The Volokh Conspiracy

Fifty years ago today, President Richard Nixon resigned. His resignation came shortly after the Supreme Court unanimously decided United States v. Nixon. This decision is often held up as an exemplar of Supreme Court jurisprudence at its best. Justice Kavanaugh, for example, often stresses that Nixon was joined by three Nixon appointees. (Justice Rehnquist recused because former Attorney General John Mitchell, one of the defendants, had been Rehnquist's boss.)

But I'm not sure Nixon has stood the test of time. The argument that the Court had jurisdiction to resolve what was, in effect, a dispute within the executive branch, never persuaded me. This theory led inexorably to the concept of the independent counsel, an anathema to the separation of powers. Moreover, to the extent that Nixon said anything at all about the Appointments Clause, that analysis has been overcome by Buckley v. Valeo, Bowsher v. Synar, and other cases. (Seth Barrett Tillman and I explain why the holding of Nixon, whatever it is, was limited to some "unique" facts—which is precisely what the decision repeatedly stated.) I've long seen Nixon v. Fitzgerald as a something of a correction to Nixon. Fitzgerald was decided nearly a decade after Nixon during a more sober time.

There's more. Today's Wall Street Journal includes an Op-Ed by Kenneth L. Khachigian, who served as an aide to President Nixon. He argues, provocatively, that Nixon should not have resigned, and that he could have survived an impeachment vote--or at least that he should have taken a principled stand and forced Congress to impeach him. But more relevant for my purposes are behind-the-scene machinations. Khachigian speaks to some of the questionable legal issues lurking in the background:

I hope new generations are open to some different thinking—or at least a balanced treatment that goes beyond the story of bungling burglars and political damage control. It must include how the "Watergate affair" was also the culmination of Nixon's political opponents' long-yearned-for goal of destroying him. Nixon had a political target on his back from his congressional days of vanquishing the communist Alger Hiss, a favorite of Washington's intellectual left. Through his entire presidency, Congress was controlled by opposition Democrats, with confrontation aggravated further by Nixon's determination to end the Vietnam War he had inherited from the Kennedy and Johnson administration planners at the State and Defense departments.

Sen. Edward Kennedy set up the Senate Watergate Committee. Three months later John F. Kennedy's 1960 campaign director of opposition research against Nixon, Archibald Cox, was hired as Watergate special prosecutor with a staff seeded from the ranks of Robert F. Kennedy's Justice Department. The subsequent special prosecutor, Leon Jaworski, expressed concern in an internal memorandum that his chief deputy reflected "an attitude I discussed with you before—the subjective conviction that the president must be reached at all cost."

Watergate scholar Geoff Shepard has unearthed further damning evidence that the special prosecutors had several unethical private meetings with Judge John Sirica in the absence of attorneys for Nixon and Watergate defendants—each violating the most basic legal protections. Nixon's adversaries weren't looking only for the truth. They were looking for a scalp.

I didn't know these things. Did you?

There is also the entire fever pitch of the time. Every element of government was focused on getting Nixon out of office. And from what I've researched, we still have no idea what the burglars were looking for in the Watergate Hotel. Nixon had no role in, or even knowledge of, the break-in before it happened. But he later became aware of the break-in. My sense is that Nixon did the sorts of things that  many of his predecessors had done, and gotten away with, but Nixon was recorded. I was not alive at the time, but I have to imagine that Watergate felt something like the resistance to the Trump Presidency.

After half a century, perhaps the members of the Trump v. United States majority have come to second-guess the Nixon majority. The immunity case, I've written, culminated from years of lawfare against Trump. James Piereson makes this point at City Journal:

Pushback against the Watergate legacy is evident in efforts to curtail independent prosecutors and partisan "lawfare," conservative attacks on the politics of the nation's capital, and Trump's current presidential campaign, supported in great part by voters who believe that they have been shut out of influence in Washington and (inferentially) that Watergate promoted political rules that reward insiders. The Supreme Court recently broke new ground in ruling that a president is immune from criminal prosecution for acts undertaken while carrying out the core powers of the presidential office. That opinion may partly reflect a recognition of the lawfare that a Democratic administration is waging against its Republican opponent. It is, in addition, an opinion that works against Watergate sensibilities in regard to presidential conduct and accountability. It's a worthy question whether the current justices would have ruled as their predecessors did in 1974's United States v. Nixon regarding the White House tapes. Today's Court might have permitted Nixon to keep those tapes, in the belief that Watergate represented a form of lawfare against an elected president.

Maybe the Roberts Court was right and the Burger Court was wrong.

On Tuesday, July 30, the en banc Fifth Circuit vacated the preliminary injunction that Judge David Ezra had entered in the buoy case. (Ilya wrote about the case here.) To date, the Fifth Circuit has not yet issued the mandate in that case, which remains before the court of appeals. What has happened over the past eight days is weird--so strange that I worry about Judge Ezra. I will lay out the chronology as best as I can, and offer some commentary along the way. I apologize for the length of this post, but there is much ground to cover.

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It seems that Justice Gorsuch is going through the media circuit in advance of his book launch. Yesterday I wrote about this interview with the Wall Street Journal. Today, David French of the New York Times published a transcript of his NMG sit down. To go back to one of my hobby horses, when a publisher gives a book deal to a Justice, with a large advance, the publisher knowns that the media will gladly sit down for interviews in Supreme Court chambers. This is free press that cannot be purchased--well it can be purchased with a substantial advance. All the more reason to place a cap on royalties for Justices. I digress.

French and Gorsuch had an extended discussion of what was learned from the COVID cases. In truth, we need to reflect a lot more on that period than we have. So many of us (present company included) made some terrible decisions. Our faith in the power of government and self-professed "experts" was largely misplaced. And nothing that has happened since the pandemic has restored my faith. Chief Justice Roberts's "super-precedent" in South Bay has not aged well. I have to imagine that distrust was lurking in the background of Loper Bright.

I found the most enlightening exchange to turn on collegiality. I think that is a term that many people use to mean different things. It was well known that Justices Scalia and Ginsburg were dear friends, and often socialized together. They were collegial. But did RBG ever persuade Scalia to change his mind, at least on a big case? Probably not. Does that mean they were not collegial?

Of late, Justice Kagan has been pushing the latter conception of collegiality--that it entails having an open mind, and a willingness to be persuaded. I have to imagine this push is part of her effort to corral Justice Barrett's votes at every opportunity. If there is any common thread with Joan Biskupic's reporting, is that Justice Kagan flipped Justice Barrett in several cases. I've yet to see any indication that a conservative Justice has flipped a liberal member of the court to reach a conservative outcome. Flipping is not ambidextrous--it only works on the left.

I for one, reject the notion that collegiality entails a willingness to reconsider your views. It is always a judge's role to find the truth, and determine the best answer to a particular legal dispute by his or her best lights. And that process primarily entails weighing the arguments advanced by counsel, and deciding which side should prevail. To be sure, judges on a multi-member court will lobby one another for this position or that position. And to maintain relations, it is important to be willing to listen. But I do not think collegiality requires anything more than listening. Indeed, there are problems with this sort of ex-post lobbying that happens after the briefs are submitted and arguments conclude. Perhaps the parties have obvious rejoinders to some post-hoc position raised, but there is no chance to discuss it. The vote at conference reflects an assessment of the actual case, as it is presented. But when votes change after conference, invariably, it will be because of some newly-determined facet of the case that the parties did not have the chance to address. The Court could always order re-briefing and re-argument, but alas, the pattern has been to simply decide cases on grounds that would be entirely foreign to the lower courts. NetChoice and Moyle comes to mind.

David French poses this question to Justice Gorsuch, which he sort-of-answers, indirectly.

French: Justice Kagan gave some remarks to the Ninth Circuit recently where she talked about this issue of collegiality within the court. There's been some friendships, for example, most famously of Justice Ruth Bader Ginsburg and Justice Antonin Scalia. Also recently, Justice Sonia Sotomayor gave a speech in which she said some really kind things about Justice Clarence Thomas and the way that he interacts with court personnel.

But Justice Elena Kagan said something interesting. She said the collegiality that America should be looking for — and I'm paraphrasing — is not "Do we go to the opera together?" but "Are we open to each other?" Are we collegial enough to where we are open to each other? What is your temperature check on the collegiality of the court?

Gorsuch: Well, you're not going to drag me to an opera, David.

French: I wasn't expecting to.

Gorsuch: There's a lot in that question.

French: Yeah.

Gorsuch: I don't know whether you want me to talk first about the court.

French: Let's go first with the court and then with the culture.

Gorsuch: Sure. So with the court, I think it is important that we're friends and that we enjoy each other's company. We have a nice dining room upstairs. Lovely dining room, but it is the government, and we bring our own lunch. And oftentimes you'll see the chief justice with a brown bag and a peanut butter and jelly sandwich. OK. Those moments are important. They're human. But I also take the point that collegiality in a work environment means being able to work together well. And can I share just some numbers with you that I think tell the story on that?

Gorsuch goes on to explain that the Court decides many cases unanimously, and that he often votes for the "liberal" side of the case. And he says those unexpected coalitions are evidence of "collegiality."

Gorsuch: We decide the 60, 70 hardest cases in the country every year where lower courts have disagreed. That's the only point to get a case to the Supreme Court. We just want federal law — largely our job is to make sure it's uniform throughout the country, and if the circuit courts are in agreement, there's very little reason for us to take a case, unless it's of extraordinary importance.

So most of the work we do is when lower court judges disagree about the law. Magically, I think in this country there are only about 60 or 70 cases. You could argue a little bit more, a little bit less, but there aren't thousands of them. They're very few in number.

There are nine of us who've been appointed by five different presidents over the course of 30 years. We have very different views about how to approach questions of statutory interpretation, constitutional interpretation about political disagreements or interpretive methodological disagreements. Yet we're able to reach a unanimous verdict on the cases that come before us about 40 percent of the time, I think it might have been even higher this last term. I don't think that happens automatically.

I think that's the product of a lot of hard work. I think that's proof of collegiality. OK? That is what we do and we do well. Now people often say, "Well, what about the 6-3s?" Fair enough. Fair enough. But that's about a third of our docket. And it turns out they aren't always what you think they are. About half the 6-3s this last term are not the 6-3s you're thinking about.

Okay, Gorsuch does not actually answer the second part of Kagan's question. The fact that the Justices vote in unusual ways reflects the fact that all of the Justices are, to various extents, heterodox. They are not--contrary to what you might read--ideologues. Trust me, if we had an actual MAGA Court, things would look very different. But Gorsuch does not even hint that collegiality requires a willingness to be persuaded. It is the facts of a case, and the arguments advanced by counsel, that determine the unusual lineups.

I would like this same question posed to Justice Barrett. I think she might see things differently.

French also asked about Justice Kagan's ethics proposal. Gorsuch explains that the facts changed since Kagan's speech. Namely, President Biden wrote a pointless op-ed and Senator Schumer introduced a nuclear bill.

French: We're running out of time, so I do want to get to a couple of other questions. One, Justice Kagan also raised this interesting idea regarding ethics. And she talked about that the Supreme Court has a code of ethics that she appreciates, but she also talked about the possibility of enforcement through — and I'll read the quote here, one moment — "If the chief justice appointed some sort of committee of highly respected judges with a great deal of experience, with a reputation for fairness, you know, that seems like a good solution to me."

And a reason for that, the creation of sort of an outside judicial panel would, part of it would be to protect the court, to provide an outside voice that could not only adjudicate potentially valid claims but also debunk invalid accusations. And she made it clear she was speaking only for herself. What's your reaction to that concept?

Gorsuch: Well, David, since that talk, there's been some developments in the world, and this is now a subject that's being intensely discussed by the political branches, and I just don't think it would be very useful for me to comment on that at the moment.

In hindsight, would Kagan still have given her remarks, knowing what would come the following week? Or perhaps Kagan knew what was coming, and gave her remarks to shift the Overton Window? We are working with a crafty, plugged-in operator here, so be skeptical. How does that work for collegiality?

Justice Gorsuch gave a wide-ranging interview with Kyle Peterson in the Wall Street Journal. The focus is his new book, which will be released on Tuesday. There are also some insights into how the Court functions post-COVID, and how his chambers operate.

First, Gorsuch strongly intimates that the Dobbs leak did not come from his chambers. I doubt any NMG clerks lawyered up, or refused to turn over their devices:

Did the Covid pandemic and the 2022 leak of the Dobbs abortion ruling change how the high court operates? Not much, apparently. "Unsurprisingly, the court has taken more security precautions with respect to its internal drafts," Justice Gorsuch says. He declines to detail what he told his clerks about the leak. "I can tell you," he says, in a low steely voice, "that it was very important to me that anybody who works for me was totally cooperative with the investigation. And they were."

Second, Gorsuch seems to appreciate the interminable round-robin format:

Oral arguments, influenced by pandemic teleconferences, have become "a little more leisurely." Lawyers now get two minutes to speak and settle in before the interrogating begins, which Justice Gorsuch says he loves: "They're all overcaffeinated and underslept, and they have a point they want to make." At the end, each justice is given a turn for final queries. "You don't have to elbow your way in," he says. "You never leave oral argument thinking, gosh, there's a question I wanted to ask."

I am not a fan. Then again, I'm not the one trying to ask questions.

Third, Gorsuch does not like his own writing:

Then comes the work of drafting rulings, where Justice Gorsuch says his colleagues shine. "I think we have an unusually large number of very gifted writers on the court right now," he says. "I'm not patting myself on the back. I put myself kind of in the middle of the pack, frankly." Asked if he has a favorite of his opinions, he answers without pausing to think: "Nope. I hate 'em all. Do you like reading your old writing?" Sometimes the job requires it. "Inevitably I think, ah, I wish I'd said this differently, ah, I didn't explore that enough."

I agree, and would put Gorsuch around the middle of the Court with writing prowess. My current top three are Roberts, Kagan, and Barrett. But Gorsuch writes in his own distinct tone, which works for him. On that point…

Fourth, Gorsuch states that he writes his own opinions. This is not surprising, since his tone is so distinctive, term-after-term:

What is his drafting process? "I like to have a law clerk do something," Justice Gorsuch says, even if he ultimately follows the practice of his old boss, Justice Byron White: "He'd say, write me something. And he'd read it. And then he'd throw it away. And then he'd write his own thing." This isn't to say the clerks are wasting time: "It's informative to see how another mind might approach the problem."

But then Justice Gorsuch sits down to write a complete draft himself. "It's a pretty intense, lock-yourself-in-a-room-with-the-materials process," he says. "At the end of the end of the end of the day," he says, repeating himself for emphasis, "I'm the one who took the oath, right? And I have to satisfy myself, that I've gone down every rabbit hole, and I understand the case thoroughly, and I'm doing my very best job to get it right."

I appreciate that Justice Gorsuch is now writing books at a regular clip. It is unfortunate that Gorsuch's royalties pale in comparison to his colleagues'. But that shouldn't matter. Gorsuch is writing about important legal topics, in much the same way that Justices Scalia and Breyer did. Gorsuch is trying to affect the long-term legal conversation. The other Justices are trying to… well, write about themselves.

For what it's worth, Gorsuch seems to identify as a libertarian-but-not-a-nut:

Whatever the cause, he worries that the U.S., with its accumulated statutory commands and regulatory crimes, is on the far side of what one might call the legal Laffer curve. "Too little law poses problems," he says. "I love my libertarian friends, but I am not with them on anarchy, OK? Law is essential." And yet: "Too much law actually winds up making people fear law rather than respect law, fear their institutions rather than love their institutions."

I can relate.