“All three of the Court’s Democrats, meanwhile, appeared sympathetic to Glossip’s arguments, and spent much of the case batting down Alito’s proposals to dismiss the case on procedural grounds — though Justice Ketanji Brown Jackson showed some openness to forming an alliance with Thomas to send the case back down to the state courts in order to gather additional evidence.
That leaves Justices Brett Kavanaugh and Amy Coney Barrett, conservative Republicans who asked some questions that appeared sympathetic to Glossip, as the wild cards in this case. It is possible that they could provide the fourth and fifth vote to save Glossip’s life, but far from certain.
The alleged constitutional violation that is before the Court — that prosecutors withheld evidence that a key witness has a serious mental illness, and failed to correct this witness when he lied on the stand — is fairly marginal. It turns on four words in handwritten notes by prosecutor Connie Smothermon that were not turned over to Glossip’s lawyers until January 2023. The state agrees with Glossip’s legal team that these four words reveal a sufficiently serious constitutional violation to justify giving him a new trial.
But while this narrow legal issue, which is the only issue before the Supreme Court, is the kind of legal question that reasonable judges could disagree upon, Smothermon’s notes are only one piece of a wide range of evidence suggesting that Glossip’s criminal conviction is unconstitutional: Oklahoma conducted two independent investigations, both of which concluded that Glossip’s trial was fundamentally flawed.
Among other things, those investigations found that Justin Sneed — the man who actually committed the murder at issue here — was pressured by police to implicate Glossip in the crime. They also show that police and the prosecution lost or destroyed evidence that could potentially exonerate Glossip. And they show that police inexplicably did not question potentially important witnesses or search obvious places for evidence.
Now, however, Glossip’s life likely turns upon whether Kavanaugh and Barrett are moved by the procedural arguments pressed by the Court’s right flank, or by the arguments pressed by both Glossip and the state: That four words in Smothermon’s notes reveal a serious constitutional violation.”
“”Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something,” Supreme Court Justice Neil Gorsuch observed in 2019. Gorsuch elaborates on that theme in his new book Over Ruled, showing how the proliferation of criminal penalties has given prosecutors enormous power to ruin people’s lives, resulting in the nearly complete replacement of jury trials with plea bargains.
“Some scholars peg the number of federal statutory crimes at more than 5,000,” Gorsuch and co-author Janie Nitze note, while “estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions.” The fact that neither number is known with precision, they suggest, speaks volumes about the “unpredictable traps for the unwary” set by the government’s ever-expanding rules.
To illustrate “the human toll” of “too much law,” the book tells the story of Florida fisherman John Yates, whose grueling legal odyssey began with the charge that he had discarded undersized red grouper. That alleged act supposedly violated a law aimed at deterring the destruction of potentially incriminating financial records. Gorsuch also recalls the pretrial suicide of 26-year-old computer programmer Aaron Swartz, whom prosecutors threatened with “decades in prison and millions in fines” for downloading a bunch of articles from an online academic library without permission.
Over Ruled emphasizes how overmatched ordinary people are in disputes with bureaucrats empowered to write the rules under which they operate. Those nemeses include officials charged with dispensing government benefits, deciding whether immigrants can remain in the country, and enforcing the frequently arbitrary and petty restrictions inspired by COVID-19. Gorsuch also decries draconian prison sentences and mass incarceration, again illustrating how his supposedly right-wing instincts frequently overlap with progressive concerns. His compassion for people confronted by bewildering, absurdly punitive legal codes defies ideological stereotypes.”
“there are scenarios in which intentionally lying about a fire in a crowded theater and causing a stampede might lead to a disorderly conduct citation or similar charge.”
…
“Although the Supreme Court has never had the occasion to adjudicate an actual dispute involving a person yelling “fire” in a crowded theater, the Court did at least narrow its “clear and present danger test” in 1969, setting a higher standard for imminent incitement of lawless action.””
“You can’t yell fire in a crowded theater. I’m sure you’ve heard somebody say that before when discussing free speech and limitations on free speech and the First Amendment. Well, it’s actually one of the most widely misunderstood quotes in American law. It’s routinely parroted as the status of why there can be or are limitations on free speech, but it is a big fat myth. I will explain here in just a moment, so stick around.”
…
“the interesting about it is the Schenck case wasn’t about fires, it wasn’t about theaters, it kind of wasn’t even about free speech. It was in a way, but it was really about a guy that was being charged with violations of the Espionage Act because he was a member of the socialist party and he was speaking out against the draft. And the other bizarre thing about why this quote gets attributed to why it’s okay to limit free speech is, the Schenck case, which has now actually been overturned and has been for like 60 years, actually stood for the exact opposite. The Schenck case was applying a pretty large degree of censorship on free speech. That’s why it was overturned is because it was actually found to be completely contrary toward what the First Amendment stood for.
So, the idea that you can’t yell fire in a crowded theater, Justice Holmes was using that as an analogy to simply say that free speech can’t go completely unchecked. And that idea has maintained it’s truth throughout the years. That’s still true. There are limitations on what is considered protected speech and what is not considered protected speech, and that’s a topic for a different video. But it’s just always been interesting to me that this quote, which is just dicta, it’s not the holding of the case, it’s not really the law of the land, and it’s not Justice Holmes saying that’s what the law of the land should be, has somehow withstood the test of time and is still, to this day”
“Since Trump’s three appointees gave Republicans a supermajority on the Supreme Court, the Republican justices have behaved as though they are all going down a GOP wishlist, abolishing the right to an abortion, implementing Republican priorities like a ban on affirmative action, and even holding that Trump has broad immunity from prosecution for crimes he committed using his official powers while in office. To be clear, right-wing litigants are not winning every case they bring before the justices, but on issues where the various factions within the Republican Party have reached consensus, the Republican justices reliably align with that consensus.
The lower courts, meanwhile, have become incubators for far-right policy ideas that often go too far even for a majority of the members of the current Supreme Court. Think, for example, of Judge Matthew Kacsmaryk’s failed attempt to ban the abortion drug mifepristone. Or an astonishing decision by three Trump judges that declared the entire Consumer Financial Protection Bureau (CFPB) unconstitutional. Both of these lower court decisions were rejected by the Supreme Court.
That there are some positions too far right even for many Republican members of the Supreme Court is a reminder of the diversity that exists among Trump’s judges. Some, like Justices Brett Kavanaugh or Amy Coney Barrett, are fully committed to using the courts to implement a long list of Republican ideas. But this cohort of judges also rejects at least some right-wing legal theories that would have catastrophic consequences for the country.
Both Kavanaugh and Barrett, for example, rejected the legal attack on the CFPB. They joined an opinion explaining that the plaintiffs’ legal theory had no basis in constitutional text or history, but they may also have been motivated by the fact that this theory could have triggered an economic depression if it had prevailed. Kavanaugh and Barrett also backed Trump’s claim that he has broad immunity from criminal prosecution for crimes committed in office, but on the same day they rejected a Texas law that would have given that state’s Republican legislature extraordinary authority to dictate what the media must print.
The other faction of Trump’s judges is more nihilistic. They include Kacsmaryk, who has turned his Amarillo, Texas, courtroom into a printing press for court orders advancing far-right causes. The nihilistic faction also includes judges like Aileen Cannon, the Trump judge who has presided over one of Trump’s criminal trials (and behaved like one of his defense attorneys), much of the far-right United States Court of Appeals for the Fifth Circuit, and Trump Supreme Court appointment Justice Neil Gorsuch.”
“When the Supreme Court endorsed broad presidential immunity from criminal charges last month, it raised troubling questions about whether and how former occupants of the White House can be held accountable for abusing their powers. In an initial attempt to answer those questions, Special Counsel Jack Smith this week unveiled a superseding indictment in the federal election interference case against former President Donald Trump—the same case that prompted the Court’s ruling.
The viability of United States v. Trump is unclear at this point. The Supreme Court charged U.S. District Judge Tanya Chutkan with reviewing the charges against Trump in light of its ruling, and any decisions she makes will be subject to appeal. There is no chance that the case will go to trial before this year’s presidential election, and if Trump wins, we can be sure he will find a way to make it disappear. Smith’s revisions nevertheless suggest what it might take to successfully prosecute a former president despite the obstacles that the Supreme Court has erected.
The most notable change from the original indictment is the excision of any reference to Trump’s interactions with the Department of Justice (DOJ). The government initially portrayed those conversations, in which Trump pressured DOJ officials to investigate his baseless claims of systematic election fraud, as part of a criminal scheme to overturn President Joe Biden’s victory. But the Supreme Court explicitly ruled out criminal liability based on such contacts.
Trump was exercising his “conclusive and preclusive” authority as president when he urged the DOJ to validate his stolen-election fantasy, Chief Justice John Roberts wrote in the majority opinion. The executive branch has “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” he wrote, “including with respect to allegations of election crime.”
As Justice Sonya Sotomayor noted in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, that holding seems to give presidents a lot of leeway to wield the federal government’s daunting prosecutorial powers against their political or personal enemies. Under the majority’s “view of core powers,” she said, “even fabricating evidence and insisting the [Justice] Department use it in a criminal case could be covered.”
Sotomayor also noted other possible implications of the majority’s position. When a president “uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” she warned. “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Roberts faulted Sotomayor for “fear mongering on the basis of extreme hypotheticals.” But we do not need imaginary scenarios to understand the perils of assuring presidents that they need not worry about the threat of criminal prosecution as long as they are exercising their “core powers.”
The proposed articles of impeachment against Richard Nixon alleged, among other things, that he made “false or misleading statements to lawfully authorized investigative officers and employees of the United States” and that he interfered with “the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, [and] the office of Watergate Special Prosecution Force.” The issue of whether Nixon could have faced criminal charges based on those allegations was never litigated, because he resigned before he could be impeached, and his successor, Gerald Ford, granted him a pardon that covered any federal offenses he might have committed in office. But according to the Supreme Court’s reasoning in Trump v. United States, Nixon’s corrupt interactions with the DOJ would have been off limits for federal prosecutors.
Beyond that specific instruction, the Court was hazy about the extent of presidential immunity. “We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote. “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”
What about Trump’s interactions with Vice President Mike Pence? Trump persistently pressured Pence, in private and in public, to intervene on his behalf during the congressional ratification of the election results by rejecting electoral votes for Biden. Citing the “contingent” electors that his campaign had recruited in several battleground states, Trump urged Pence to send both sets of slates “back to the states” so that legislators could resolve a nonexistent controversy about the actual results. Pence repeatedly resisted, saying he had no authority to do what Trump asked.
The original indictment portrayed those interactions as a key part of a criminal conspiracy to change the outcome of the election. That aspect of the indictment presented “difficult questions,” according to the Supreme Court. “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,” Roberts wrote. “Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.”
The question, Roberts said, is “whether that presumption of immunity is rebutted under the circumstances.” He noted that the vice president is acting “in his capacity as President of the Senate,” part of the legislative branch, when he oversees the electoral vote count. The government therefore “may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose ‘dangers of intrusion on the authority and functions of the Executive Branch.'”
Would that argument be correct? Maybe not, Roberts suggested: “The President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions. It is ultimately the Government’s burden to rebut the presumption of immunity.”
The new indictment tries to do that in several ways. It notes that Pence was Trump’s “own running mate,” meaning the intervention that Trump demanded would personally benefit both of them. It adds that “all of the conversations between [Trump] and [Pence] described below focused on [Trump] maintaining power.” The indictment points out that Trump “had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election.” It later reiterates that Trump “had no official role” in the certification process.
The indictment also emphasizes the private character of other conduct that might be construed as “official acts.” Regarding Trump’s pressure on state officials to reverse Biden’s victories, for example, the indictment notes that Trump “had no official responsibilities related to any state’s certification of the election results.” Discussing Trump’s “fake electors” scheme, the indictment likewise notes that he “had no official responsibilities related to the convening of legitimate electors or their signing and mailing of their certificates of vote.”
Like the original indictment, the revised version describes the notorious telephone conversation in which Trump leaned on Georgia Secretary of State Brad Raffensperger to “find” the votes necessary to reverse the election outcome in that state. But the indictment makes a point of noting that the participants in that call included “private attorneys” and White House Chief of Staff Mark Meadows, who “sometimes handled private and Campaign-related logistics” for Trump.
The indictment still relies on Trump’s social media posts to make the case that he pushed a phony grievance aimed at preventing Biden from taking office. But it argues that such communications should not be viewed as “official acts.”
Although Trump “sometimes used his Twitter account to communicate with the public, as President, about official actions and policies,” the indictment says, “he also regularly used it for personal purposes—including to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington, D.C. on January 6, pressure the Vice President to misuse his ceremonial role in the certification proceeding, and leverage the events at the Capitol on January 6 to unlawfully retain power.” And when Trump riled up his supporters that day, stoking their outrage at the prospect that Congress was about to recognize Biden’s supposedly fraudulent victory, he was speaking at “a privately-funded, privately-organized political rally.”
The indictment lists five alleged co-conspirators, “none of whom were government officials during the conspiracies and all of whom were acting in a private capacity.” It describes four as “private attorney[s]” and one as “a private political consultant.””
“All of the United States’ most important governing institutions are failing at once.
Congress, of course, has long been barely able to function. Every year, it struggles merely to fund the rest of the government, and the risk that it will trigger a debt ceiling breach that would set the global economy on fire is alarmingly high.
The Republican Party has atrophied into a cult of personality, centered on an authoritarian who literally tried to overthrow the duly elected United States government. The Democratic Party, meanwhile, may be unable to dislodge a senescent leader who is no longer capable of making the case against his imperious opponent.
And then there’s the Supreme Court, perhaps the only branch of the United States government that is capable of speaking in complete sentences right now. But the most recent Supreme Court term, which ended last week, makes one thing clear: Don’t confuse the Court’s relative eloquence for competence.
The justices are barely able to manage their own docket, even though it’s been shrinking for decades. They publish incompetently drafted decisions that sow confusion throughout the judiciary, then refuse to accept responsibility when those decisions lead to ridiculous and immoral outcomes. They take liberties with the facts of their cases, and they can’t even be trusted to read the plain text of an unambiguous statute correctly. In just the last few years, they’ve overruled so many seminal precedents that law professors no longer know how to teach their classes.
If the justices did not wield such awesome power, and if lawyers who practice before them did not have to treat them with ritualized obsequiousness, most of the justices would be laughingstocks. Few people this famous are so ostentatiously bad at their jobs.
And yet, despite their incompetence, the justices continue to claim more and more power — even though they simply do not have the personnel or expertise needed to address every policy question they’ve added to their own plates.”
…
“The Court’s inability to create sensible legal rules was on full display in its most closely watched decision of the term: Trump v. United States, the presidential immunity case.
The holding of Trump is truly shocking. One question that loomed over this case is, in the words of a lower court judge who earlier heard the Trump case, whether Trump could be prosecuted if he’d ordered “Seal Team 6 to assassinate a political rival.” Though the Trump opinion does not answer this question directly, it’s hard to read it as permitting such a murderous president to be prosecuted.
For starters, Trump holds “the courts have ‘no power to control [the president’s] discretion’ when he acts pursuant to the powers invested exclusively in him by the Constitution.” One of those powers is the ability to give orders to the military — the Constitution provides that the president “shall be commander in chief of the Army and Navy of the United States.”
As Justice Sonia Sotomayor writes in dissent, “When [the president] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Elsewhere in the opinion, moreover, the Court concludes that presidents enjoy an extremely strong presumption of immunity to prosecution whenever they perform any of the myriad duties entrusted to the president. Under these circumstances, a president is immune “unless the Government can show that applying a criminal prohibition … would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
The Court also established that immunity applies even if the president orders the Department of Justice to round up and prosecute all of his political enemies. As Chief Justice John Roberts wrote for the Court, “the Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” and thus a decision to use federal prosecutors for political ends falls within the president’s “conclusive and preclusive” authority.
When I first read the Trump opinion, which was joined only by the Court’s Republican appointees, I saw a blueprint for a dictatorship. I feared that the Republican justices responsible for this decision could not possibly have intended to authorize the president to murder his enemies unless creating such a dictatorship was their intent. But another decision handed down the same day as Trump casts doubt on this hypothesis.
The Court’s decision in Moody v. Netchoice, which was handed down just minutes before the Trump opinion, is as normal as the holding in Trump is aberrational. Briefly, Moody concerned two state laws, enacted by Republicans in Texas and Florida, that attempted to seize control over content moderation at major social media platforms. Writing for herself and five of her colleagues, Democratic Justice Elena Kagan makes it clear that these laws are not acceptable.
Moody stands for the unremarkable proposition that the government may not seize editorial control over the media. Kagan’s opinion was joined by Chief Justice Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, three Republicans who also joined most or all of the Trump majority opinion.
Moody casts serious doubt on the thesis that at least three of the Court’s Republicans intended to pave the road to a MAGA dictatorship. If these justices intended to give Trump the power to kill or arrest his critics, why didn’t they also give Trump’s party the power to control the media — a less disruptive and less violent method of consolidating authoritarian rule?
I don’t know the answer to this question, but I can rule out the possibility that the Republican justices did what they did in Trump because “the law” required them to do so. There is no Presidential Immunity Clause in the Constitution, and what the Constitution does have to say about prosecuting high-ranking officials cuts strongly against the Court’s decision in Trump.
Nor does Roberts’s opinion really even try to make the case that presidential immunity can be found somewhere in the Constitution’s text. Rather, the opinion is grounded in a policy judgment that the president should not be chilled from taking, in Roberts’s words, “bold and unhesitating action” by “the threat of trial, judgment, and imprisonment.”
Nevertheless, the fact remains that the Court just gave presidents the power to kill or arrest their rivals and critics. The Moody decision suggests that the immunity decision was not made to usher in a Trump dictatorship. But that simply means that these Republican justices, whether through blundering or reckless disregard for the risks created by their decisions, unintentionally laid the groundwork for murder and oppression.”
…
“Every state’s law permits abortions when necessary to prevent a patient from dying, and even most states with strict abortion bans permit it in at least some cases when a patient’s health is endangered by their pregnancy.
As a practical matter, however, these exceptions to state abortion bans are often worthless. Women have fled to blue states for abortions or been told to wait until they develop truly alarming symptoms because abortion providers are too afraid of being arrested if they perform a medically necessary abortion.
The reason why this is happening is clear. Because Roe v. Wade (1973) deactivated state abortion bans for half a century, state courts did not hear any cases clarifying when it is legal to perform abortions under state law. Indeed, many states enacted new abortion bans during the period when Roe was in effect that suddenly sprung to life when Roe fell, despite no court decisions whatsoever interpreting those laws.
Hospital lawyers, in other words, have no way to advise their clients on when it is legal to perform an abortion and when a doctor who performs one might face years in prison.
This situation is profoundly undemocratic. Every state agrees that abortion should be legal when necessary to save a life, and only about 11 percent of Americans believe abortion should not be legal under these circumstances. And it is rather obviously the Supreme Court’s fault. The Court eliminated Roe, a decision that gave doctors and patients a great deal of clarity about when abortions were legal, without giving any thought to how the law would operate in Roe’s absence.
This term, the Supreme Court was handed a golden opportunity to fix the abortion crisis that it created. Moyle v. United States asked the justices to enforce a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), which requires nearly all hospitals to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.”
That includes patients who require an abortion to stabilize their condition because EMTALA contains no exception for abortions.
Had the Court ruled that EMTALA means what it says, that would have done a tremendous amount to clarify when abortions are lawful, even in very red states.
But the Supreme Court didn’t simply refuse to read EMTALA according to its plain text. It refused to decide the Moyle case altogether, kicking it back down to a lower court for what could be months of more litigation. The non-decision in Moyle means that at least another year is likely to pass before women can stop waiting to develop sepsis before they can receive emergency medical care — and that’s assuming the justices don’t create an unwritten abortion exception to EMTALA when the issue reaches them again in the future.
A similar drama played out in United States v. Rahimi, a case where a federal appeals court concluded that a remarkably violent man, who allegedly committed six different shooting crimes and threatened to kill two women, has a Second Amendment right to own a gun.
To their credit, eight of the nine justices agreed that allowing this man to be armed is unacceptable. But their decision in Rahimi did little to clarify a 2022 Supreme Court decision which seemed to compel lower courts to rule that even this exceptionally violent individual gets to own a gun.
New York State Rifle & Pistol Association v. Bruen (2022) held that all gun laws are unconstitutional unless the government can “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” A modern-day gun law is particularly suspect under Bruen, moreover, if it addresses “a general societal problem that has persisted since the 18th century.”
The lower court that heard Rahimi struck down a federal law that disarms people who are subject to domestic violence restraining orders. But the worst part about this lower court’s decision is that it was correctly decided, at least if you take Bruen seriously. Violence between romantic partners, after all, existed in the 18th century. But there were hardly any laws addressing it, and no state made it a crime for married partners to beat their spouse until 1871.
And while Bruen compelled the immoral result reached by the lower court in Rahimi, its vague “historical tradition” test has baffled judges across the political spectrum, few of whom are trained as historians. Justice Ketanji Brown Jackson’s concurring opinion in Rahimi cited a dozen lower court opinions, all begging the Supreme Court to tell them how, exactly, Bruen is supposed to work.
But rather than offer clarity, the Court’s decision in Rahimi is pure gobbledygook. The new rule is that “a court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit,” whatever that means.
Rather than abandoning Bruen’s framework, which failed immediately and in spectacular fashion and which led a wide array of judges to take the unusual step of speaking out against the Supreme Court, the Court babbled about the history of gun laws for a few pages of an unusually short opinion, then left the lower courts to decide the fate of every gun law in the United States with no meaningful guidance whatsoever from the justices.”
…
“The Court’s just-completed term also featured one of the biggest power grabs in the Court’s recent history. Loper Bright Enterprises v. Raimondo makes the Supreme Court the final word on hundreds or even thousands of policy questions that Congress delegated to federal agencies like the EPA or the Department of Labor.
These questions concern some big policy disputes, such as who is entitled to overtime pay or how to reduce greenhouse emissions by power plants. But they also concern a much broader array of minor and often very technical questions that few people are likely to care about. The Loper Bright case itself, for example, asked whether the government or the vessels themselves must pay for federal observers who sometimes accompany fishing vessels at sea.
One bizarre thing about Loper Bright is that the Supreme Court already gave itself an unchecked veto power over anything involving what the Court calls a “major question” — that is, agency actions that involve a matter of “vast ‘economic and political significance.’” So the justices were already the final word on policy questions that sparked meaningful political disagreement. All that Loper Bright does is force the courts to decide many more less significant questions.
These are questions like how much residents of Kauai, Hawaii, should pay for cable television service, or whether a wastewater treatment plant in Taunton, Massachusetts, emits too much nitrogen — questions, in other words, that are both far beyond the expertise of the justices and so small they aren’t really worth the time of the nine most powerful officials in the most powerful nation that has ever existed.
Taken in aggregate, federal agencies have thousands or even tens of thousands of employees, many of whom have very specialized expertise and perform the very intensive fact-finding and information-gathering process that any responsible government must perform before it regulates.
The Supreme Court, by contrast, has nine justices, each of whom typically hires four law clerks to assist them. That’s nowhere near enough staff to handle the firehose of hypertechnical policy questions the Court just directed at federal courts, and ultimately at the justices themselves.
The unmanageable volume of cases headed the Court’s way will be further magnified by the Republican justices’ recent decision in Corner Post v. Federal Reserve, which effectively eliminates the six-year statute of limitations that used to apply to lawsuits challenging federal regulations.
Corner Post holds that this six-year clock begins to count not when an agency issues a new rule but when a new business is formed that is subject to that rule. Thus, any company under six years old is allowed to challenge any federal regulation that impacts it, even if that regulation has been on the books for decades.
So, thoughts and prayers to the justices, who will now have to deal with the unmanageable workload they’ve created for themselves, even as they are unable to handle the cases that are already on their docket in a competent manner.”
…
“The Supreme Court, in other words, no longer really functions as a court. It spends less and less time deciding bread and butter legal issues that should be the core work of judges, and more and more time resolving political questions that often should be decided by people who hold elected office.”
…
“Most government officials are subject to strict limits on their ability to accept gifts. Members of Congress and their staff, for example, are typically forbidden from accepting any gift valued at more than $50. Thomas, by contrast, has accepted millions of dollars worth of gifts from Republican-aligned billionaires. And Alito accepted a $100,000 private jet ride from Republican billionaire Paul Singer, before staying in a $1,000-a-day fishing lodge and reportedly drinking wine that costs over $1,000 a bottle.
Yet, after months of embarrassing news stories examining Thomas’s and Alito’s corruption, the Court responded with a toothless, largely unenforceable ethics code that does nothing to limit the justices’ ability to take similar gifts in the future.
Indeed, the primary effect of this ethics code appears to be giving the justices something they can cite to justify their ethical lapses. After Alito came under fire for flying flags conveying right-wing political messages outside of his two homes (Alito blames the flags on his wife), he cited the new ethics code — and specifically its statement that a justice is “presumed impartial” — to justify taking no corrective action.
These justices, moreover, continue to sit on corruption cases despite their own corruption. In Snyder v. United States, for example, they joined a majority opinion ruling in favor of an Indiana mayor who accepted a $13,000 gift from a trucking company, after the mayor’s city entered into a $1.1 million contract with that company.
So, the current Court is unable to write a coherent legal standard. It removes essential safeguards against tyranny and dictatorship. It can barely handle a shrinking caseload, yet appears determined to flood itself with some of the most difficult and low-stakes policy questions that come before the federal government. And it can’t even follow the most basic norms establishing that government officials should not be on the take.
We live in an age of babbling and incoherent leaders. The Supreme Court is no exception.”
“When Trump urged the Justice Department to investigate his baseless allegations of election fraud, Roberts says, he was exercising his “conclusive and preclusive” authority. The executive branch has “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” he writes, “including with respect to allegations of election crime.”
The indictment also alleges that Trump “attempted to enlist” Vice President Mike Pence to “use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Trump wanted Pence to reject electoral votes for Joe Biden from several battleground states and send them back to state legislatures to consider whether he actually won them. When the president and the vice president “discuss their official responsibilities,” Roberts says, “they engage in official conduct.” The government therefore has to overcome a presumption of immunity, which means the district court must consider whether prosecuting Trump based on these conversations would impermissibly intrude on executive authority.
Other allegations involve Trump’s interactions with state officials and private parties. Trump tried to persuade state officials that the election results had been tainted by systematic fraud, and his campaign enlisted “alternate” electors whom he wanted state legislators to recognize instead of the Biden slates.
Those actions, Trump maintained, were “official” because he was trying to ensure the integrity of a federal election. To the contrary, Special Counsel Jack Smith argued, Trump was trying to undermine the integrity of the election, and he did so in service of his interests as a political candidate, not as part of his presidential duties. According to the Supreme Court, the district court therefore must determine, as an initial matter, “whether Trump’s conduct in this area qualifies as official or unofficial.”
Finally, the indictment cites Trump’s behavior on January 6, 2021, the day his supporters, inspired by his phony grievance, invaded the U.S. Capitol, interrupting the congressional tally of electoral votes. Trump’s conduct that day consisted mainly of his speech at the pre-riot “Stop the Steal” rally and various tweets. Roberts notes that the president has “extraordinary power to speak to his fellow citizens and on their behalf.” Generally speaking, his public communications therefore “are likely to fall comfortably within the outer perimeter of his official responsibilities.” Whether Trump’s communications counted as official acts, Roberts says, depends on the “content and context of each,” requiring “factbound analysis” by the district court.”
…
“The majority says Trump cannot be prosecuted for urging the Justice Department to embrace his stolen-election fantasy because such conversations fell within his “conclusive and preclusive” authority to enforce federal law. But the president is also commander-in-chief of the armed forces, which suggests that orders to the military, whether they involve assassination or a coup, likewise trigger absolute immunity. The president has plenary authority to issue pardons, which suggests impeachment might be the only remedy if he takes a bribe in exchange for granting one.
That remedy, as Roberts notes in rejecting Trump’s interpretation of the Impeachment Judgments Clause, could be foreclosed by timing or a lack of political will. If a president abuses his powers toward the end of his term (as happened in this case), resigns immediately afterward, or conceals his crimes well enough that they do not come to light until after he has left office, impeachment will not be a viable option, and his prosecution could be blocked by “absolute” or “presumptive” immunity, leaving no way to hold him accountable.
Roberts glides over such possibilities, focusing instead on the threat to presidential authority that allowing prosecution for “official acts” could pose. One of the charges against Trump, for example, alleges that he defrauded the United States, which is a felony punishable by up to five years in prison under 18 USC 371. Section 371, Roberts notes, “is a broadly worded criminal statute” that can cover “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Since “virtually every President is criticized for insufficiently enforcing some aspect of federal law,” he says, “an enterprising prosecutor in a new administration may assert that a previous President violated that broad statute.”
Without immunity, such prosecutions of former presidents “could quickly become routine,” Roberts worries. “The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors.””
…
“Barrett disagrees with the majority’s holding that “the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege.” In a bribery case, for example, the official act that a president allegedly performed in exchange for money would be clearly relevant in establishing his guilt. “Excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution,” Barrett writes. “To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.”
In response, Roberts says “the prosecutor may point to the public record to show the fact that the President performed the official act” and may submit “evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act.” But the prosecutor may not offer “testimony or private records of the President or his advisers probing the official act itself.””
“Both sides in the case agreed that a former president can be prosecuted for “unofficial acts,” a point that Chief Justice John Roberts affirmed in his majority opinion. But Roberts added that a former president is “absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”
It is not clear exactly which conduct falls into that “exclusive sphere,” although Roberts said conversations in which Trump urged the Justice Department to investigate his bogus claims of systematic election fraud clearly did. Adding to the uncertainty, the majority said even “official acts” outside “the core” of a president’s duties merit “at least a presumptive immunity from criminal prosecution,” which the government can overcome only if it “can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.'”
The strictness of that test, combined with the lack of clarity about which acts are “official,” suggests that the distinction between “absolute” and “presumptive” immunity is apt to dissolve in practice. And even if it proves meaningful, the Court said absolute immunity might ultimately be required for all conduct “within the outer perimeter” of a president’s “official responsibility.”
Under the majority’s reasoning, Justice Sonia Sotomayor warned in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, a president “will be insulated from criminal prosecution” when he “uses his official powers in any way.” That shield, Sotomayor said, would extend to a president who “orders the Navy’s Seal Team 6 to assassinate a political rival,” who “organizes a military coup to hold onto power,” who “takes a bribe in exchange for a pardon,” or who insists that the Justice Department use fabricated evidence in a criminal case.
Instead of explaining why immunity would not apply in such situations, Roberts faulted Sotomayor for “fear mongering on the basis of extreme hypotheticals.” He dismissed the threat posed by lawless presidents because he was focused on the supposed need to protect “an energetic executive” from the threat of criminal liability.
As Sotomayor noted, however, presidents have been operating under that threat for a long time. “Every sitting President,” she wrote, “has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office.”
Former President Richard Nixon, who did not suffer from a notable lack of executive energy, evidently shared that long-standing assumption. After he resigned amid the Watergate scandal, Nixon accepted a pardon from his successor, Gerald Ford, that covered any federal offenses he may have committed as president.
According to the proposed articles of impeachment, those offenses included many acts that would count as “official” in Roberts’ book, such as “false or misleading public statements,” misuse of the CIA and the IRS, and interference with an FBI investigation. If Nixon was immune from prosecution for those acts, his pardon is a bit of a puzzle.
As that episode illustrates, we need not conjure “extreme hypotheticals” to understand the danger of a president who feels unbound by the law. In the real world, the risk of presidential paralysis pales beside the risk of presidential impunity.”