The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
DOJ Should Not Let Chief Justice Roberts Decide Anything Concerning the SDNY U.S. Attorney
Generally DOJ is eager to appeal anything, and everything to the Supreme Court. Not during Blue June.
For a generation, legal conservatives have waged a war on Morrison v. Olson. Justice Scalia's dissent is part of our canon. The conventional wisdom was that all of the conservative Justices, if given the chance, would agree with Justice Scalia. Not now. Not during Blue June. Chief Justice has turned this term into a one-man mission: do everything he thinks necessary to save the Supreme Court.
The Department of Justice should tread very carefully with SDNY U.S. Attorney Geoffrey Berman. (Charlie Savage wrote a helpful explainer). The lower courts may rule that his removal--actual or de facto--by Barr is unconstitutional. The lower courts my also rule that Berman's firing by Trump is unconstitutional. And the courts also may conclude that neither Barr nor Trump can appoint Berman's replacement.
If so, the usual move would be to appeal the case to the Supreme Court. Savage writes:
But if potential litigation over the issue were to go all the way to the Supreme Court, a majority of the justices are Republican appointees steeped in a conservative ideology of White House power that includes a robust view of the president's ability to remove officials.
No. Not now. Chief Justice Roberts would be willing to give up the chance of narrowing Morrison, for the sake of saving the Supreme Court. He'll do the opposite, and limit presidential power. And in the process, he will no doubt adopt a cramped, ambiguous reading of Article II that will hamstring the executive branch for generations.
Alas, to use the phrase of the day, this horse may already be out of the barn. DOJ is headed on a kamikaze mission to the Chief. And Barr's successor will have to pick up the pieces.
