The Supreme Court's Trump Exceptionalism

My essay in today's New York Times.

I have an op-ed in today's New York Times reflecting on the most recent Supreme Court term. I was originally going to write a piece that said "the Court is doing fine, basically!" but ended up concluding that there had to be a giant asterisk next to that.

It is currently titled A Principled Supreme Court, Unnerved by Trump. (My working title was "The Trump Exception." A cheekier title would have been "'Trump Derangement Syndrome' Derangement Syndrome.")

From the beginning:

At the end of another momentous term, the Supreme Court has issued major rulings that will reshape the law. Like much that the court does today, these decisions, in areas like administrative law, have been widely criticized as corrupt or illegitimate.

For the most part, this criticism does not give the Supreme Court enough credit. In case after case, it has rightly emphasized the importance of turning to historical understandings in deciding constitutional cases rather than imposing modern policy views. Most of the court's decisions are principled and sound — most but unfortunately not all.

There were two particularly salient blemishes on the court's performance this year — and they are particularly unfortunate because they related to Donald Trump.

From the middle:

Trump v. Anderson's holding lacked any real basis in text and history and also is at odds with the basic structure of the Electoral College, in which states have primary authority to decide how their slates of electors are chosen. The ruling's real function was to let the court reverse the Colorado Supreme Court and avoid the political firestorm that might have ensued, without requiring the court to take sides on what happened on Jan. 6. . . .

[Trump v. United States's] reasoning went well beyond any specific part of the Constitution or any determinate constitutional tradition. Its methodology was explicitly grounded in Nixon v. Fitzgerald, a policymaking precedent from the 1980s akin to ones the court has criticized elsewhere. Justice Barrett, who joined only part of the majority, wrote a concurring opinion proposing a narrower, much more grounded form of immunity limited to core executive acts.

What is going on? Some critics say that everything the court does is generally unprincipled and illegitimate, which is not correct.

Others may suggest that the court is pro-Trump . . .

What is more likely is that in these cases, the court sees itself as trying to save the country from other institutions' disproportionate responses to Mr. Trump. It believes that lower courts and the Justice Department have succumbed to a version of Trump derangement syndrome, which is said to afflict so many liberal elites and even Never-Trump conservatives.

And the end:

The court is motivated by statesmanship, which the country sorely needs today. The problem is that this statesmanship is a form of the kind of outcome-oriented policymaking that the court disparages in other contexts. It trusts states to handle the homelessness crisis but not ballot access for insurrectionists, even though the Constitution trusts states with both. It trusts juries to handle fines for securities fraud but not punishment for abuse of the presidency, even though the Constitution trusts juries with both.

When dealing with Mr. Trump in particular, the court is so sure that our other institutions cannot be trusted that it fails to look in the mirror.

You can read the whole thing here. And as noted yesterday, I have a much more extended and nuanced breakdown of the immunity case on the Divided Argument podcast.

Comments

[Dr. Ed 2]

"without requiring the court to take sides on what happened on Jan. 6. . . ."

THAT'S THE ISSUE -- SCOTUS ought to simply rule that it was not an insurrection and be done with it.

Although you are wrong about Congress leaving both voting and homelessmess to to the states -- Comgress passed the Voting Rights Act but did not pass a Homelessness Rights Act -- and Voting Rights are explicitly enumerated in THREE amendments to the Constitution, while Homeless Rights aren't.

[SRG2]

It's not up to SCOTUS to be finders of fact.

[Dr. Ed 2]

SCOTUS is a finder of facts all the time. Miranda was based on that. Roe and Dobbs as well. All kinds of cases.

I'm talking fact finding in the gross sense -- that there was no "insurrection" and hence no basis for any trial court to find if anyone was involved in it.

For example, if a court were to charge Trump with having aided and abetted a Martian invasion of the US, SCOTUS would be well within its rights to say "what Martian invasion?!?" and to toss the whole thing on 14th Amendment grounds.

[SRG2]

For example, if a court were to charge Trump with having aided and abetted a Martian invasion of the US,

Courts don't charge. Prosecutors do. And it would have required a grand jury indictment...

As far as insurrection, it lies within the power of states to make such a determination. The SC could not reasonably overturn a jury's finding of fact, though the current lot would attempt to parse the judge's direction to the jury to wriggle out of it.

[Noscitur a sociis]

Dismissing a federal prosecution on fourteenth amendment grounds.

Remember, this guy doesn’t make things up!

[MollyGodiva]

Quite the opposite. SCOTUS should have upheld the ruling that it was an insurrection...because it was. Trump spearheaded an attempted coup and that does make him ineligible.

[Brett Bellmore]

As demonstrated by his criminal conviction for insurrection? Oh, wait, he's never been charged with it, and thus never been convicted.

You can't rule somebody guilty of a felony, you have to actually convict them, in a full trial with appropriate process.

Still less can a state court simply rule somebody guilty of a federal felony.

[JoeFromtheBronx]

14A, sec. 3 is not a criminal provision.

You don't have to "convict" someone to find them disqualified under its terms. It is not a "crime." You don't have to determine the person guilty beyond a reasonable doubt via a unanimous jury.

This is what the text and history say. The original people disqualified under its terms were not found guilty in court. A guilty verdict is one way to do it. See the one WWI case.

Trump was charged with crimes that overlap with what historians and legal scholars (including originalists) note is covered. But, that is a criminal indictment. Like impeachment, the insurrection provision is a separate matter.

[Brett Bellmore]

Demonstrating that you didn't understand the Supreme court decision.

The 14th amendment authorizes Congress to set up the process for deciding somebody is ineligible under Section 3; You've got an enabling legislation clause, after all. Congress could have set up a civil process to do this, in fact they did shortly after the 14th amendment was ratified. It was, notably, a federal civil process; You think the Reconstruction Congress trusted the Southern state courts with that power?

But that legislation got repealed most of a century ago, and the only remaining federal enabling legislation is the federal felony of insurrection.

So, as the federal law currently stands, the only way somebody running for federal office can be disqualified under Section 3 is by convicting them of insurrection. In a federal court.

States have inherent authority to set the qualifications for state office, so this reasoning doesn't apply to state offices. Only federal.

[Z Crazy]

I think Brandon's disqualified for aiding and abetting the Taliban in 2021.

But enforcing disqualification has to be done by the method prescribed by Congress. I don't know if Congress could authorize states to disqualify persons from the presidency or other federal offices.

The truth is, they didn't.

[Brett Bellmore]

As I read it, they could. They just haven't.

[MollyGodiva]

SCOTUS made up the requirement for Congress to set up a process in order for 14A3 to work.

[Michael Ejercito]

Maybe you should read 14A5.

[MollyGodiva]

14A5 says Congress has the power to enforce 14A, not that 14A is void unless Congress acts.

[Brett Bellmore]

Strangely enough, the Congress that originated the 14th amendment seemed to think they needed to pass enabling legislation. And you think maybe the Reconstruction Congress would have been comfortable with Southern state courts deciding who could run for federal office? No risk they'd have abused such a power?

[Dr. Ed 2]

Brett, I don't think they would even have trusted the NORTHERN state courts with that power.

[Alpheus W Drinkwater]

Obviously, saying that under the specific circumstances at the time Congress "seemed to think they needed to pass enabling legislation" in no way proves that the amendment can only be enforced through Congressional legislation. Your position, and the position taken by SCOTUS, has no basis in text or history. It's entirely made up.

[Brett Bellmore]

Text, (The presence of an enabling amendment.) and history, (Actual practice by the same people who authored the amendment.) are exactly what it has a basis in. You just don't want them to be decisive.

[Kazinski]

It wasn't SCOTUS that made up the requirement, it was Chief Justice Chase riding circuit in re Griffin.

If that judgement had been appealed it would have been conclusively settled then, but instead the Administration and Congress conformed to his decision and passed the Enforcement Act of 1870. Which also seems to settle the question conclusively, or liquidate it if you will.

[MyWag13]

SCOTUS legislated from the bench.

14th Amendment, Section 5:

The Congress shall have power to enforce,
by appropriate legislation,
the provisions of this article.

14th Amendment,
Section 5 does NOT say:

The Congress shall have
sole power to enforce,
by appropriate legislation,
the provisions of this article.

[JoeFromtheBronx]

I’m stating what the 14A says via text and tradition.

The Supreme Court wrongly decided the issue.

The fifth section covers the whole amendment. States can pass laws to enforce due process et. al. And they do.

The concurrence reminded the plurality of that. It gave Congress additional powers to supersede state law. Which is not here. It could. The fears of the Supreme Court could have been addressed by Congress passing a new law on the question.

The same “enabling” clause is in the 13A. The 13A was self-executing. States also can execute it.

States did have the power to enforce. Before the 17A, for instance, state legislatures selected senators. The insurrection provision was a qualification they had to factor in. States also enforced the insurrection provision during Reconstruction.

Originalist-laden discussions covered this stuff.

[JoeFromtheBronx]

"plurality" should be "per curiam"

[Kazinski]

When Congress has authority to craft a remedy and they do so, then there is a presumption that is the sole remedy available.

See Sea Clammers Doctrine.

[David Nieporent]

That is not what Sea Clammers said, not to mention that this is merely a canon of construction, not some sort of constitutional rule. Sea Clammers was based on the idea that Congress had specified "unusually elaborate enforcement provisions" in one statute. Not merely that it had specified a remedy.

[Kazinski]

Section 5 gives Congress the authority to decide whether it was criminal or civil, in the early days after ratification they came up with a civil procedure enforced by US Attorneys against federal office holders, not state officials.

In 1948 they repealed the Enforcement Act of 1870, and passed the Insurrection statute making it a criminal law, and providing 10 years of incarceration AND disqualification for Federal Office.

Is there anything in Section 5 you can point to that indicates Congress couldn't enforce Section 3 criminally? And just to underscore the point there were also criminal sanctions in the 1870 act.

What you really seem to be saying is you don't think they have evidence beyond a reasonable doubt to charge Trump criminally for insurrection.

[David Nieporent]

Section 5 gives Congress the authority to decide whether it was criminal or civil, in the early days after ratification they came up with a civil procedure enforced by US Attorneys against federal office holders, not state officials.

No, they didn't. Quo warranto is not something they "came up with." It was a common law remedy that always existed. What Congress did in the statute you refer to was make it mandatory for U.S. attorneys to employ that remedy against insurrectionists.

[Kazinski]

Quibble away. Congress's remedy was to have US Attorneys use the quo waranto process to enforce Section 3, they changed the remedy to require a conviction.

[David Nieporent]

They did no such thing. At no point did Congress say a conviction was required for anything (other than criminal punishment, of course). Moreover, A14S5 gives Congress the power to enforce A14S3; it does not give Congress any power to limit enforcement of A14S3.

[Mark Bahner]

“Quite the opposite. SCOTUS should have upheld the ruling that it was an insurrection…because it was.”

Donald Trump wasn’t charged with insurrection; whether he did or did not engage in insurrection was irrelevant to this decision.

[Dr. Ed 2]

So a politican gives a speech and thugs a mile away have a riot?

And that's a very dangerous precedent.

When you look at what is likely to happen in Chicago next month, under your definition, a Trump DOJ could charge absolutely everyone attending the DNC Convention with "spearheading an attempted coup" and hence ineligible to hold office. That'd be all the Dems in Congress, all the Dem Governors, the Dem Mayors, etc.

Essentially every elected Democratic politician above the level of dogcatcher thrown out of office and ineligible to ever run again.

Trump 2016 wouldn't do that. Trump 2024 likely would if he could -- and do you want him able to do it???

[David Nieporent]

under your definition, a Trump DOJ could charge absolutely everyone attending the DNC Convention with “spearheading an attempted coup” and hence ineligible to hold office.

I have no idea what "definition" you think would lead to that result, but of course Trump could try to convince a grand jury of that, and if he did, could then try to convince a jury of that. That's the way criminal prosecutions work.

[Brett Bellmore]

"So a politican gives a speech and thugs a mile away have a riot?"

More like, a politician gives a speech, and thugs a mile away start plotting a riot months earlier. Remember, the Proud Boys got convicted in court of planning that break in, and started it while Trump was still talking.

Literally, the only people in government we have any evidence were responsible for that break in work in the FBI.

[BillyG]

You're claiming Republicans stages an insurrection and left their guns at home? Seriously?

[Brett Bellmore]

But that's a fact bound determination requiring a criminal trial, which has never occurred, because nobody has been charged with insurrection. So the process never got far enough for Trump's factual innocence in the matter to be relevant.

The Court's point was simply that you can't treat somebody as guilty of a crime they haven't been convicted of, and insurrection is no exception.

[David Nieporent]

The Court’s point was simply that you can’t treat somebody as guilty of a crime they haven’t been convicted of, and insurrection is no exception.

That is a true statement. But disqualifying someone from office for insurrection is not treating someone as guilty of a crime. Throwing someone in jail is treating someone as guilty of a crime.

And, no, you've confused your personal view with that of the Court's. The Court's (incorrect) point was that Congress had imposed such a requirement, not that such a requirement was in the Constitution. Pursuant to the Court's ruling, Congress could have authorized Colorado to do what it did — disqualifying Trump without a conviction.

[Brett Bellmore]

"But disqualifying someone from office for insurrection is not treating someone as guilty of a crime."

It IS treating somebody as guilty of a crime, because under the only existing enabling legislation, that disqualification is only a consequence of a criminal conviction. So imposing it IS treating the person as guilty.

I spent months getting grief over my prediction of how the Court would rule on 14th amendment disqualification, and I take great satisfaction in the fact that it went down EXACTLY as I predicted. And now you're lecturing me that I don't understand the ruling I predicted in detail.

[Mark Bahner]

"THAT’S THE ISSUE — SCOTUS ought to simply rule that it was not an insurrection and be done with it."

The indictment does not charge Donald Trump with "insurrection".

[David Nieporent]

THAT’S THE ISSUE — SCOTUS ought to simply rule that it was not an insurrection and be done with it.

SCOTUS doesn't get to "simply rule" on random things that you're curious about. Also, since it obviously was an insurrection, not sure why you'd want the to rule incorrectly.

[Ghost]

You don't have to follow the Supreme Court for very long before you start to notice the rampant hypocrisy in its opinions. You can easily copy and paste a justice's arguments in a previous case that destroy their arguments in a later case.
For a recent example, look at Sotomayor's dissent in the Trump immunity case where she states "The majority calls for a 'careful assessment of the scope of Presidential power under the Constitution.' For the majority, that 'careful assessment does not involve the Constitution’s text. I would start there. The Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents." But that same argument can be used to undercut a constitutional right to abortion, which she supports.
Likewise, the originalist judges will rely on history and tradition, until it doesn't work in a particular case to achieve their desired result and then an entirely different methodology is used.

[JasonT20]

But that same argument can be used to undercut a constitutional right to abortion, which she supports.

There's no mention of parental rights in the Constitution. Does that mean that they aren't constitutionally protected?

[MollyGodiva]

Yes. Parental rights are not constitutionally protected. Parental rights nor anything close is in the constitution.

[Brett Bellmore]

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The problem that abortion rights faced, that parental rights do not, isn't the lack of mention, it's the lack of any history as a traditional right that simply wasn't enumerated.

[JoeFromtheBronx]

Abortion was traditionally not criminalized until quickening.

It also is part of multiple traditional rights involving family life, bodily integrity, and religious liberty (e.g., Jewish women who believe abortion is necessary per their religion or anti-abortion laws violating the Establishment Clause).

Slavery involved forced breeding and robbing women of the ability to control their reproductive liberty. Control of fertility is necessary for a person’s equal place in society.

[mike petrik]

The fact that something was not criminalized in the late 18th century does not render it a fundamental right immune from future criminalization. The proper question is whether the Framers and American society generally would have understood parental rights or abortion rights as fundamental and therefore protected. The answer is plainly yes and no, respectively, as any honest historian or legal scholar knows.

[JoeFromtheBronx]

"Honest" historians and scholars have a different view on these questions.

The first point is true as far as it goes.

I'm not resting on the point. Thus, for instance, the lack of a gun regulation in 1791 doesn't mean having a gun regulation of that type is unconstitutional.

The best question is what constitutionally appropriate today using all we have learned, not trying to determine what people in 1787 and 1868 believed.

All the same, historians have shown that abortion was basically left to private choice in 1787. It was more regulated by 1868 though how is complex. There was still some fundamental right in certain cases. The world is much different now, so their balancing is not the one appropriate today.

[Brett Bellmore]

"Thus, for instance, the lack of a gun regulation in 1791 doesn’t mean having a gun regulation of that type is unconstitutional."

Yeah, you're kind of ignoring the key point here, which is that gun rights are actually mentioned in the Constitution, and abortion rights aren't. So gun regulation defaults to being unconstitutional, you need historical analogs to provide a basis for an exception to that default.

While there's no such default in the case of abortion, because there's no language in the Constitution to derive such a default rule from, unless it's the 9th amendment. Which,

1. The courts refuse to enforce anyway.
and,
2. Enforcing it would require evidence that abortion WAS treated as a right in the relevant era. Not just lack of evidence that it wasn't. Given laws outlawing post-quickening abortions, you don't have that evidence.

[JoeFromtheBronx]

I'm stating a rule: just because something was legal in 1791 by itself is not determinative. It can be notable.

I did so in response to a comment about this. You want to make another point and talk about gun rights.

Courts do enforce the 9A. The 9A says there are unenumerated rights. Courts protect unenumerated rights. The Supreme Court a few times (including in Planned Parenthood v. Casey) referenced the 9A for the principle.

Enforcing it would require evidence that abortion WAS treated as a right in the relevant era. Not just lack of evidence that it wasn’t. Given laws outlawing post-quickening abortions, you don’t have that evidence.

There is evidence that abortion was treated as a right. Outlawing it post-quickening is not determinative any more than bans on post-viability abortions under Roe meant there was no right to abortion.

There is historical evidence that control of fertility and reproduction was broadly seen as a private matter. Geoffrey Stone's book went into detail, for those who want a historical account.

Anyway, the "relevant era" is today. Today, all things considered, abortion rights should be constitutionally protected.

[mike petrik]

Your “all things considered” is a legislative task, not a judicial one. Please provide some of this “evidence” that the deliberate killing of a fetus was intended to be or understood as a constitutionally protected right at any time before the latter half of the 20th century. You know you can’t, which is why you quickly pivot to the progressive’s favorite legal theory, it “should be.”

[Brett Bellmore]

Quickening was the first point at which pregnancy could be objectively determined, given the medical technology of the day. It would have been pointless to outlaw it prior to that point, because you'd never be able to prove the crime happened.

[JoeFromtheBronx]

"at which pregnancy could be objectively determined"

No. People were about to "determine" a woman was pregnant before then. If a woman took a potion and miscarried a fetus before quickening, it was clear she was pregnant.

The issue was that you could not tell if the embryo or fetus was alive without quickening. The changing reasons for laws underline the problems with originalism.

Anyway, whatever the reason, abortion was not illegal before then. Also, from ancient times, there were understandings that a "person" was not present early in pregnancy. Various religious and scientific reasons were given for this. And, the laws often reflected it.

[JoeFromtheBronx]

People were about to “determine” a woman was pregnant before then.

“about” should be “able”

[Bob from Ohio]

"Jewish women who believe abortion is necessary per their religion"

A belief only discovered 5000+ years after Mt. Sinai! Conveniently!

No such "necessity" exists. Halakha permits abortion in very limited circumstances, it does not require it.

[JoeFromtheBronx]

The historical Moses would have existed around 1250 BCE.

Are you from the future?

Jewish people have shown this belief did not just arise. The necessity is an individual religious belief.

Your disagreement is duly noted.

[Michael Ejercito]

What did St. Mary learn from her rabbis in the Nazareth synagogue?

[Bob from Ohio]

"Jewish people have shown this belief did not just arise. "

Oh, a few have SAID so, no one can "show" it.

[JoeFromtheBronx]

They provided evidence. Your disagreement is duly noted. Religious questions are greatly disputed.

[Social Justice is neither]

Flat earthers also provide evidence, same weight and validity.

[Rev. Arthur L. Kirkland]

Bob from Ohio is not a fan of newly claimed beliefs . . . except with respect to gun rights, government support of religion, absolute presidential immunity, the "major questions doctrine," limitless special privilege for superstition, presumptive presidential immunity, corporate rights . . .

[MyWag13]

Hear, Hear !!!

[MollyGodiva]

SCOTUS made up the requirement that rights need to have a long term basis in US history.

Also, noticing that parental rights is not in the constitution and thus not a constitutional right then using enumerated rights to deny parental rights.

Also I don't believe in parental rights since that commonly tramples on the rights of the child.

[Rev. Arthur L. Kirkland]

I have never understand a preference for parental rights against the rights of children. Why would a decent, reasoning person support parents who harm their children with unreasonably substandard parenting? Is there something in the Bible (or in Harry Potter, or in Mother Goose) that privileges parents over children?

[JesusHadBlondeHairBlueEyes]

You cannot have sexual access to other people's children, Rev.

That's one of the things that is so sickening about you homosexuals.

[Rev. Arthur L. Kirkland]

This guy asserts I am gay.

Another Volokh Conspiracy stalwart claims I am Jerry Sandusky (a lifelong Republican and longtime part of the central Pennsylvania conservative power structure).

A third Volokh Conspiracy fan has accused me of child molestation.

Another Volokh Conspiracy supporter has ascribed vividly detailed homosexual acts to me.

Another Volokh Conspiracy fan -- and maybe even a Conspirator; can't recall with precision -- has accused me of antisemitism.

Other commenters at this blog have accused me of being a communist and a socialist.

Your white, male, right-wing blog attracts quite a concentration of lying, childish dumbasses, Volokh Conspirators. Plenty of unreconstructed bigots of every stripe, too. Not to mention the antisocial, disaffected, spectrum-inhabiting, un-American culture war rejects. Are any of you troubled, to any degree, by your role in this flaming shitstorm?

[Vryedni]

You're right. Those commenters are vile, unreconstructed bigots. But where did you get the idea that their bigotry excuses yours? I'd bet real money the rationalizations they tell themselves for their bigotry are similar in kind, if not degree, to yours.

[Drewski]

Why would anyone accuse a person who says they'll celebrate the ethnic cleansing of Jews from Israel by eating bacon cheeseburgers and shrimp cocktail of antisemitism? Clearly your only gripe is with the Israeli government, and expelling or killing all the Jews is merely a logically efficient way to stop it.

[Randal]

That’s one of the things that is so sickening about you homosexuals.

Are you fucking serious?

https://media2.salon.com/2009/11/little_darlings.jpg

[Rev. Arthur L. Kirkland]

Gay-bashers are among the worst people in America . . . and an essential element of the target audience of a white, male, right-wing blog with a fading, misappropriated academic veneer.

Carry on, clingers. Your betters will continue to let you know just how far and how long that will be permitted, though.

[Michael Ejercito]

Likewise, the originalist judges will rely on history and tradition, until it doesn’t work in a particular case to achieve their desired result and then an entirely different methodology is used.

In Trump, the Court was asked to apply its immunity jurisprudence.

Immunity was not invented on July 1st. Notably, courts have recognized prosecutorial and judicial immunity, which is absolute.

Other officials have qualified immunity, where the conduct in question is not subject to suit or prosecution unless it violates “clearly established” law. Harlow v. Fitzgerald, 457 U.S> 800, 818 (1982)

But as none of the litigants argued that these prior precedents be swept away, a textualist approach was not available.

[David Nieporent]

Notably, courts have recognized prosecutorial and judicial immunity, which is absolute.

No they fucking haven't and no they fucking didn't. We are talking about criminal law here. There is no prosecutorial or judicial immunity. Not in the constitution and not in statute.

[Michael Ejercito]

I quote you.

https://reason.com/volokh/2024/07/02/justice-sotomayor-on-prosecutorial-immunity/?comments=true#comment-10625678

You will be shocked — if you are very naive — to learn that not only has said prosecutor not been disbarred, but said prosecutor is still working as a prosecutor.
Someone else also made the point of why bother trying Trump for "whining about a stolen election" but not trying Bush or Obama for war crimes.

[David Nieporent]

You did quote me, and yet you omitted the part of my comment where I mentioned immunity. (Oh, wait — I didn't.)

[Mark Bahner]

”But that same argument can be used to undercut a constitutional right to abortion, which she supports."

The Ninth Amendment states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In contrast, the Constitution states, "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

[Stephen Lathrop]

Professor Baude gives the Court too much credit for principle. To establish a record for following principle, you apply it more-or-less uniformly, all the time. If instead, some decisions manifest the principles you announce, and others contradict those principles, that is not a partly-principled approach, it is an unprincipled approach.

[JoeFromtheBronx]

Other than that, how was the play?

The Supreme Court also did not just misstep twice.

The ethical problems can’t be handwaved. The gun case left something to be desired (even if the result was okay). The administrative agency cases were very problematic.

[I can go on.]

Still, misstepping in two cases that go to the core of democracy and the rule of law, well I’m sorry. That’s enough for a “fail” vote in my book. Other than that, how was the play, Mrs. Lincoln?

[mike petrik]

The administrative agency cases are problematic only because you don’t like the results. Larry Tribe has been trying heroically to criticize them, but his criticisms have been hysterically incoherent. Defending Roe gave him good practice though.
The ethics accusations are complete unmitigated rubbish relying on entirely newly fabricated pearl-clutching standards that never applied to anyone else from Douglas to Ginsburg.

[JoeFromtheBronx]

The administrative agency cases are problematic only because you don’t like the results.

Yes, I think the results are based on bad law. I don't like that.

Justice Fortas was pushed off the Court for a lot less. Douglas was subject to an impeachment investigation. All three are dead but if Ginsburg should have resigned (maybe c. 2012), fine.

[mike petrik]

Less? You need to take another look at the record. But while the accusations at least had a legal nexus to his role, the push to remove him were certainly politically motivated, unprincipled, and improper.

[Rev. Arthur L. Kirkland]

If your god tells you that Thomas and Alito have acted ethically (rather than as imperial partisans), mike petrik, your god is a paltry piece of shit.

An illusory piece of shit, too.

[Dr. Ed 2]

Joe, when you realize that a good chunk of the country believes the following, perhaps SCOTUS did what was necessary to save the country:

https://americanmind.org/salvo/the-diminishing-likelihood-of-a-fair-election/?utm_campaign=American%20Mind%20Email%20Warm%20Up&utm_medium=email&_hsenc=p2ANqtz-_8O21SI05-FPrDdq5LuHvBWLPKpwWWiBYNYX5ZWD5oYgF12Stkpzl4Nfb15PNxuZTOyBr8HWLl8UF9Dsa3xj0wws0MXA&_hsmi=314305282&utm_content=314305282&utm_source=hs_email

[David Nieporent]

This is breathtaking in its cynicism. Repeatedly lie about an election being stolen, and then cite the fact that people believe your lies as evidence that there's a problem.

[Rev. Arthur L. Kirkland]

This is end-stage flailing by the culture war's casualties.

The bright side is that I expect better Americans to become even less gracious toward the culture war's losers as our society continues to improve against the wishes and efforts of Republicans, conservatives, faux libertarians, and Federalist Society members.

[Commenter_XY]

It is almost as breathtaking as the Russia hoax (for which the Clinton campaign was fined, civilly), David.

[Rev. Arthur L. Kirkland]

Read the Mueller Report, which should be understandable even for a superstitious, disaffected, right-wing culture war reject.

[David Nieporent]

There was no Russia hoax, and the Clinton campaign was fined for reporting to the FEC a passthrough payment to Fusion GPS via Perkins Coie as a legal expense. Not for any "hoax."

Again: setting aside that there was no "hoax" at all, the Steele Dossier is not the same thing as Russian collusion. The Steele Dossier was not the basis for the suspicion of, or investigation of, Trump or his campaign for collusion.

[Commenter_XY]

What SCOTUS ethical problems? I don't see any. I see a lot of pearl clutching and pounding the table, but actual ethical problem....nope.

[Rev. Arthur L. Kirkland]

You also don't see any ethical problems in the West Bank or Gaza, mostly because you are an immoral right-wing bigot who disdains modern America because of all of this damned progress.

You are no problem the culture war isn't already solving, though, thank goodness.

[Stephen Lathrop]

Less-than-consistently principled decision making is one thing. Unprincipled decision making is another. Outright corruption is yet another.

I will shortly celebrate my 78th birthday. This Court is at once the Court least predictable about principle, the most opportunistically unprincipled, and the most corrupt Court I have seen in my lifetime. Living constitutionalism in its heyday was more uniformly principled, more intellectually honest, more constrained, and much less corrupt than this Court has been. I say that as someone wary of living constitutionalism.

How low this Court will rank among the worst in American history will depend on what happens after consequences of its many terrible decisions have become fully manifest. Future occurrences will tell that tale.

We can already be certain that few Courts from the past will rank lower, and maybe none will. What previous Court has displayed this one's malign combination of self-delusion about method, corruption, rank stupidity, disrespect for precedent, and unchecked ambition to invade policy making?

For all the pretense of regard for an august institution, how many who tender that customary tribute actually believe it? What other institution of government has continued to command legitimacy in public regard, after sinking so low?

[Voize]

I will shortly celebrate my 78th birthday.

According to current practice this qualifies you to take a run at the Presidency.

[Commenter_XY]

Ok Boomer. Explains a lot. All of that aside...lathrop, I do hope you have a happy 78th birthday.

Look at the bright side, lathrop. You'll probably be pushing up daisies by the time all the bad aftereffects from these decisions actually come to pass.

Younger schlubs like me will have to deal with it. 🙂

[Riva]

Trump v US is not unprincipled, you just don’t like the principles.

[MoreCurious]

Try reading the opinion, then get back to us to us on what the word "unprincipled" means to you.

[David Nieporent]

The only principle Riva has is that his orange god can do no wrong.

[Mr. Bumble]

...and the only "principle" you seem to have is that "the orange god" can do nothing but wrong (along with anyone who supports him).

[BrotherMovesOn]

I hope your ankle is healing nicely DMN.

[Michael Ejercito]

It trusts juries to handle fines for securities fraud but not punishment for abuse of the presidency, even though the Constitution trusts juries with both.
The Court does not trust juries to handle money damages for abuse by cops.

https://www.forbes.com/sites/nicksibilla/2019/09/17/federal-court-cops-accused-of-stealing-over-225000-have-legal-immunity/

None of the parties asked the Court to swerep away its immunity jurisprudence.

[Bob from Ohio]

Baude still choking that 14A chicken.

[Rev. Arthur L. Kirkland]

Baude is still choking that 14A chicken.

Your obsolete, ugly, disgusting political preferences move a day closer to cultural irrelevance and practical collapse -- along with the desolate stretch of can't-keep-up Ohio in which you reside -- every day.

Everybody has problems.

[ReaderY]

Completely agree. i think Trump v. Anderson is the worst decision although both are bad. The basic problem is that in tossing the special and exclusive role of the states in controlling election by claim that the basic principles of all federal elections are the same – a position totally at odds with the Constitution’s text and history – the decision opens the door to disfranchise citizens from elections the Constitution actually does entrust to them.

Chiafolo v. Washington had held that in the special context of a Presidential election, an “elector” is a purely ceremonial role with no actual decision-making power; electors must vote as ordered or else. In holding that the same principles apply to all federal elections, Trump v. Anderson opens the door to a future Supreme Court ruling that the fact that citizens are designated the electors for (for example) Senate elections doesn’t mean they have any actual decision-making power. Just like Presidential electors they need to understand they are engaging in a purely ceremonial ritual and must vote as instructed or else. Who instructs them? Since Trump v. Anderson says states have no power over who should be on the ballot, it’s open to a future Supreme Court to say that because elections eminate from the frderal comstitution, only federal officials, e.g. the President, can decide this. After all, the “strong federal interests” in uniformity and predictability Trump v. Anderson emphasized are damaged far more by leaving decision-making up to millions of individual voters than by leaving them up to 50 states. Taking these supposed “federal interests” to their logical conclusion, only a single person calling the shots can lead to the necessary uniformity and predictability.

These supposed “federal interests” are totally bogus! Nothing whatsoever to do with the Constitution! Both state appointments and popular elections are inherently chaotic affairs, and the framers specifically INTENDED the rules for presidential elector appointment to vary from state to state

As I’ve said before, the Court seems to be composed of Bayesian originalists. When looking at their priors doesn’t give them the result they want, they are perfectly happy to pull it from their posteriors.

May I recommend just flushing rather than this scatomancy business? It’s much less damaging to the Court’s dignity.

[Riva]

You’re confusing the rulings of the Court with the democrat’s thuggish lawfare tactics. I think Jacobin is a more apt description here.

[MoreCurious]

We know you think you're clever by throwing the word "Jacobin" into as many comments as you can. Maybe you can explain two things for us. (1) What does the word "Jacobin" mean to you? (2) How effective do you think "lawfare" (another of your favorite words) would be if the purported target of the lawfare was an ethical and moral person who complied with the law?

[Riva]

Well I admit President Trump doesn’t have a crackhead bagman son to launder his 10 percent and never took showers with his daughter so perhaps he can’t really compete with the ethical and moral democrat candidate.

[MoreCurious]

Congratulations on winning this week's stupidest comment award! Keep up the good work and maybe you'll be in the running for the award for the entire month of July.

[Rev. Arthur L. Kirkland]

Former President Trump is a criminal, a loser, and a vainglorious, vulgar, boorish, immoral, fat, lying, bigoted, silver-spooned sexual predator.

And, of course, a hero to disaffected right-wing assholes such as Riva.

[JoeFromtheBronx]

Chiafolo v. Washington had held that in the special context of a Presidential election, an “elector” is a purely ceremonial role with no actual decision-making power

The ruling says that a state can bind electors. It does not say that this is obligatory. A state can leave the elector to be independent.

(“we consider whether a State may also penalize an elector for breaking his pledge”)

The two rulings do fit together badly. The insurrection opinion feared problems if a single state or a few states removed a candidate. But, states can affect presidential elections by using their powers to regulate electors.

An attempt was made to do so back in 1800. States have many powers over elections that can affect who wins. This includes such things as ballot rules for third party candidates.

[ReaderY]

A state legislature can pick the electors themselves if it wants. It can delegate the choice to some other body, the electorate being only on e possiblility.

Normally, when a state has a choice between two policies, it can also elect to use a hybrid model incorporating some elements of each.

Splitting the difference so that one body (such as the state legislature or the courts) makes part of the decision and another body (such as the electorate) decide the rest is well within a state legislature’s normal textual constutional prerogatives on a matter the constitution specifically assigns to the state legislature. It’s the kind of compromise stste legislatures make every day.

There ought to be no problem with a state legislature saying that courts serve as a sort of nominating committee selecting candidates they think qualified by applying qualification criteria, and the electorate then selecting among only the qualified candidates.

It’s a perfectly rational manner of selecting electors, just as good as any other so far as the Constitution is concerned. Of course state legislatures get to determine the qualifications of presidential electors. That’s what the power to appoint them themselves give them. The Supreme Court handwaving otherwise is complete nonsense with no basis in the Constitution.

[Riva]

So a decision rooted in the separation of powers, literally the defining concept in constitutional jurisprudence since Marbury, and that is consistent with the historical practice in this republic since its founding is somehow beyond our constitutional traditions? It appears Baude never bothered to read Trump v US before writing his OpEd.

[ReaderY]

It is not the job of the Court to opine on our “constitutional traditions.” That’s the job of a House of Lords. It is their job to interpret a written constitution.

[Riva]

Uh, the Court’s decision is consistent with the constitution, precedents, and historical practice since the founding of this republic. And, just so you know, it is the job of the. Court to interpret the constitution. You might want to read Marbury.

[Rev. Arthur L. Kirkland]

If this discussion involves the absolute presidential immunity pronouncement, the "consistent with the constitution, precedents, and historical practice since the founding of this republic" rubbish is silly. The current Court's decision fashions new law from whole cloth and spits on originalism . . . which is customarily what originalism deserves.

Add this one to the pile of Roberts Court decisions headed toward an early retirement.

[David Nieporent]

It is not rooted in the separation of powers. Immunity has nothing whatsoever to do with the separation of powers. More importantly, it's not rooted in the text of the constitution, which is what the Supreme Court is actually supposed to be interpreting.

The Supreme Court has expressly ruled that there's no immunity from criminal prosecution in the constitution. The judiciary — a separate branch of government — possesses no criminal immunity. The legislature does, but only because the constitution expressly says so. If "separation of powers" = "immunity," then the Speech & Debate clause would be superfluous and the repeated rulings that judges don't have criminal immunity would be wrong.

[Brett Bellmore]

" Immunity has nothing whatsoever to do with the separation of powers."

That's going too far: A certain amount of 'immunity' is inherent in separation of powers, in the sense that each branch cannot punish the others for decision making within their core authority, and still maintain such a system.

Now, through impeachment Congress can breach this immunity, but that's because we don't have a system of co-equal branches, we have a system of mild legislative superiority.

[David Nieporent]

That’s going too far: A certain amount of ‘immunity’ is inherent in separation of powers, in the sense that each branch cannot punish the others for decision making within their core authority, and still maintain such a system.

Assuming for the sake of argument that this statement is true, that doesn’t make it an immunity. Let’s say that Congress passes a law saying, “A president pardoning members of his or her family shall be a felony punishable by 5 years in prison and a $50,000 fine.” While I do not know that the constitution compels the conclusion that this law is improper, I will accept that for the sake of argument. But the result is not that the president is ‘immune,’ but that the law itself is unconstitutional. (Remember that immunity says something very different: that the act is illegal but the immune person can’t be punished for it.)

And the reason it's unconstitutional is indeed because the constitution expressly commits the pardon power solely to the president, and therefore Congress cannot limit when he can use it. But with very few exceptions,¹ the constitution does not commit the power to undertake other official acts solely to the president, so there's no basis for saying Congress cannot criminalize them.

¹Again: nominations, negotiating treaties, signing/vetoing bills, a few other things.

[JoeFromtheBronx]

” the constitution expressly commits the pardon power solely to the president, and therefore Congress cannot limit when he can use it”

Can President Biden establish a policy that all Catholics, but only Catholics, who were convicted of marijuana charges are pardoned? The policy expressly says he is doing it since Catholics are God’s people and deserve it while Jews are not.

There should be some way that the Bill of Rights and later amendments limit the pardon power. I will just note for others that there is an exception for pardons in the case of impeachment.

Also, POTUS has the power to pardon. The word “sole” isn’t there. The wording is “power” and not “sole” power or "the" power.

The word “sole” is used in other contexts to singularly grant power.

I’m not sure why Congress cannot pass a law setting up a territorial pardon and commutations board to pardon people.

[David Nieporent]

Can President Biden establish a policy that all Catholics, but only Catholics, who were convicted of marijuana charges are pardoned? The policy expressly says he is doing it since Catholics are God’s people and deserve it while Jews are not.

I think he can, subject only to impeachment. (Are you arguing that such a policy could be criminalized, or that it could be enjoined, or both?)

I’m not sure why Congress cannot pass a law setting up a territorial pardon and commutations board to pardon people.

Maybe it can, maybe it can't, but that's a different aspect that I wasn't addressing. When I said "sole" in that context, I meant that his power to do so wasn't subject to any other branch's control. Virtually all powers in the constitution are shared, not separate (despite one loon here's repeated mindless repetition of the phrase "separation of powers"). The president can make treaties, but they don't come into effect w/o senate action. He can nominate people, but they don't come into office (except for recess appointments) w/o the advice and consent of the senate. He is CinC of the military, but Congress has the power to make rules regarding the army and militia. Etc. But (even if Congress also had a pardon power) the president's pardon power is his alone; his exercise of that power does not require consultation with or approval of any other branch. The moment he grants a pardon, it comes into effect, irrevocably.

[JoeFromtheBronx]

I think he can, subject only to impeachment. (Are you arguing that such a policy could be criminalized, or that it could be enjoined, or both?)

I'm arguing that the pardon power can be applied in a way that violates some constitutional amendment & Congress does have the power to enforce them. Some general enforcement, including criminal in nature, law would apply to the POTUS too.

But (even if Congress also had a pardon power) the president’s pardon power is his alone

Your reply helpfully clarifies that "alone" here is in a limited way.

But, my BOR hypo leads me to wonder about the limits of the president's discretion to pardon. It is not a matter of "consultation" or "approval." I do think something like a ban on secret pardons or the like may be acceptable.

I think saying the POTUS has "sole" power over pardons leads to possible confusion. Not only is it not clear that only presidents get to pardon, but there are possible regulations of pardons conceivable.

[Drewski]

I don't think Biden could establish a formal policy to that effect but he could actually issue such a pardon. Who would have standing to challenge it?

[JoeFromtheBronx]

Jewish people who have marijuana offenses?

[David Nieporent]

How would that meet the standing test? They're not harmed by the fact that other people were pardoned.

And even if you characterize the harm as not receiving a pardon — which is dubious since there's never a right to one — that is not redressable; a court cannot order the president to pardon someone.

[Riva]

Given your inability to understand separation of powers, I’m not even sure we’re both referring to the same constitution. My comments pertain to the U.S, Constitution. Not really sure what your comments refer to.

[bernard11]

IOW, the court relies on text and originalism when they produce results it likes, and quickly abandons them otherwise.

I guess one thing to come out of this is that those alleged "principles" are revealed to be a sham.

[ReaderY]

Bayesian originalists. They usually look to their priors. But when their priors won’t do the job, they look to their posteriors.

[Riva]

They’re actually looking to the constitution, just so you know.

[Randal]

Oh? Where does the Constitution say that the President is criminally immune?

I do see the part where insurrectionists are disqualified, but your guys on the court thought that part of the Constitution didn’t count.

Hm. You seem to be completely wrong (as usual, Riva). They were in fact looking to their posteriors all along.

[Rev. Arthur L. Kirkland]

Your second sentence wobbles near its end, Prof. Baude. Might a word or two have been omitted?

[Will Baude]

Fixed, thanks!

[Rev. Arthur L. Kirkland]

I figured your thoughts deserved to be understood as intended.

[Kazinski]

Baude certainly got this right:
“It believes that lower courts and the Justice Department have succumbed to a version of Trump derangement syndrome, which is said to afflict so many liberal elites and even Never-Trump conservatives.”

And while I don't think the Supreme Court should be the arbiter of all controversies, abuse of the legal system seems to be a subject matter that's in their ballpark. And the Roberts court has made it a thing to keep the courts from injecting themselves in election decisions.

“It trusts states to handle the homelessness crisis but not ballot access for insurrectionists, even though the Constitution trusts states with both.”

The court ruled a couple of decades ago that it didn’t trust the states to handle ballot access for ‘term limited’ career congressmen, so that’s is that.

But ultimately the while the court did not display trust in the states to handle the ballot access question, its the states not trusting the voters enough to let them make the decision.

If the voters were doing as they’ve been told, then none of these cases would be much of an issue.

[Rev. Arthur L. Kirkland]

"And the Roberts court has made it a thing to keep the courts from injecting themselves in election decisions."

That's bullshit, although you have vividly demonstrated you're dumb enough to believe it.

Carry on, clinger. Until replacement.

[Matt F]

A hypothesis: Roberts decided that the Court’s interests require lenience with Trump, because he concluded that Trump would win in November, because he saw Biden’s decline well before the debate, at Justice O’Connor’s funeral last December.