The Volokh Conspiracy
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President Biden's and the Democrats' Assault on the Supreme Court and the Rule of Law
Democrats tried to alter unconstitutionally the membership of the Supreme Court; they extorted Facebook into censoring free speech; they issued presidential executive orders unsupported by statute; and they pushed unprecedented prosecutions of Biden's predecessor in office, and his 2024 opponent, in the presidential race.
Democrats are accusing President Trump of undermining judicial independence by not following court judgments in immigration cases. Put aside that, as of yet, it is far from clear that any judicial orders have been violated. Even under the worst assumptions, what Trump is doing to the independence of the federal courts is far less serious than what the Biden-Harris Administration tried to do to the independence of the federal courts.
On April 9, 2021, President Biden created a "Commission" to examine "reforming" the "membership" of the U.S. Supreme Court. This action alone is a more serious threat to judicial independence and to the rule of law than are any of the actions with respect to the courts taken so far by President Trump. Imagine how the Democrats would react if President Trump were faced with a liberal Supreme Court majority and therefore created a Commission to examine "reforming" the "membership" of the Supreme Court. Democrats would say fascism was around the corner.
Among the ideas the Biden Commission seriously considered were imposing 18-year term limits on Supreme Court justices by passing a statute. This is an idea which I once favored for policy reasons, but which I concluded decades ago in a law review article could only be done by a constitutional amendment. I have subsequently concluded that 18-year term limits for Supreme Court justices are also a bad idea, as a matter of policy, because every two-term president would get four Supreme Court appointments, which is almost always enough power to change the jurisprudential balance on the Supreme Court.
Nonetheless, after Joe Biden withdrew his presidential candidacy last summer because of his dismal performance in a nationally televised debate, he gave a speech in Texas endorsing a statute term limiting the Supreme Court justices (a proposal that was understood as calling for legislation, not a constitutional amendment, in part because in the same speech Biden called for a constitutional amendment to overturn the Supreme Court's presidential immunity decision in Trump v. United States (2024) while not calling for a constitutional amendment to change the membership of the Supreme Court). Senator Sheldon Whitehouse's bill to do this provided for eliminating the Senate filibuster as to his 18 year Supreme Court term limits bill. Vice President Kamala Harris, who became the Democratic Party's nominee for president, immediately endorsed Joe Biden's plan for statutory court packing via term limits. As Senator Whitehouse's bill makes clear, the plan was to eliminate the Senate filibuster and ram the term limits, i.e., court packing, through both Houses of a narrowly divided Congress despite the absence of any popular mandate to make such a sweeping change, which would have trashed the rule of law and demolished the independence of our life tenured judiciary.
The size of the Supreme Court has been fixed at nine justices since 1869, 156 years of our 236-year history as a constitutional republic. An exhaustive survey by University of Wisconsin law professor Joshua Braver conclusively demonstrates that there is quite simply no tradition of Supreme Court packing or radical membership changes in American constitutional history. President Biden's actions and speeches after he withdrew from the presidential race, which were endorsed by Kamala Harris, were a flagrant attack on the independence of the U.S. Supreme Court and on the rule of law itself. They were un-American and smacked of the behavior that goes on in banana republics like Argentina, which are devoid of the rule of law.
Under Biden's proposal in July 2024, a new seat on the Supreme Court would be created by statute, and not by a constitutional amendment, for every Supreme Court justice who has served for 18 years or longer at the beginning of a President's first and third year in office. Once a justice was confirmed to that new seat, any justice who had served for 18 years or longer would be barred under Sen. Whitehouse's bill from hearing any case in the appellate jurisdiction of the Supreme Court. Such justices would be unconstitutionally confined to hearing cases only in the original jurisdiction of the Supreme Court or cases in the inferior federal courts, unless they resigned.
The Court would be "packed" because the number of justices would increase beyond the nine who have served since 1869, and justices who have served as "Judges of the supreme Court" would be disqualified from hearing cases in the Supreme Court's appellate jurisdiction. Had Kamala Harris won in November 2024, and had a 50 to 50 Democratic Senate with a Democratic House of Representatives been elected, as could easily have happened, Justice Clarence Thomas and Chief Justice John Roberts would have been forced out of office in the first and third year of Kamala Harris's presidential term.
Apart from the unwisdom and un-Americanism of partisan court-packing, the plan is unconstitutional. Congress's supposed power to term limit or pack the Supreme Court comes from a clause in the Constitution which empowers Congress "To make all Laws which shall be necessary and proper for carrying into execution the judicial Power of the United States." This clause allows Congress to pass the rules of federal procedure. It allows Congress to create new judgeships and to regulate federal court jurisdiction to some degree, just as it allows Congress to create executive offices and cabinet departments and agencies.
But those laws creating judges must be "necessary and proper for carrying into Execution" the judicial power, not "for undermining the judicial power." There are sometimes good grounds for creating new federal judgeships as the caseload of the existing judges gets out of hand, but it is not possible to say with a straight face that the Supreme Court is straining under its caseload, which is roughly a third of where it stood four decades ago. Nor can anyone say with a straight face that Clarence Thomas and John Roberts are suffering from the effects of old age that plague former President Joe Biden.
The Necessary and Proper Clause does not allow Congress and the President to destroy the third co-equal branch of our federal government or to create two Supreme Courts when the Constitution says that there shall be only one. Court packing by statutory term limits is unconstitutional, and if such a bill is ever enacted into law, it will be the duty of the Supreme Court to hold it unconstitutional.
This was a very serious threat to judicial independence and the rule of law. Certainly, nothing President Trump has done so far comes even close.
Statutorily imposed term limits, for their part, would have applied to "Judges of the supreme Court" whose offices are critically created by the Constitution itself, and not by federal statutes. Article II, Section 2 of the Constitution specifically says that: "[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint … Judges of the Supreme Court ……" "Shall" means "must," and so the Constitution itself creates the offices of "Judges of the supreme Court," and it orders the President to fill those offices. Moreover, Article III of the Constitution specifically adds that "The Judges, both of the supreme and inferior Courts, shall hold their offices during good Behavior."
Congress can term limit the time during which Supreme Court justices serve as inferior court judges, when they sit by designation on the inferior federal courts, because it was Congress, not the Constitution, which gave Supreme Court justices this dual office. Hence, it was constitutional for Congress to eliminate circuit-riding by Supreme Court justices. But Congress cannot legislate as to the office of "Judge of the supreme Court," which the Constitution both creates and grants life tenure to.
Likewise, Congress cannot prevent "Judges of the supreme Court" from hearing cases on the Supreme Court's appellate docket because Article III of the Constitution provides that "The judicial Power of the United States, shall be vested in one supreme Court" and that that power "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" as well as to eight other categories of Cases or Controversies.
Congress's only power to regulate the appellate jurisdiction of the Supreme Court is to make good housekeeping rules for how the Supreme Court exercises its appellate jurisdiction. Congress may not create two Supreme Courts: one of which hears critically important appellate jurisdiction cases and the other of which hears only trivial original jurisdiction cases. The opening words of Article III could not be clearer in saying that Congress may create "one" and only "one" Supreme Court.
So, this was the first and most flagrant Biden Administration violation of the rule of law and attack on judicial independence.
Then there was the extortionate threat that the Biden-Harris Administration made in Murthy v. Missouri (2024) to Facebook, Meta, and YouTube that the Administration would bring an antitrust lawsuit against these companies to break them up unless they censored free speech, including truthful information, related to Covid-19, election integrity, and other topics, under the guise of combating misinformation. Justice Alito's dissent describes in chilling detail this threat to free speech and the First Amendment. The only reason the Supreme Court did not reach the merits was an absence of standing to sue. When it comes to extortion to shut down freedom of speech, the Biden-Harris Administration wrote the playbook.
Another Biden Administration attack on the rule of law occurred in 2021, when the Centers for Disease Control and Prevention (CDC) issued a nationwide moratorium on the eviction by landlords of tenants, allegedly to stop the spread of Covid-19. This was as consequential and uncompensated taking of the private property of landlords as that which occurred in the 1952 Steel Seizure Case. In Alabama Ass'n of Realtors v. Department of Health and Human Services (2021), the Supreme Court held that this was an executive branch abuse of power, because it exceeded any statutory power the executive branch had.
Then, on November 5, 2021, OSHA, spurred on once again by President Biden, announced that his administration would be promulgating a vaccination or test mandate for all private companies with 100 or more employees. This order came at a time when many Americans, especially conservatives, were afraid to be vaccinated. A vaccination mandate is a violation of the right to bodily integrity that can only be justified when there are years of proof that the vaccine works and is safe to take. In National Federation of Independent Business v. Department of Labor, OSHA (2022), the Supreme Court ruled, under the Court's Major Questions Doctrine, that OSHA had exceeded its statutory authority in issuing this sweeping, totalitarian mandate on all American workplaces.
Democrats now complain that President Trump is playing fast and loose with statutory text. They may be right on occasion, as with using IEEPA to raise and lower tariff rates (as I have repeatedly argued), but where were these Democrats a few years ago?
Then, yet again in 2021, the Biden Administration tried to use an obscure portion of the Clean Air Act to get the Environmental Protection Agency to promulgate climate change regulations that would have cost trillions of dollars to comply with. This would have bankrupted the country and greatly depressed economic growth. In West Virginia v. EPA (2022), the Supreme Court struck down these rules as being unauthorized by statute, and as raising a Major Question that must be dealt with by Congress.
And in Biden v. Nebraska (2023), the Biden Administration tried to forgive billions of dollars in student loan debt to help itself politically with younger voters even though Biden must have known that he had no statutory authority to do this. The Administration woefully exceeded its statutory authority to forgive such debt, and the Supreme Court struck down the debt forgiveness plan, again under the Major Questions Doctrine. (The Court correctly recognized that the statutory authority was limited to narrow waivers and modifications in the event of "national emergenc[ies]," such as the 9/11 attack that prompted the enactment of the law.)
And finally, on his last full day in office in 2025, President Biden preposterously declared that the Equal Rights Amendment had been validly ratified and was now the 28th Amendment to the Constitution. This attempt to alter the 236 year-old rule of recognition for Article V changes to the Constitution is a form of "constitutional vandalism," and is contrary to precedents such as Dillon v. Gloss (1921) and Illinois v. Ferriero (D.C. Cir. 2023).
This analysis does not even include President Biden's, and the Democratic Party's, four prosecutions of former President Donald Trump on flimsy charges, plus New York State's outrageous $450 million civil suit against President Trump. Until the Biden Administration, no President had ever prosecuted his predecessor in office for anything. Joe Biden tore up that rule and threw the whole weight of the Department of Justice and the FBI against President Trump who he was running against in the 2024 presidential election. The States of New York and Georgia piled on. As former Judge, and now Stanford law professor, Michael McConnell wrote in the Wall Street Journal, the New York State criminal case, in particular, was a sham and a travesty of justice.
The only charge brought against President Trump that was even plausible was mishandling of classified documents, but former Secretary of State Hilary Clinton had had a private email server that was unsecured at her private home and that could have been easily hacked by the Russians that had classified documents on it. Since Clinton was not prosecuted for this gross breach of mishandling classified information, then-former President Trump should not have been prosecuted for misuse of classified information either. To make matters worse, Attorney General Merrick Garland even appointed an unconstitutional Special Prosecutor to go after Trump, as Judge Aileen Cannon of the District Court for the Southern District of Florida correctly held in the summer of 2024.
No President has posed a bigger threat to judicial independence, to the freedom of speech, to liberty (by woefully misreading federal statutes), or to constitutional norms (like not prosecuting your predecessor in office) than President Biden did. I have spoken out against what I see as the improper actions of the Trump Administration, such as its treatment of Columbia University, its attempt to rescind birthright citizenship, and its exceeding its statutory authority as to tariffs; but I think the Biden Administration's record on following the rule of law and respecting judicial independence is dreadful. To those who fear that the United States is becoming an authoritarian state, thank God that the Biden-Harris Administration is no longer in office.
That being said, I very strongly disapprove of the Trump Administration's behavior toward law firms, its threats to revoke Harvard's tax-exempt status, and its attempts to coerce university speech and mandate curricula. I expect to discuss those lengthy subjects in a later post.
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Next Calabresi article: How it unconstitutional to not rename the Gulf of Mexico.
Sigh.
I was thinking that they got the meds right. Apparently, they haven't.
Stick with it. They might eventually figure out the dose you need.
Since the progs including some here were in favor of the President having such unrestrained power that he could practically destroy the other branches of government at will through stunts like court packing. I don't see why they have an objection to whatever trump is doing from an excessive power angle.
You say progs on here...I think you just mean Kirkland.
I don't recall any "progs" here stating that the executive branch could unilaterally change the number of seats on the supreme court.
I think there is broad consensus that the legislature can change the number of seats on the court (and has in the past although not recently). Maybe I'm wrong about the consensus part, but the constitution and historical precedent seems pretty clear that congress can add or subtract seats on the court.
Adding seats would be a heavy lift, and basically impossible in the current political climate, but not an example of the "President having such unrestrained power that he could practically destroy the other branches of government at will" or whatever emotionally laden (but untethered from reality) language one might employ.
Oy - good point. I was reading 'could' as 'should.'
Yeah, most everyone thinks that's within the power of the legislature.
I do not understand this argument from Calabresi at all. There have been, at my count, 8 Judiciary acts brought by Congress to set the number of seats on the Supreme Court. The list goes by date and by number of seats assigned
1789 - 6 seats
1801 - 5 Seats (this was a depacking act to limit Jeffersons impact on the court)
1802 Jefferson and colleagues repeal the 1801 act and restore the number to 6
1807 - 7 seats
1837 - 9 seats
1863 - 10 seats ( to match the number of district courts)
1866 - 7 seats
1869 - 9 seats (to again match the number of district courts)
So it seems pretty constitutional - and procedurally, if not politically, easy - to change the number of seats. There are now 12 geographic courts circuits (a 13th is national), 94 district courts and 13 courts of appeal. Maybe a few more Supreme Court justices to match the number of circuits could be acceptable. Also, why not terms?
To me venting about political numerology is also why there has been no appreciable action on reapportionment in the House of Representatives for over 100 years. Largely, this type of argument has been a Republican phenomenon. Reapportionment of a constant 435 seats along with gerrymandering have created a situation where the lower, "representational house" does not represent the nation at all. It further privileges minority viewpoints.
Let us suppose that Congress had never attempted to specify the number of Judges on the Supreme Court. (I call them Judges because that is what they're called in the Constitution.)
And let us suppose that President Washington had gone right ahead and nominated five people to be Supreme Court Judges, the Senate had then gone along and confirmed them, and then President Washington had appointed them.
Would they have been Supreme Court judges, or not ? It seems to me that they would.
Article III establishes the Supreme Court, and Article II establishes that the President is to appoint Judges of the Supreme Court, with the advice and consent of the Senate. So the office of Judge of the Supreme Court is directly established in the Constitution - it requires no establishment by Congress.
So where can we drum up an excuse for Congress to specify a particular number of Supreme Court Judges ? So far as I can see, the only place is the Necessary and Proper clause. Now, I am quite willing to concede that it is fairly convenient, even useful, and definitely traditional, for Congress to provide this service of siuggesting how many SCOTUS Judges there should be - but does that actually rise to the level of "Necessary and Proper" ?
Which is why I began with George Washington. He - hypothetically - required no guidance from Congress as to how many Judges to appoint to the Supreme Court. If he picked five as a sensible number, and the Senate was hypothetically willing to go along, why is Congressional legislation "necessary" ? The nation would have got a Supreme Court, properly staffed, and good to go, with no legislative intervention required from Congress.
And if it wasn't N&P for President Number 1, then it's not necessary for Presidents 2 et seq either. If President Biden thought that 15 would be a good number, and the Senate was willing to confirm them, then why not ? If The Donald thinks 21 would be good, and the Senate is OK with it, why not ?
I see this as a great opportunity for the Democrats. The Donald is easily narcissistic enough to be delighted by the idea of appointing a dozen more SCOTUS justices. And he'd like a Mulligan for his first term missteps on the SCOTUS appointment front. The Dems should encourage him, because this offers them the quickest path to regaining a SCOTUS majority.
"Which is why I began with George Washington. He - hypothetically - required no guidance from Congress as to how many Judges to appoint to the Supreme Court. "
No, Washington had to wait for congress to pass the Judiciary act of 1789 to determine the number of seats. Washington then filled those seats. There were, apparently, political discussions on the number of seats. Washington had his viewpoint (which unsurprisingly prevailed) and the process of choosing the justice included his requirements that those chosen would support the new Constitution. No riff raff who supported the old Articles of Confederation.
He waited.
But what is your textual argument that he "had to wait" ?
I assume that there weren't yet any seats to fill.
That assumes the conclusion - that President Washington was required to wait for Congress to create some “seats” by legislation.
I’m arguing that the office of Judge of the Supreme Court is already created in Article II. No particular number of such Judges is specified but no particular number needs to be specified.
The President can go on nominating them, and so long as the Senate confirms them, they’re in.
Good thing we have the Internet every time Gaslighto spins up the ole alternate reality machine....
DStraws
So you have no real objection to court packing as long as you get the last move. As I said above "power" baby is the name of the game. So lets have no more tears about the injustice of it all.
Orbital Mechanic
If the GOP were going to "retaliate" to an effort by Democrats to pack the courts, exactly what difference in behavior would you see from what they have done since Obama was elected?
So now please explain is this "retaliation" the Democrats are supposed to fear and what exactly are they supposed to get by tiptoeing to avoid the wrath of the GOP?
bernard11
If "playing by the rules"is the only concern, then what's wrong with court-packing? It too is playing by the rules. Tough.
What do you think that proves?
Its shows that the progs posting here are deeply invested in hypocrisy and double standards - then display a pissed off attitude with their hypocrisy is exposed
1. So you did mean 'should' not 'could.'
2. Do you know what the English word 'if' means?
“ I have subsequently concluded that 18-year term limits for Supreme Court justices are also a bad idea, as a matter of policy, because every two-term president would get four Supreme Court appointments, which is almost always enough power to change the jurisprudential balance on the Supreme Court.”
Only Republican presidents get to do that, apparently. One wonders why the Founding Fathers thought it was a good idea for the President to nominate Justices. Apparently it wasn’t because they ought to be able to effect the “jurisprudential balance” of the Court.
Its so funny pretending that Biden didn't intend to pack the court and only backed down when the trial balloon when over like a lead brick. I guess he (his puppeteers) just went through all the motions as a goof.
He didn't have the votes, so there was no point in taking the political hit for actually pushing it.
You doing a whattaboutism using stuff Biden didn’t do?
Man, desperate times.
No one took Biden's judicial commission seriously. Unfortunately, since a serious conversation on judicial matters could be useful. The idea it is a "threat" to anything is laughable.
Term limits is a policy that has bipartisan support. Legal scholars have a mixture of views about it. The Whitehouse bill would kick in the next presidential term.
Term limits, which many states have, is not "court packing" though Republicans already did a form of that with Gorsuch and Barrett, if you want to be that loose with language.
Trump v. U.S. was a horrible ruling. A constitutional amendment fixing it is a good idea though it shouldn't be necessary.
Biden, at the very end of his term when it was meaningless, said in his opinion the ERA has been ratified, a minority viewpoint shared by some law and election law professors. I don't agree with it but really who cares? What a threat to the rule of law!
There was no "extortionate threat" and HILLARY! (squirrel) is more non-serious whataboutism. OTOH, Trump very well mishandled classified documents after repeatedly being given a chance (too many chances probably) to follow the law. Toss in January 6th, which rightfully should have made him ineligible to serve.
I agree with the dissent in the administrative law ruling cited. If Trump was wrong on one or two comparable moves, it would be the wash. Not quite so with lots of breaking of the law, including wrongly sending people to foreign hellholes.
Glad the person who was as pro-Trump as some of the most pro-Trump commenters grants that Trump is not infallible.
How did Josh Blackman hack Calabresi's account and post this? This OP is REALLY off the rails and overly dramatic.
Has anyone seen Blackman and Calabresi in the same place at the same time?
I'm just asking questions, like any REAL AMERICAN(tm)
Hillary is a ver serious issue that wasn't taken seriously by most people.
What did she do when she was first asked about her email server? She said it was for correspondences between her and Bill about her daughter's upcoming wedding. This was done because communications between husband and wife are protected. The next thing she did was send the server to her lawyer's office to protect it from an investigation. Then, and this boils my blood because I work in IT in regulated corporations, in defiance of a congressional subpoena, that server was intentionally erased and done so with a program that ensured the data could never be recovered. The IT person who did this was granted immunity from prosecution (much like Hillary's entire staff) for coming in for questioning.
No one goes through that much effort unless they have something very important to hide. Yet no one ever delved further into it. There are things less extreme that I could go to prison for because of the federal regulations that govern the systems corporations maintain. Yet all of these flagrant things went unnoticed.
Your hair must be on fire regarding the Trump IT practices.
Not remotely unnoticed. It's just that the people in a position to do anything about it were, instead, determined to protect her.
Worth noting how the progs hone in on cherrypicked facts to claim that HRC actions were legal, while ignoring and distorting the full context of her actions.
As is typical for bookkeeper_joe, he handwaves about "context" when he neither knows the facts nor the law. "Progs" like lifelong Republican James Comey claimed that HRC actions were legal, or at least that no reasonable prosecutor would bring charges given the "full context of her actions."
Beachbit
30k missing emails
hammer to blackberry
Tells us again what part is not accurate.
Comey description of the facts is dubious
Comey was given the job of whitewashing her, since Lynch got caught holding a secret meeting with Bill, and had to make it look like she wasn't making the call.
He had an attack of conscience, and couldn't quite bring himself to do it. But it wasn't like it was a very serious attack of conscience, so he couldn't bring himself to recommend charges, either.
So he split the difference, making it clear she actually had violated the law before declaring no prosecutor would bring charges in such a case. (Left unstated was, "Because we don't charge important people for these things.") And as a result pissed off everybody on both sides.
Well, I guess he probably didn't piss off Clinton herself, as the Clintons had never seemed to care if people knew they were guilty, so long as they could skate free. I think they got off a bit on observing the impotent fury of their enemies, actually.
DN is using the typical leftist talking points knowing full well about the ethical issues involved with comey, several FBI personnel, and the directives from Lynch.
DN knows comey was aware of the steele dossier and its orignation from the HRC campaign, and how Comey allowed the russian hoax investigation to continue inspite of that knowledge.
None of that is actually accurate.
Feel free to list the error/s.
I think he did. “None” of it being accurate would imply every statement was, in fact, inaccurate. You may like more exposition, but he certainly did identify the errors—everything in the quoted text.
What I would say is that any proposal — statutory or constitutional — to change the composition of the supreme court in any meaningful way should be specified to take effect at least six years down the road, ensuring at least one (and possibly two) presidential elections between enactment and effect. This would guarantee that nobody voting for it would have any idea which party would hold the presidency (or even who would be on SCOTUS) at the time the reform kicked in. It's kind of a Rawlsian veil of ignorance.
The quoted text refers to the commission, which did not submit proposals as such, but your general comment is okay. Two elections sound a bit long. Also, realistically, things don't always work out that way.
It's a fair point, but not quite enough. Stipulating the six GOP appointed Justices as "conservative" and the three Dem appointed Justices as "liberal" it would take a two Justice flip to achieve a conservative => a liberal majority. How likely is that, on what sort of timescale under the current rules ?
Justices are in the habit of timing their retirements to get a like minded successor. The pattern can be broken when a Justice dies in office. Which has only happened four times in the last 70 years. And only two of those occasions allowed the chance for a party flip.
No doubt someone cleverer than me would be able to work out the probability of a conservative => liberal change of control by the end of 2025, 2026, 2027 etc. I suspect you'd have to go quite a way into the future to achieve a 50.1% probability. 25 years ? 30 years ? 50 years ? Realistically much the best chance of a Dem majority on SCOTUS in the next 25 years depends on assassinations.
So a change in the rules even on your six year timetable offers the currently losing team a great deal - heads we win, tails it's back to the status quo.
To make the change a reasonable deal for the GOP you'd have to defer it to more like 30 years - or offer some other kind of sweetener.
On the other hand, they're not known as the Stupid Party for nothing.
"former Secretary of State Hilary Clinton had had a private email server that was unsecured at her private home"
It's the opposite of a whataboutism. Trump literally campaigned on the issue and "LOCK HER UP" was his slogan.
So it seems ... opportunistic to now claim it's no big deal.
Ah. So this Calabresi is back.
Well the other guy was kinda dull, so lets try unhinged and ignorant again!
1. Suggesting reforming the court using legal methods is not an "assault on the court".
2. Creating policy that is plausibly legal but later gets struck down is not an "assault on the court".
3. Ignoring direct district, appeals, or SCOTUS ruling is an "assault on the court".
4. Threatening impeachment when you don't like the rulings is an "assault on the court".
5. The government intentionally lying to a judge is an "assault on the court".
6. Threatening bodily harm or arresting a judge because you don't like their rulings is an "assault on the court".
1. Suggesting reforming the court using legal methods is not an "assault on the court".
Ehhh, legal assaults are still assaults. The Republicans played the long game, slowly putting judges in place to reverse what the other side had done, for the exact same reason.
50 years later, they finally got enough. Keep in mind a number of their placed judges were not as good as they had hoped, so it took even longer.
The other side announces a plan to pack the court. Nobody says it's not legal, but it's definitely an assault and is outrageous.
I support abortion, am upset at the current state, but I am not picking philosophies based on short term, local-domain goals, where the position gets in the way somewhere else. I feel no urge to defend court packing, legal though it may be, as a cool way to deal with things.
And plausible ways to work around the clear intent of the Constitution are assaults on it. People toyed with complex arguments to work around the Constitution on a third term for Obama.
Now that Trump's mentioned a third term, I'll bet your mouth is welded shut on that.
Flesh out the distinction between 1 and 4 for us please, Molly.
Isn't impeachment a "legal method" ?
I noted the same thing. It's a close call, but I think there's a distinction. While impeachment is unreviewable, it is not lawful to be used for mere disagreement with a judge's ruling.
(That having been said, I think that #1 can in fact be an assault on the court even if legal.)
What law does an impeachment based on a judge's ruling violate?
It violates the constitution, not a statute. No law could make it illegal, and as I said, it's unreviewable.
Saying it was not lawful implies a crime.
So the question now becomes where in the Constitution does it say that impeachment can't be used against judges whose rulings we disagree with?
Well, it does say impeachment is limited to cases of treason, bribery, or other high crimes and misdemeanors…so, I guess you’d have to argue that a purportedly incorrect ruling constituted a high crime or misdemeanor, or that the judge accepted a bribe to issue to disfavored ruling. Maybe that’s not impossible, but…well, yeah, it is.
It also says that they shall hold office during good behavior and Congress can define what good behavior is.
It does not. Many things are unlawful but not crimes. Like overstaying a visa, or discrimination, or paying less than the minimum wage. (Though some states might criminalize these things in some circumstances.)
Expanding on David's response, if #1 is motivated by decisions you don't like the two are comparable. But many who support term limits of 18 years are not motivated by decisions they don't like.
And likewise if the reason you don't like the judge's decisions is that you think the decisions are so bad as to reflect bad faith then it's another tie. So in reality the distinction is whether you are adopting your chosen "legal method" with a pure heart, not on the legal method in question. Still the hunt for a pure heart among our elected representatives will be a taxing one.
"are not motivated by decisions they don't like"
We will have to agree to differ on whether the Brennan Center has the requisite pure heart 🙂
"This supermajority has already had a transformative effect, handing down rulings on issues including civil rights, gun rights, and abortion that disproportionately harm vulnerable communities and are unmoored from the values of the American public"
You seem a little confused, Calabresi, so I invite you to explain yourself with specific examples. You write that "Until the Biden Administration, no President had ever prosecuted his predecessor in office for anything. Joe Biden tore up that rule and threw the whole weight of the Department of Justice and the FBI against President Trump who he was running against in the 2024 presidential election. The States of New York and Georgia piled on." Those statements imply that other presidents got away with committing the kind of crimes that Trump committed. Since you appear to be so eager to take the "what-about" approach to Trump's life of crime, perhaps you explain what the heck you're trying to say.
"Those statements imply that other presidents got away with committing the kind of crimes that Trump committed."
Bill Clinton certainly got away with obstruction of justice, which was a crime last time I looked. Perhaps not so awful as listing your lawyer obtaining an NDA as a legal expense, or taking out and then paying off in full a loan, but a crime.
So if I'm following your logic, Trump should get away with everything he's done because of what happened to Clinton. Do I have that right?
No, I was simply pointing out that the implication MoreCurious identified was, in fact, correct, that other Presidents HAD gotten away with committing crimes.
Heck, the former rule of Presidential immunity even extended to post Presidential actions by minions, like Sandy Berger getting a slap on the wrist for stealing and destroying documents from the National Archives.
In disclosure, I disagree with most of your points…but this was a point very well made, well played, sir,
When you're climbing the walls because Josh's weak ass hackitude can't get you off, thank God for Calabresi. This is the good stuff.
I'll say it again: If Republicans do not use this narrow window of unified government to lock in the size of the Supreme court constitutionally, they are living up to their reputation as "the stupid party". Because Democrats absolutely WILL pack the Court as soon as they have the White house and the votes in Congress.
There are two routes to doing so:
1. Vote in Congress that the threshold has been met for calling a Constitutional convention, and ask the convention to originate that amendment. This is the preferred path, because there are a number of needed amendments, and it only requires a bare majority vote to pull off.
2. Start the ball rolling on an amendment in Congress, and announce that a refusal of Democrats to support it will be taken as proof of intent to pack the Court, and justify a preemptive packing by Republicans. This is the less attractive option, since it requires help from Democrats, who will probably reason that Republicans wouldn't have the votes to carry out that threat.
I watched Biden for 40 years. He is lazy, stupid, adn poorly-spoken.
If you elected him YOU are the problem.
"I watched Biden for 40 years. He is lazy, stupid, adn poorly-spoken.
If you elected him YOU are the problem."
They teach keyboarding in grade school now. so there really is no excuse.
This is a pathetic rhetorical trick. Court packing and term limits are totally separate concepts that have nothing to do with each other.
Yes - Technically separate concepts
Yet again, you ignore the full context. The idea is to use those concepts to increase the likelyhood of progressive power in the SC.
Nothing about the "concept" of term limits (or court packing) increases the likelihood of progressive power on the Supreme Court. Biden — contra Calabresi — never made a specific proposal, and Whitehouse's proposal (which Biden never endorsed) would not have taken effect until after the election, and nobody knew who would win the election.
What term limits would do is make it less likely that either side could establish long term dominance on the Court, by ensuring regular and gradual turnover.
As discussed at tedious length above your analysis of likelihood overlooks the current status quo.
If under the current status quo there’s -say- a 50%+ probability of a conservative majority persisting until at least 2055, then a change that creates 50-50 odds by 2035, does increase the likelihood of a progressive majority.
If under the current status quo there’s -say- a 50%+ probability of a conservative majority persisting until at least 2055, then a change that creates 50-50 odds by 2035, does increase the likelihood of a progressive majority.
The key here is that the status quo leaves a conservative majority in place until, at a minimum, two of the current conservative Justices leave the bench while a Democrat is in the White House.
Thomas is 76, and Alito is 75. They are the oldest of the current Justices. The average age of the last 8 Justices to leave the bench (3 of whom died while still on the Court) is just over 80. Souter was the youngest to retire, at 69. O'Connor was the next-youngest when she retired at 75. Scalia died when he was 79, and all of the others were 80 or over when they left the Court.
My guess is that Thomas and/or Alito could retire if they aren't sure that a Republican would be in position to replace them with someone they'd want to succeed them, if they stay longer. If that comes to pass, then we could see the oldest conservative on the Court being Roberts (currently 70) with the next oldest being Kavanaugh, who is about 10 years younger.
There's no reason to think that the Court will be anything but a conservative majority for more than the next 20 years, even if voters put Democrats in the WH and in control of the Senate continuously starting with the next election.
The Supreme Court, like the rest of the judiciary, was given this level of independence from the voters on the assumption that the Justices would uphold a level of objectivity and non-partisanship that is as high as any educated human being could achieve. If they are going to be as political as they've become, then they shouldn't be as independent from the voters as the Constitution makes them.
I specify that they are independent from the voters because it is obvious to everyone that they haven't been independent from the President and Congress for a long time. And frankly, it is the Justices themselves that are to blame for that. They are all too smart not to know that they can't pursue the same political goals in their decisions as Justices that the President that nominated them and the Senators that confirmed them pursue, and then act like they aren't politicians.
Well kinda. I was merely criticising Nieporent’s probability calculations on the basis that he was overlooking initial conditions.
Two SCOTUS Justices have died in office recently while the other team had the White House, but that’s a bit of a fluke. The last time it happened before Scalia was 1954. So I agree that the odds favor continued “conservative” control for a while yet. Though one bad fish dinner could upset the odds. Maybe a couple of SCOTUS justices dying in office in the last ten years reflect an increase in narcissism- “I am so marvellous, I’m irreplaceable”
But I think you’re being a bit starry eyed about the political leanings of justices. Trying to get your own guys on the court and keep the other guys off it has been a competitive sport since the founding. I agree it would be nice if we had pure apolitical judges who never pay the smallest attention to anything but the text of the law, but that is a pipe dream.
The new thing is that the GOP have woken up after a very long slumber.Dem judges are very reliable to their party’s cause and have been for decades. GOP judges have been notoriously disloyal and unreliable. Even now only two of the six “conservatives” are reliably conservative. But at least the GOP is now trying to avoid more Kennedys and Souters.
They can get away with this because they are in fact independent of the executive and the legislature. GOP Justices know that they are perfectly secure from pressure by Trump or the GOP majorities in Congress. The threat to their independence is exclusively from the left. Which is why Roberts, Kavanaugh and Barrett are frequently defecting to the liberal side. They appease the source of the threat. They see no threat from the right for there is none.
Theoricially yes -
In reality, the intent was to stack the court.
Note what Calabresi did: he said that Biden endorsed a statutory approach (which I agree would not work), dug up a proposed statute by Whitehouse, said "this is a statute, Biden endorsed doing term limits via statute, therefore Biden endorsed Whitehouse's prpoposal," and then played even more Kevin Bacon by saying that Harris endorsed Biden's idea and therefore Harris endorsed Whitehouse's idea.
Moreover, nothing in Whitehouse's bill "provided for eliminating the Senate filibuster as to his 18 year Supreme Court term limits bill," which — even if it did say that — of course would not work anyway since it would require first eliminating the filibuster to enact the elimination of the filibuster.
Also Biden prosecuted Trump in New York.
And they require congressional action, and perhaps a constitutional amendment.
Advocating for them might be a partisan tool, but it's not out of bounds.
The rest of the post is just a standard tendentious rehashing of mostly dumb and false arguments, starting with "Then there was the extortionate threat that the Biden-Harris Administration made in Murthy v. Missouri (2024) to Facebook, Meta, and YouTube that the Administration would bring an antitrust lawsuit against these companies to break them up unless they censored free speech," which is a fabrication rejected by the Court in Murthy v. Missouri, and ending with lies about the prosecutions of Trump.
So, another normal day for Steve.
It was only a few months ago that I read lots of people arguing that the Supreme Court should be expanded to 13 justices (because for some reason we need one, and only one, justice supervising each of the 1st - 11th Circuits, plus one for the DC Circuit and one for the Federal Circuit). I wonder if any of those people think it would be a good idea to do that now?
WHat a load
Expanding the supreme court may not be popular, but passing a bill and having it signed by POTUS is the way expanding the court would be done.
Unlike, say firing federal employees by fiat and eliminating congressionally created organizations without legislation
Well, of course it would be legal to expand the Supreme court. And 51 Senators could meet, and by a 26-25 vote legally expel the other 49, but would you claim that wasn't abusive?
The Constitution doesn't actually prohibit a lot of potential abuses. They don't thereby cease to be abuses.
The point of Court packing is to convert the Supreme court into a rubber stamp for the party doing it. That's why the proposal was 13, not 11: An additional 4 Democratic justices would convert present 6-3 loses into 7-6 victories, and the Democrats could then proceed to criminalize political speech, ban guns, and so forth, with the new Court's blessing.
You need a 2/3 vote to expel a member of Congress. See Powell v. McCormack.
Fair point, it would require 34 votes, not 26.
Is it? This is a silly thing to say since there was no actual proposal that made it to Congress. Biden speculating on something is just not "abusive" in any meaningful way. Now - if Congress threatened to use one of its two (2) powers to check the judiciary, that's democratically legitimate.
And 51 Senators could meet, and by a 26-25 vote legally expel the other 49, but would you claim that wasn't abusive?
Shirley there's a better scheme than that, that doesn't require 51 Senators. At present there are 53 GOP Senators and 47 Dems. But of the 35 Senate seats up for election in 2026, 22 are GOP and only 13 Dem. So of the 65 other Senators who are not up for election, the Dems lead 34 to 31. So at the beginning of the Senate session after the 2026 election, the 34 Dems can simply refuse to recognize any GOP Senators-elect.
and the Democrats could then proceed to criminalize political speech, ban guns, and so forth, with the new Court's blessing
C'mon Brett get your priorities straight. First up are voting rules and redistricting.
What’s ironic here is that it’s very well-known that Biden diffused calls in his own party to pack the Supreme Court by assigning the matter to a commission to investigate - a routine bureaucratic tactic for burying a proposal - and then packed the commission with people opposed to such a change, so that the commission’s report, to no-one’s (not even Calabresi’s) surprise, came out against it. Similarly, he countered term limits bu proposing using statutes to do things he knew would require a constitutional amendment. He balanced maintaining his popularity in all wings of his party against his constitutional reponsibilities by using parliamentary and bureaucratic tactics to deflect the party’s left wing rather than coming out openly opposing it.
How in this world does this in any way compare to Trump’s open defiance of the courts, Trump has done far more than just disobey court orders. He has called judges he doesn’t like Communists, openly called for their impeachment and removal, and said things that could be interpreted as tending to encourage radicals among his followers to assassinate them.
I think Mr. Trump could be jailed for contempt of court for some of the things he’s done.
This post isn’t just a political hack job. It’s an embarassingly bad political hack job. I’m not expecting Mr. Calabresi to have a sense of decency. I’m not expecting him to have a sense of shame. But does he have any clue just how stupid things like this make him look?
I'm going with, "no"...
Are all conservative MAGA lawyers just so hopelessly devoted to the dear leader that they have no ability to think critically anymore? Democrats are often accused of Trump Derangement Syndrome, but I'm starting to believe these MAGA professors have the worst version of it.
My theory is that MAGA recognizes only one ethical principle, payback, i.e. that anything they do, however terrible, is justified by searching the record for something sort of similar done by some liberal somewhere. I've yet to see a conservative comment thread where that's not the principle rhetorical weapon.
1. Why do you think a search is necessary ? People are much better at remembering their own wounds than other people's. That you can't remember things that conservatives regard as past injuries, merely identifies you as not a conservative. I promise you, not a one of our lefties on the VC will forget the terrible GOP crime of garlanding Garland, until their dying day. Or at least until dementia sets in.
2. You talk as if payback is an ignoble principle. It's a principle of justice with a very ancient pedigree. Moreover it has been confirmed as outstandingly game theoretically rational by Tit-For-Tat's outstanding record in competition as a strategy for ... effective co-operation. Why are you down on it ?
One of the things most entertainin about the Garland debacle was after listening to Fed Society types proclaim for years that judges should be neutral decision makers, chosen only for their adherence to the Constitution, without partisan taints, the rationale used by McConnell was openly, explicitly partisan. We want our president to nominate a justice, not yours.
I can recall a lot of alleged Crimes against Conservatives mostly because they insist on running through the list at every opportunity. Some will bring in the Tragic Assassination of Bork if you give them more than a minute.
Anyway, if you can find me a leftie who has recently made Garland the centerpiece feel free to note. As it happens McConnell's dogged determination to shut the process down had a much greater impact on the Court as anything Biden is alleged by Calabresi to have done.
And finally, thanks for making my point. You believe payback is the only ethical principle that should guide our politics. The fact that you claim it leads to "effective co operation" is of course risible on its face. Please point to a Trump tweet that graciously invites anything of the sort.
1. You are aware, I assume, that garlanding was not new. It had happened before more than once. Indeed one of the earlier victims was ..... Garland himself. The only thing new about McConnell's scheme was that he used it for a Supreme Court nomination rather than a Court of Appeals one. But the idea was not new.
2. I don't say payback is the only principle, merely that it's an ancient and entirely rational principle. Nor do I claim that it invariably produces effective co-operation. If the other team always defects, Tit-For-Tat is no more effective than any other strategy. Whether it works or not depends on the other team switching from defection to co-operation. Titting their tats offers an incentive for them to co-operate. Repaying their tats with the hand of friendship does not.
Sorry I am unfamiliar with the verb garlanding, as obviously I don'gt spend enough time in MAGA land to catch all the latest RWNJ lingo. Congrats by the way on making Borking a thing, i.e. rejecting a Justice because of his constitutional theories.
Does Garlanding mean refusing to hold hearings on a Justice nomination because you believe the Court is inherently partisan and therefore only your party should get to name Justices? Seems a strange thing to defend.
As for payback, I am merely noting that in any discussion of the stupid evil things that T is doing, the invariable response of his defenders is to claim it's justified by some thing they imagine happened or was said by some liberal somewhere and which they imagine was bad.
I think it just means refusing to hold hearings on a nominee because you expect a President of your own party to shortly be in a position to fill the vacancy. Which, of course, has been going on almost from the founding.
Except that when pressed McConnell's only real precedents were from the 1840's.
And again, it makes clear that which conservatives have always tried to conceal . They see the Court as a partisan institution which they wished to capture for partisan reasons to achieve partisan goals. All the while decrying "activist" liberal judges.
Except it had already happened to Garland himself on his DC Appeals Court nomination in the 1990s and to a number of GOP nominees in the Bush Jnr administration. Before the Ds lost the majority and moved to filibustering instead.
The Republicans had the majority in the Senate for just over half of Bush 43's two terms. (Jeffords switched from Republican to independent, but caucused with the Democrats in May 2001, and Democrats won the majority outright in 2006). That means that any Bush nominees that were blocked between the start of the sessions in 2003 and 2007 would had to have been through the filibuster or other procedures like 'holds' or blue slips or whatever they're called that. yes, both sides had been using for decades.
But McConnell was the one blocking Obama nominees for the last two years of his term from his position as Majority Leader. (I can find and link the clip of him taking credit for this on Sean Hannity, if you doubt that.
Also, the Republican argument that held up Garland in 1995-96 and that they used to justify their blocking DC Circuit nominations before they won control of the Senate in 2014 (which is what led to Reid using the "nuclear option" and doing away with the filibuster for lower court nominees), is that the DC Circuit didn't need to have that many seats. The vacancies should be left open, they argued. An argument they only made when a Democrat was President, naturally.
Hope not expect. But otherwise correct.
Well as a rule payback is morally justified simply qua payback.
Though as I say it’s also a powerful incentive to co-operation.
“Nemo me impune lacessit” is good policy.
Forgiveness unto seventy times seven is more for the reward in the next world thing.
You talk as if payback is an ignoble principle. It's a principle of justice with a very ancient pedigree.
"Payback" is not justice. It is just another word for "revenge." Even the biblical instruction to extract "an eye for an eye" is regularly misunderstood to advocate for vengeance, when that is not what it means at all. Justice is served when the person harmed has that harm remedied and the perpetrator of the harm is either the one to pay for that remedy (if the harm was monetary in nature) and/or is punished in a measure equal to the harm that person caused. Obviously, justice will focus on punishment when nothing can be given to or done for the victim to make them completely whole. (Such as the permanent injuries, psychological trauma, or death from a violent crime.)
For it to be justice, and not revenge, it needs to be delivered by the legitimate authority to make those decisions. In ancient times, this could have been religious authorities or the ruler, clan chief, or whoever held that kind of power. Now, it is only the government that can do that with legal legitimacy.
"An eye for an eye" is the principle that is supposed to guide those authorities toward justice so that individuals don't get caught in escalating cycles of revenge. Your principle of "payback" practically guarantees escalation, and that is why even ancient codes of law put limits on punishment. (The concept of an eye for an eye goes back to the Code of Hammurabi, at least, which predates Hebrew scripture by centuries.)
Within the political realm, there is no larger authority that has any possible way to be neutral and dispense "justice". Escalation and the breakdown of norms and limits on what is considered acceptable and ethical competition for power in a democratic nation is what happens when "payback" is driving the actions of politicians. And that is why "payback" should never be accepted as justification for anything in politics.
You’re offering a very parochial Judeo-Christian take on the essentials of “justice.”
As you note, an eye for an eye is a liberal reformist idea of justice. It’s certainly not rational since it necessarily makes the expected value of punishment less than the expected harm inflicted (since you have to discount the former for the probability that you will escape punishment.)
The idea that justice must be monopolised by the state and not by private parties is equally parochial. Lots of societies have been quite OK with private justice.
Payback is morally fine by me. There may sometimes be prudential reasons to eschew it but that’s a different question.
Both as an attorney and as a political scientist, I was horrified by the Biden-era talk of packing the Court. In my opinion, that would have entirely destroyed any remaining legitimacy of the Court.
As for the "unprecedented" legal attacks on then-former-President Trump, you have to recall that Trump's actions were unprecedented--the United States Supreme Court, in United States v. Trump, did not disturb the findings of the Colorado Supreme Court (that Trump had taken part in insurrection). It held that (1) States could not enforce Amendment XIV, Section 3; and (2) that Congress would have to pass legislation in order to enforce that Section (Barrett, J., thought that (2) was going too far)). Trump I's behavior, in my view, fully justified prosecution--if anything, the Biden administration was overly cautious and so acted far too late.
Trump II is of course, far, far worse in terms of his attacks on his perceived opponents and his wilful pushing aside of the Constitution. But there is no question in my mind that it was Trump I (and to some extent his enablers, like McConnell) that laid the groundwork for the present unraveling of our republic.
"the United States Supreme Court, in United States v. Trump, did not disturb the findings of the Colorado Supreme Court (that Trump had taken part in insurrection)"
While this is technically true, it kind of misses the point, and I think you're misunderstanding US v Trump anyway.
1. Yes, states couldn't enforce Section 3 against Trump under the circumstances.
2. Yes, Congress would have to pass legislation to enforce it.
3. Congress, in fact, HAD passed legislation to enforce it, and that legislation was the federal insurrection statute.
This means that the only way Section 3 could be applied to Trump under existing law was to first prosecute and then convict him for insurrection.
Since this hadn't happened, #1 was dictated by the absence of this predicate for enforcement. IF Trump had already been convicted of insurrection, Colorado absolutely could have kept him off the ballot!
As it is a federal crime, and state courts can't just 'find' people guilty of federal crimes they've never been convicted of, the Court didn't have to upset the finding, it wasn't even relevant to the case. They could have found he was the Tooth Fairy, too, and the Court wouldn't have bothered overturning that finding.
If you have any real complaint, it's that the Biden DOJ had three freaking years to have brought insurrection charges against Trump, and never even tried.
And the reason they didn't try was that as professional prosecutors, they took one look at that case and gave it up for hopeless... They had no legally relevant evidence of guilt at all.
Biden's talk was the contours of what a new Judiciary Act would look like. Congress passing laws to govern the courts is banal ol' history. Calabresi getting so hot an bothered that he'd conflate it with Trump openly defying a Court order is batty.
Trump I DID set this up - but it was set up by the full aiding and abetting of the Supreme Court. Trump v Hawaii, the Court said that Trump's own public statements about his own law could not be used against him. Roberts "overruled" Korematsu while penning a decision that is more or less the same thing. The Court massively slow walked the case in Trump v US ... compared to how it snapped into action all over the emergency docket to help Trump. At the end of the day the Roberts Court, interfered with a death penalty case at the end of the Trump administration so the federal death penalty could be used to execute some people before the clock ran out.
Calabresi woke up this day and chose violence. Against well-reasoned, non-hyperbolic thought, that is.
Calabresi appears to be wearing the same brand of knee-pads as Josh Blackman.
1. Calabresi, the founder of the Federalist Society, who has been so vital to Donald Trump's jurisprudence - is a rich choice to opine on this.
2. A committee by the President - to noodle on ideas for what a Judiciary Act of 202x - would look like, is every bit a threat on the independent judiciary as Donald Trump refusing to follow a court order to recover someone he sent to a Salvadorian prison. This argument is so transparently idiotic that it would require a tenured academic who has not dealt with the real world to make it.
3. Biden followed the black letter law of the statute in his loan forgiveness. The Major Questions doctrine was invented whole cloth by the Supreme Court. There is nothing about Congress delegating regulating powers to agencies in the Constitution. You can have ideological isses with that, but no more.
4. Trump's mishandling of classified information included NOT FOLLOWING requests to resolve the issue. Clinton's email server is what it is - it is not keeping national security documents in the bathroom and refusing to return them.
5. Ultimately, Calabresi - like so many others - simply can't (or won't) see what Trump is doing in terms of violating appropriations law, kidnapping US residents, as something substantively different than "politics". Since Calabresi himself is under no threat to be kidnapped - indeed Leonard Leo might be sending him checks - he can write this unserious drivel.
Oh, indeed, let us respond to all of Trump's actions, statements, violations or crimes with, "What about Biden's?" Wish I could defend the tax and fraud charges against me with "What about Trump's?"