trump will be gone. But Gorsuch and Kavanaugh will be with us for some time. With their narrow decision, they managed to separate themselves from this president but carefully guarded presidential authority for decades to come.

I will have much more to say about the Tax Return case in my third installment about the leaks.

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  1. I am just glad we didn’t have those worries with Breyer, Kagan, Sotomayor, and Ginsberg.

    1. The liberals crossed over in Clinton v. Jones. And the conservatives crossed over in United States v. Nixon.

      SCOTUS, in general, is somewhat skeptical of broad executive privilege arguments. If anything, it’s the positions of Thomas and Alito that run counter to the history.

      1. “If anything, it’s the positions of Thomas and Alito that run counter to the history.”

        As is, always was (well, make that since the mid-1800s), and always shall be.

        1. I can’t believe you’re still upset that the Republicans took away your slaves.

  2. Is there any reason to believe these purported “leaks” are accurate as to what really went on?

    1. “Trump will be gone…”

      Will he be gone though. Assuming he loses in November (which I think odds are at this time, but odds also quickly change in elections) do people think he is just going to fade into the work work?

      Maybe he will. I could see him easily just spending the last of his days playing golf and tending to his recovering businesses.

      But, I believe the odds are that he will still be active in politics and without being President he will have both advantages and disadvantages. But what he will have is that 38% of the voters that still believe in him and will (probably rightfully so) think the media and liberals denied him a fair four years to be President. Mad people can become motivated people. And if I was on the Left that would have me concerned. A “blue wave” in November might very well be a curse and not a blessing.

      1. I, for one, definitely think he will not “fade into the work work.”

      2. “A “blue wave” in November might very well be a curse and not a blessing.”

        Exactly, and the problem with the 38% figure is that there probably are 15%-20% to the RIGHT of him. People like Ann Coulter who don’t think he went far enough on Illegal Aliens and his promised “wall.” Fiscal conservatives who don’t like his spending. Etc.

        I still think he will win, and while I won’t start burning buildings if he doesn’t, I seriously will consider the possibly that the election was stolen from him. The “Impeach Biden” movement will be born and become the basis of the 2024 midterm elections.

        Do not forget that while Nixon resigned in 1974, Reagan was elected just six years later (and nearly got the nomination in 1976).

        1. I don’t think liberals realize they declared TOTAL WAR in 2016. They can’t expect the right to not respond with equal or greater force when it is their turn to play the minority party. They will cry foul as usual, but I don’t think it will end well for them. (Remember when they decided to get rid of the filibuster? Boy they regret that one.)

          1. So long as Democrats continue to inhabit the right side of history, the culture war seems destined to continue to shape our national progress in the direction the liberal-libertarian mainstream favors.

            Democrats should not become overconfident, though. If conservatives ever perfect a machine that mass-produces poorly educated, roundly bigoted, superstitious, selfish, easily frightened, gullible, gun-fondling, Fox-watching, rural, downscale, economically inadequate, stale-thinking, southern white males — and Republican lawyers such as the Conspirators figure a way to register the newly minted clingers to vote — Democrats could find themselves confronting some real problems.

            Otherwise, I am content.

            1. “If conservatives ever perfect a machine that mass-produces poorly educated, roundly bigoted, superstitious, selfish, easily frightened, gullible, gun-fondling, Fox-watching, rural, downscale, economically inadequate, stale-thinking, southern white males…..”

              Could this be the ultimate Rev. Arthur L. Kirkland post?

              1. I nominate it for a Kirkie!

            2. If conservatives ever perfect a machine that mass-produces poorly educated, roundly bigoted, superstitious, selfish, easily frightened, gullible, gun-fondling, Fox-watching, rural, downscale, economically inadequate, stale-thinking, southern white males

              What if instead we created a machine that destroys black, hispanic, and other poorly-educated low-income urban families while slaughtering their children and condemning the survivors to a life of crime and violence?

              We could call it something like “Progressivism.”

      3. Jimmy the Dane :

        (1) “do people think he is just going to fade into the work work?” Yes and no. As Bolton pointed out, Trump’s been only concerned about his brand as president – and that’s with a job that forces him to make substantive decisions. Even then you see his arbitrary attention span and drifting values, particularly when he’s unsure exactly where the PR lays (Covid 19 being the prime example). As ex-president he’ll make a lot of noise, but it will be even more unfocused and incoherent.

        (2) “38% of the voters…..(etc)” They voted for spectacle and entertainment, and that’s what they got. It’s hard to turn POTUS As Reality TV into a sustainable politician movement.

        (3) “…think the media and liberals denied him a fair four years to be President…” Sure, Trump had a chance to be president. Instead he was telling grotesque lies about his inauguration crowd and popular vote “victory” within hours of taking the oath of office. Somehow it’s never Donald’s fault, no matter how much he misbehaves like a little child. Most modern presidents have faced long investigations on much lesser grounds, but managed to be president regardless.

      4. Trump is like a horrible tenant that’s in the process of being evicted, and the landlord spends that last thirty days or so wondering just how badly he’s going to trash the house on the way out.

        Trump is a petty, vindictive, angry man who only cares about how things impact him. I could see him spending the weeks between November 3 and January 20 intentionally inflicting as much damage as he can on the way out.

        I may be wrong and I hope I am, but is there anything in anything that he’s done that suggests I’m wrong? He sees Kavanaugh and Gorsuch as having personally betrayed him, and whether or not they were right on the law is almost beside the point.

        1. Oh, you think he’s going to have the “B” keys ripped off all the keyboards?

          1. Brett, the president has the power to do an incredible amount of damage. He could, i.e., forward the contents of his intelligence briefings to Moscow or Beijing. He could pardon the entire federal prison population. He could get us into a war. He could screw up our trade and diplomacy for years to come. And from his standpoint it would have the added benefit of taking up most of Biden’s term to fix, leaving him limited time and resources to actually get any of his policies enacted.

            Maybe he won’t do any of those things, and I hope he doesn’t. I hope he’s enough of a grown up to accept the decision of the voters. But we are talking about a small, petty, vindictive and spiteful man. Is there anything in what we know of his character that would suggest he won’t?

            1. Remember how all that Russia stuff was made up? Apparently not.

              It sounds like you are almost sad that Trump isn’t a traitor.

              1. I don’t think Trump has the wits to be a traitor. I think he’s incapable of thinking beyond how something impacts him.

                I once represented a husband in a divorce case who reduced almost a million dollars in family assets to cash and then burned it because he couldn’t bear the thought of having to share it with his soon to be ex wife. That’s the sort of behavior I’d expect from Trump.

                And if I turn out to be wrong? I’ll be ecstatic.

                1. “That’s the sort of behavior I’d expect from Trump.”

                  I know. But that doesn’t tell us anything about Trump, it tells us about YOU. You like imagining that your political foes are horrible people. Yes, we know this. Doesn’t mean they are.

                  1. Nope, Trump is the first president of either party as to whom I would expect this sort of conduct. Not even Nixon.

                  2. By the way, you did see that he’s now suggesting the election be delayed?

              2. Jimmy the Dane : “Remember how all that Russia stuff was made up?”

                Which of the below is made up?

                1. The Russians actively worked to make Trump President

                2. Trump Jr said he’d be ecstatic about secret Russia help for his daddy’s campaign – in writing no less.

                3. Trump’s campaign manager gave private briefings to a Russian spy

                4. Trump’s NSA nominee lied about his negotiations with Russia to White House officials – and the Vice President – and the FBI

                5. Trump’s son-in-law asked to use Russian secure communication lines so his own government wouldn’t hear what was said

                6. Trump’s private attorney conducted secret business negotiations with Moscow all during the campaign, even while the Russian government was trying to help Trump get elected.

                7. Trump lied about his Russian dealing during the campaign. He was repeatedly asked; he repeatedly lied.

                8. The Russians hacked emails from Clinton associate Podesta and sat on them for five months, then released the first batch less than an hour after the Access Hollywood story shook the Trump campaign Their boy was in trouble and needed help.

                9. Trump repeatedly sought collusion from a foreign government to help his campaign.

                Answer : None of them are made up – though the last one is a bit out of sequence with the rest. Kind of makes Trump Cult snowflake whining about the investigation look pretty ridiculous, eh?

            2. He could order the federal investigative agencies to manufacture an international conspiracy from unreliable sources, use that manufactured conspiracy to justify spying on a rival political party (by lying to the court), create paranoia and panic among the uneducated dupes in his party, and usher in years of paranoia and discontent that wouldn’t fade even as his actions come to light years later.

              Scary stuff.

              1. Hilarious. Your post sits right under facts that disprove everything you say. And you can’t challenge any of those facts, although they make your tin-foil-hat-spiel meaningless.

                Will you still be addicted to lies after 03 November?
                Or will President-Elect Biden be your chance to go cold turkey?

        2. Let’s hope there are a couple Dietrich von Choltitz’s hidden in this administration.

    2. I have heard that some of the “leaks” from earlier courts were inaccurate or incomplete. So I wouldn’t assume these are fully accurate. If Biskupic is getting inaccurate or spun information, she has few avenues to verify the story.

      1. Aren’t court clerks supposed to keep their mouths shut?

        Aren’t there sanctions for those who don’t?

        I’m thinking there ought to be a few sanctioned individuals….

      2. “Leak” stories are fun, but they are also an ethical fine line. Usually a leak has to be verified to some extent and usually the people who the “leak” is talking about can refute what they say in public. Here you have a weird dynamic though where the Justices can’t really come out to challenge the leak because of many reasons.

        I think there is a decent chance CNN is just making up these stories. They track closely to “predictions” made from SCOTUS watchers that post regularly about the subject. In fact, a little too much so….

        1. I don’t think they are making them up. SCOTUS clerks are extremely ambitious, extremely connected people. Some of them may well be looking forward to seeking employment in the media, and have the Ivy League credentials to do it.

          And justices have relationships with media figures as well.

          But without the reliable mechanisms of verification that you reference, the likelihood of error is far higher than in more typical forms of journalism.

          1. I don’t think someone who clerks for the Supreme Court is looking for a career in the media, Dilan.

            But leaking is a natural human phenomeon. It’s gossip, and in this case highly influential gossip.

  3. Wouldn’t NOT having to separate yourself from the President who nominated you be just as much a perk of independence?

    Why care either way? Just rule on the damned merits, already!

    1. Is there anything beyond Prof. Blackman’s self-indulgent speculation to indicate that this isn’t the case?

    2. Exactly. If they didn’t rule on the merits (and clearly they didn’t), they are bad justices.

  4. I think the decision by Kav and Gorsuch in regards to the tax returns was a good one.

    For a long time, it’s been clear that the lawsuits about the tax returns have really been a means to use them as political ammunition and to release them to the public. I’ve supported the ability for investigators to be able to access the information, so long as it remained confidential.

    By deciding the lawsuits as they did, the information can be accessed by investigators, and remain confidential.

    1. That, of course, is the question: They could remain confidential, but will they? They state authorities seeking them are no less politically motivated than the House members, after all.

      1. However, the information is legally required be kept confidential there by the prosecutors. There’s no easy legal out of “entering it into the Senate record”.

        The information could, of course, be leaked. That would be a crime, and be prosecutable.

        1. Yeah, grand juries don’t leak nearly as much as congressional committees. And SCOTUS is surely aware of that fact.

        2. That’s true, and why Democrats really didn’t like the way it came out. But get those returns into enough hands and they WILL leak.

          I expect they already have leaked, and we haven’t seen them because they’re still working out how to protect the speakers.

          1. Yes, that’s the issue — it’s not having the information but being able to explain where and how you got it.

            And the flip side of that is having to prove the legitimacy of your data, which means documenting your source.

          2. Personally, I would have marked the records that were released, or introduced a few innocuous typos or other items.

            Then if a pdf copy or whatnot comes out with the marks, you come down, and you come down hard. It’ll be crystal clear where it came from. Put the lead prosecutor in jail (Because those records are ultimately his responsibility), and get him to flip on any co-conspirators.

            1. Armchair Lawyer : Put the lead prosecutor in jail (Because those records are ultimately his responsibility)

              Better yet, jail his wife and children, right?

              (Apparently there’s a bit of soviet apparatchik inside every Trump supporter)

            2. Yeah, I don’t think you could get away with altering your tax records that way to run a canary trap, not to mention that they’ll probably just get them straight from the IRS.

  5. To paraphrase General “Buck” Turgidson, “Perhaps it might be better, Supreme Court Justices, if you were more concerned with the American People than with your image in the history books.”

  6. SCOTUS rulings based on “because Trump” and preening for a morsel of approval in the pages of the Washington Post.

  7. Interesting times when you see conservatives doing PR for the Supreme Court.

  8. “And any other president would have likely withdrawn his nominee after Christine Blasey Ford’s allegations”

    Like George H.W. Bush and Clarence Thomas?

    1. I think this is the third or fourth time Blackman has test-marketed his Trump “profile of courage” shtick about Kavanaugh. You know, Brett got his start running the most hack-partisan special counsel investigation that ever existed. His “work” on Vince Foster’s suicide was an ugly mean farce. Then he pops-up playing bit parts in efforts to prevent the Florida recount and use poor brain-dead Teri Schiavo & little Elian Gonzalez for political gain. Ultimately that road led to the Supreme Court.

      A cynic would suggest this proves tawdry whoring pays off in the end. I wonder who else has taken that lesson to heart?

  9. Meh.

    We all well-know who Bart O’Kavanaugh is, as will the occupant of the Merrick Garland chair.

    Perhaps some of that is unfair to Gorsuch. “I’m sure he’ll get over it,” as McConnell likes to say. But Bart’s reputation is set.

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