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When the President Does It . . . He’s Immune

The Basic Finding of the Court

The Supreme Court in Trump v. United States held that presidents — present, past, and future — have immunity from criminal prosecution for their official actions.

There are many unsettling aspects to this decision.

 The starting point should be the Constitution. Read the Constitution. Read it again. No such immunity is in the Constitution’s text. Moreover, in our 230-year history, the Supreme Court has never held that such immunity existed. That is, until July 2024, when the Court discovered such immunity. Apparently, the Founders’ mistake has been corrected centuries later.

The Court held further that there is absolute immunity for “core” presidential actions, those where the Constitution gives “conclusive and preclusive” authority to the president. This immediately raises the question of what constitutes a “core” action. While indicating their list was not exhaustive, the Court asserted that the power to pardon, remove executive branch officials, and recognize foreign countries fell within the definition of core presidential actions.

This list is noteworthy for several reasons. First, the powers to remove officials and recognize foreign countries are not “core” enough to have been enumerated in the Constitution. They are not mentioned in the text. Instead, the president has conclusive and preclusive authority in these areas only because the Supreme Court, well after the Constitution was adopted, said so.

Presidential authority to pardon is in the Constitution but think about what absolute immunity means here. No matter how corrupt the motive for the act, an ex-president cannot be prosecuted for granting a pardon. Even if it could be proved that the president solicited $1 million for it, he is immune. [I am using “he” or “his” throughout for ease of reading.] The bribery laws now apply to everyone in the U.S. except one person.

The Court did say that immunity could extend only to “official” actions. The opinion did not give an authoritative test for separating the official from the unofficial, but it indicated that the scope of official acts is broad. Official acts, they write, are all actions within the “outer perimeter” of a president’s powers and duties. Only acts “manifestly or palpably” beyond his authority are unofficial or private. As you will see below, it is left to others to determine what the definition of “’manifestly or palpably’ beyond his authority” actually means.

When us ordinary folk think about core presidential powers, we probably think about the president as commander in chief, his role in foreign affairs, and his setting legislative priorities in taxation, healthcare, immigration, civil rights, and myriad other areas. Trump, like every president before him, was not prosecuted for any of these “core” areas. Moreover, he was not prosecuted for the core areas enumerated by the Court. He was not prosecuted for pardoning someone. He was not prosecuted for removing someone from the executive branch nor for recognizing a foreign country. Instead, he was prosecuted for trying to prevent the results of a valid election by seeking sham Justice Department investigations, pressuring a vice president to ignore his duties, urging state officials to “find” votes, assembling “electors” who have not been elected, and urging a throng to go to the Capitol where electoral votes were to be accepted. Would our founders have seen these as official presidential acts? The Court shoehorns them into official acts, but they were primarily, if not entirely, the acts of a candidate trying to retain his office. These unprecedented political acts, not the normal duties of a president, brought the unprecedented prosecution.

Can a President Commit a Criminal “Official” Action?

The president is never authorized by the Constitution or Congress to take a criminal action. You might think, then, that he cannot be acting officially if he commits a criminal act. Not according to this decision. So, for example, the Court stated that the investigation and prosecution of crimes is a quintessentially executive function. In 2020 Trump allegedly urged the Justice Department to act on bogus claims of election fraud. The Supreme Court concluded that even if Trump had sought sham investigations, even if his behavior was criminal –he is absolutely immune for this conduct because it falls within his executive function. At least when it comes to the president, even criminal acts can be official ones. This means that if Trump had ordered the arrest of duly elected electors so that they could not cast their votes, he would have had had immunity from criminal prosecution.

Is Urging Someone within the Executive Branch to Break the Law an Official Act?

The Court’s expansive notion of official actions is illuminated by its discussion of Trump’s alleged pressuring of Vice President Pence not to certify the valid electoral college results. Chief Justice Roberts writes, presumably with a straight face, that “our constitutional system anticipates that the President and the Vice President will remain in close contact regarding their official duties….” This is asserted without any citation. This is not surprising since there is nothing to cite. The Constitution nowhere suggests that this is a required or even a desirable facet of the relationship between the two. It is also historically inaccurate; there has often been little-to-almost-no contact  between a president and a vice president. Sometimes there has been outright hostility between them. Roberts continues that it is important for the president to talk about official matters with the Veep to ensure continuity in the executive branch and to advance the presidential agenda. It may be nice, or even desirable, for this to happen, but it is not a requirement in the Constitution.

The Court then concludes that whenever the president and the vice president discuss their official responsibilities, they engage in official conduct. Au contraire. Trump was not discussing any presidential duties when pressuring Pence. The Court admits that the president had no official role in the January 6 certification; it was the sole duty of the vice president. Even so, the Court held that Trump’s pressure on the vice president involved official presidential conduct. To repeat, the Court held that it was official conduct even though the president had no official role in the certification. An official act can, apparently, occur even when there is no official role or duty.

Okay. Now Things Get Complicated

Even if it had been an official act, Trump does not necessarily mean that he can’t be prosecuted for his attempt to get Pence to do something illegal. The Supreme Court stated that if a president commits a criminal act that is not within his core duties but is an official act, he may have absolute immunity or presumptive immunity. With presumptive immunity one assumes he has immunity until someone (a court) decides he doesn’t. This Court, however, chose not to determine the issue of immunity in this instance because it had no guidance from previous cases. No surprise there; there has only been one case raising the issue—this one. (N.B. There has been only one such case since the country began — this one.)

Nevertheless, the Court gave this muddy guidance: In its opinion the Court said that if an action has presumptive immunity, the prosecution must overcome the presumption by showing that its prosecution has no danger of intruding on the authority and functioning of the executive branch. As for Trump’s pressure on Pence, the Court averred that because the VP acts as President of Senate when certifying the electoral vote, this is not an executive branch function. The president plays no role in it, and thus, the Court said, prosecution based on this particular conduct may not pose a danger of intruding into the authority of executive branch. Then, without explaining how, maybe it will. With this mysterious pronouncement, the Court sent the issue back to the lower court to figure it out.

What is the Lower Court Supposed to Do?

The Court sent other matters back to the trial court that had been hearing the original case. In doing so, they are asking the lower court to determine immunity (or not) on several issues. Again, the Court offered only murky guidance. So, for example, Roberts stated that Trump had no official role in the selection of electors. On the other hand, the president has a role in enforcing federal election laws. Was the attempt to round up fake electors an official act, and if so, was presumptive immunity overcome? Take a whack at that one, trial court.

And this one. The Court said that a president has extraordinary power to speak to the public, but at times he may be speaking in an unofficial capacity as a party leader or a candidate. Were Trump’s actions on January 6 official acts, and if so, was presumptive immunity overcome? Chew on that, trial court.

Let me suggest a test that the trial courts might use: If someone outside the government could have done the same thing that an ex-president seeking immunity did, then those actions were not presidential acts. So, for example, a candidate who is not an incumbent might pressure a state Secretary of State to “find” votes or seek to assemble false electors with the implicit or explicit message that when he becomes president, he will remember who his friends and supporters were. A candidate who is not an incumbent could rile up a throng of his supporters in a public park urging them to prevent the certification of electors. If the candidate could be prosecuted for these actions, an ex-president should not be immune for them.

(Concluded July13)

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Snippets

“But how aboutism” is rampant. Trump is indicted. And indicted again. And again and again. A constant response from the right: But how about the Biden family? But how about Joe Biden’s lies? But how about Joe Biden’s being on vacation? A response to the right’s how aboutism is, How about the Trump family? Questions are raised about Clarence Thomas and Samuel Alito. A response: How about Sonia Sotomayer’s book deal? And so on. Such how aboutism is just another way for us to talk past each other. Perhaps the how abouters address legitimate issues about Hunter Biden’s sleaze, but that says nothing about Donald Trump’s behavior. The concerns about the Trump family’s grifting are important, but it says nothing about the appropriateness of the behavior of the Biden family. We should address the important issues that confront us, not just try to deflect attention from them.

The liberal cable-news host was talking about the vacations and other things very, very rich people have given to Clarence Thomas. The host insinuated that if Thomas wanted to live like the extremely wealthy, he could do that if he left the Supreme Court for a position in a private law firm. Thomas, however, the host said, wants to retain his power, and so do some conservative richies. Thus, in what are extremely friendly gestures that almost none of us will ever encounter, Thomas has taken vacations regularly not on his dime, but on the tens of thousands, no, hundreds of thousands, of others’. What struck me, however, in this report was not only the slippery ethics of donor or donee, but also the host’s comment that Clarence Thomas gets only “a middle class, an upper middle class” salary as an Associate Justice of the Supreme Court. He makes $265,000 a year. The median household income in this country is about $70,000 per year. Clarence Thomas alone, even without considering what his wife Ginni Thomas procures,  makes more than 95% of what other households make. Please, let’s not call this middle class of any sort.

“Money is better than poverty, if only for financial reasons.” Woody Allen

“Money really isn’t everything. If it was, what would we buy with it?” Tom Wilson

Did you ever wonder how the fool soon parted from his money got the money in the first place?

“When I was young, I used to think that wealth and power would bring me happiness. . . . I was right.” Gahan Wilson.

In the small-town bar, as I waited for my beer, a picture of Donald Trump came on the television. Without stopping to think, I said, “Trump is a horse’s ass.” The guy on the next stool socked me in the nose and stalked out. As I was stuffing paper napkins up my nostrils, I somewhat apologetically said to the bartender, “I should have realized that there could be Trump lovers in here.” The barkeep replied, “He’s not. He is a horse lover.”

“He was like a cock who thought that the sun had risen to hear him crow.” George Eliot.

A wise person said, “A windbag is a person who is hard of listening.”

Another wise person said, “The more you speak of yourself, the more you are likely to lie.”

“There is only one rule for being a good talker; learn to listen.” Christopher Morley.

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Snippets

During recent Fourth of July ceremonies, I was reminded that I was taught that it was disrespectful to applaud after the national anthem for several reasons. You don’t applaud after an anthem or hymn. And you don’t applaud the performer because the point is to honor the country’s symbol, which requires no applause, not to praise the performer. I am willing to bet, however, that many people think they are doing right when they clap after the last bar.

Mark Clague in his interesting book O Say Can You Hear? A Cultural Biography of The Star-Spangled Banner suggests that each week at NFL games different patriotic songs be played starting with the National Anthem. In following weeks perhaps America the Beautiful, Lift Every Voice, God Bless America, This Land Is Your Land, and My Country ’Tis of Thee would accompany the raising of the flag. I think that this is a good idea for all American sports and should also be the norm for baseball’s seventh inning stretch’s patriotic song.

It seems odd to me that hospitals now release patients after giving them a goody bag containing a toothbrush, warm socks, maybe soap, etc.. But I use some of the stuff I received recently.

Who was the innovator who first started mowing patterns onto sport fields?

“It takes two to speak truth—one to speak and another to hear.” Thoreau.

I wrote the following in this blog’s post of June 30, 2023, titled “The Job Comes with Pay, Power, Prestige . . . and Criticism . . . and Billionaires’ Gifts”:

“Congress has a limited sort of check on the Supreme Court. It can pass a new law if the Court has wrongly interpreted a statute. I am pretty sure that this has happened, but I can’t come up with an example. Perhaps someone can help me out.”

My friend Dean came to my rescue, referring to the Lilly Ledbetter Fair Pay Act of 2009. Ledbetter worked as a supervisor for the Goodyear Tire Company for nineteen years. As she neared retirement, she learned that she was being paid significantly less than men doing the same work with equal or less seniority. She sued Goodyear under Title VII of the Civil Rights Act of 1964. The Supreme Court overturned her trial court victory. The Civil Rights Act contained a statute of limitations that required a suit for pay discrimination within 180 days of the discrimination. The Court held that the clock started ticking with the first discriminatory paycheck even if employees had no way of knowing they were being screwed. Of course, in a place where employee pay is not public knowledge few would know immediately of the discrimination against them. Ledbetter was working for Goodyear for over a decade before she learned that she was being shortchanged in comparison to men. Under the Court’s interpretation, if a company could keep its discrimination hidden for half a year, it was in the clear. The Lilly Ledbetter Fair Pact Act of 2009 in essence overruled the Supreme Court by amending the Civil Rights Act so that the 180-day statute of limitation starts anew with each discriminatory paycheck or compensation. And, oh yes, the Supreme Court Justice who wrote the opinion that allowed corporations to discriminate was Samuel Alito. He was joined by John Roberts, Antonin Scalia, Anthony Kennedy, and Clarence Thomas.

The time, alas, has come to consider moving to a “retirement” community. We were at an open house for such a facility along with a half-dozen other couples. I started chatting with a man in a beautiful blue shirt. After we introduced ourselves to each other, we drifted apart to get some cheese cubes and meet others. After the illustrated presentation, the blue-shirted attendee came over to me and said, “It was nice talking with you. I hope we meet again, but, sorry, my memory isn’t what it once was. What was your name again?” I paused for quite a bit and finally replied, “When do you need to know?”

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The Job Comes with Pay, Power, Prestige . . . and Criticism . . . . and Billionaires’ Gifts (concluded)

So. Back to Justice Alito. Life tenure and unchecked decisions might lead you to think that Supreme Court justices would not be affected by criticisms. You would be wrong. (See the AJsdad.blog, March 11, 2022, “ACB Told Us So” and the post of March 2, 2022, “Partisan Hacks, Comprised Of”.) Recently Samuel Alito has given us an example of judicial thin skin. A respected news organization uncovered information that Alito had taken an undisclosed expensive vacation paid for by a billionaire who has interests with cases before the Supreme Court. That news organization did the professional thing by asking Alito for comments before publishing the report. Alito blew them off. Instead, before the news report was published, he placed a prebuttal in the Wall Street Journal.

Alito, echoing an earlier defense by Clarence Thomas of similar behavior, said that the trip did not have to be disclosed because it was “personal hospitality.” We can all understand that. I certainly accept personal hospitality, but I wonder about it in Alito’s circumstances. At least in my circumstances, such hospitality is reciprocal. Someone entertains me with dinner or drinks or lodging, and almost always I have reciprocated in some fashion. I wonder: How often has Samuel Alito invited the billionaire over for dinner? Is it “personal” if the hospitality is only in one direction? Alito did not disclose such reciprocity if it has happened.

Alito’s WSJ rebuttal also said that he had merely filled a seat that otherwise would have gone empty on the billionaire’s private jet, implying that somehow plunking his behind there really cost the billionaire nothing. However, I know that seat was not offered to me, and I doubt that it was offered to you. But somehow it was offered to Alito. Hmmmm.

Alito went on to justify his failure to recuse himself from the cases that involved the billionaire’s interests. Alito said the billionaire’s name was not on the court papers and, furthermore, there is no reason ever to conclude that he might be biased. Hey, he barely knows the guy he said. Alito saw no possible contradiction between the trip being “personal hospitality” yet barely knowing the billionaire. Perhaps one might conclude that he was invited on the trip because he was a Supreme Court justice???

Alito’s defense petulantly implied, “How dare you criticize me!” Right wingers, including the Wall Street Journal editorial page, have more explicitly promoted this message. The pundits proclaim that the story about Alito is partisan, published with the express purpose of undermining the legitimacy of the Supreme Court. ProPublica, the organization that performed the Alito investigation, is a nonprofit not aligned with any political party. It is well regarded; it has won a half-dozen Pulitzer Prizes as well as other awards. And, ironically, its founding editor came from the Wall Street Journal.

The critics claiming partisanship have not claimed that ProPublica got the facts wrong. This reminds me of watching Stephen Colbert playing the role of the right-wing bloviator on Comedy Central who said, “I am against the facts because the facts are liberal.”

Moreover, it seems laughable that the conservatives would attack the reporting about Alito as an attack on the legitimacy of the Supreme Court. Those same pundits have regularly attacked Biden, and no doubt before that, Obama and probably Bill Clinton, if they are old enough. By their logic, those criticisms were attacks on the legitimacy of the presidency. I think, however, we can all agree that the presidency has survived. So much so, that a slew of conservatives want to be president. Reporting about Alito will not destroy the legitimacy of the Court. If one of those right wingers becomes president, he or she will have no difficulty in finding people to put on the Supreme Court.

If perception of the Supreme Court’s impartiality is harmed by this contretemps, however, it will not be because of the messenger, the accurate investigative reporting. It will be because of Samuel Alito’s (and Clarence Thomas’s) actions. Apparently he believes that unless there is evidence that he took a quid pro quo, he did nothing wrong. We should trust him and the institution he is part of even if the lavish fishing trip looks fishy. Alito rejects the two-millennia-old, conservative advice contained in Caesar’s-wife admonition. Appearances do not matter to Alito and his defenders.

Alito also seems unaware of basic human nature. Who you hang out with affects your views. If I spend most of my time with Tamil Tigers, you can expect me to have different opinions and ideas than if I am a regular at an Iowa quilting circle. Without being consciously aware of it, we soak up all sorts of things from those we converse, sing, worship, or play with.

Normal people want to be liked by those they spend time with. This highlights a great problem with our nation today. The rich have always had outsized power in our government, but especially since the Supreme Court has lifted and relaxed limits on campaign spending, politicians have needed more and more money. Government officials, as a result, spend more and more time with the ultra-rich, and in the normal course of human events, that, at least subtly, affects how they see the world. And now we find out that justices of the Supreme Court also spend time with that tiniest fraction of the upper one percent. When was the last time you did? There are fewer than a thousand billionaires out of our vast population. You are less likely to encounter a billionaire than a deer on the highway. What are the odds that out of mere happenstance, two billionaires from that tiny population only out of feelings of bonhomie have become friends with two Supreme Court justices?

And while I expect those whom I hang out with affect my views in all sorts of ways, I would think I would be especially attentive to those who had given me gifts valued at more than six figures. (Of course, I do not know that from personal experience. How often have you received a gift of more than $100,000?) I think it would be natural to want that person to like me. Apparently, Alito would like you to believe that his nature is different.

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Snippets

The baseball game was on a streaming service. When I muted the sound to read, closed captioning came on. I assume that the captions were not entirely accurate, or the commentary was unusual. One time when I looked up from my book, I found out that the Yankees were playing the “Baltimore Oreos” and another time a player struck out with a “swing animist.

The main point to watching the Yankees right now is Aaron Judge. Each time he comes to bat, I wonder what his birth mother is thinking.

I don’t know the couple, but from public presentations they look happy. There are pictures of them looking tenderly and smiling at each other and laughing together. No one seems to doubt their marital devotion, and perhaps more wives could learn from this marriage. Wives should never, ever, ever burden their husbands with the stuff that is truly important to them. Keep it to yourself and don’t share. And husbands—and I suspect this will be easier for many of us—should never, ever pry into what our wives consider important. Apparently, this has worked for Ginni and Clarence Thomas.

Whenever there is an evacuation order because of a predicted natural disaster, some people don’t leave. Who are they? Are they just a random collection of the affected people? Or do they tend to share certain demographic characteristics? If so, what are they? And is more effort and money spent helping these people on average after the event compared to those who evacuated? Do we ever try to collect that difference from them?

Hurricane Ian should produce self-reflection, but I doubt Ron DeSantis does much of that. He has been quite strong in stating that the current federal administration from the President on down comprise incompetent socialists. Even so, the man came hat in hand–close to groveling–asking for federal assistance for Florida. He was met with words of graciousness: This is America, and this is what Americans do: help each other. Did DeSantis blush? I didn’t see it, did you? He should have. A decade ago when new to Congress he voted against aid to victims of Hurricane Sandy. He had “principled reasons,” which few ever thought were sincere. It was a political stunt to appeal to supporters who were happy to stick it to the liberal Northeast. Those “principled reasons” are not mentioned by DeSantis now as he begs for federal aid. The virtue of DeSantis is flexible, as flexible as . . . . What simile do you have? I’ll try one. His virtue is as flexible as that of Brett Favre’s.

Brett Favre might have been the poster child for the Mississippi scandal, but clearly there is corruption there that goes beyond one ex-football player. Case in point is the shocking water problem in Jackson, which gets reported as a problem separate from the use of welfare money for volleyball courts. But they are both examples of the same broken system that is Mississippi. There are reasons why it is so poor. I have a car old enough to have an outmoded sound system with a CD player. My collection of discs has been sitting untouched on shelves for years, and I thought I would listen to them again while driving. I grabbed four or five, and by happenstance found myself listening to Nina Simone singing her famous song from years ago, Mississippi goddam. I recommend it.

I was told this was a state motto of Alabama: Thank God for Mississippi.

Brett Favre has said that he thought that he had suffered three concussions in his pro football career, which ended in 2010. He counted three because he had been knocked unconscious three times. (Gosh. How many times have you been rendered unconscious by your work?) Since then, he has learned more about concussions, and has realized that every time he saw stars or heard ringing in his ears, he probably had a concussion. By those standards, he had “thousands” of concussions. He has talked, quite touchingly, about not remembering part of the childhood of his oldest daughter and that he does not remember at all her playing soccer. (Hence his eagerness to build a volleyball court in her honor?) Perhaps these are extenuating circumstances for Favre (well, no, they’re not), but I doubt that Ron DeSantis has similar extenuating circumstances for his flexible virtues. Instead, he is like a pocket left after floodwaters recede, scum.

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Stitching a Different Supreme Court Nine (concluded)

We have been speculating on ways to make a less political Supreme Court and have focused on a proposal in which the president could nominate a new Supreme Court Justice every two years. This, of course, would mean that the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine Justices at random, there is another possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. Reserve judges would be available whenever one of the regular nine was unavailable for whatever reason such as illness or a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are also major leaguers and remain on the team. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for about thirty years; Chief Justice Roberts and Samuel Alito have been on the Court for over fifteen years and are expected to serve for another decade or more.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.

The partisan games in which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett should end. Such maneuvers that strengthen the notion that the Court is not a neutral body should lessen. Similarly, the recent situation calling for the resignation of Justice Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it gave Biden two appointments in the next four years. Instead, it should start after the next presidential election with the newly-elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?

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Snippets

In anticipation of the overruling of Roe, states passed new abortion laws, a number of which do not permit abortions even when the pregnancy was the result of rape or incest. These laws were passed primarily with the votes of conservative men. I assume they are concerned that otherwise their potential offspring might not be carried to term.

After the draft abortion opinion was leaked, many people, including Clarence Thomas, said that the leak irrevocably harmed trust in the Court. Now that the opinion is out, I no longer hear how harmful the leak was. How much was your faith in the Supreme Court harmed by the leak?

I have been thinking of a truism: Life is a sexually transmitted disease.

At this time of year, I remember the truism: Nothing is responsible for more false hopes than one good cantaloupe.

Was the comedian right who said that he believed in abortion and that often it should be mandatory–and retroactive?

At the riveting January 6 hearings, I notice that witnesses and representatives swig and swallow water from little plastic bottles. Is this environmentally unsound practice some sort of security measure?

I had not thought of Donald Trump as a contemporary artist before, but I am almost positive that I saw broken crockery on the floor with ketchup dripping down the wall in an offbeat gallery a few years ago.

The football coach’s prayers at the 50 yard line are constitutionally protected according to the Supreme Court. I assume that he was unaware of Jesus’s guidance in Matthew 6: 5-6: “And when you pray, you must not be like hypocrites. For they love to stand and pray in the synagogues and at the street corners, that they may be seen by others. Truly, I say to you, they have received their reward. But when you pray, go into your room and shut the door and pray to your Father who is in secret. And your father who sees in secret shall reward you.”

Many “patriots,” it seems, besought pardons from then President Trump for their activities in trying to overthrow an election. Trump did give pardons and commutations to some, such as Michael Flynn and Roger Stone, for crimes that were not related to January 6. Why, then, not to the others? I went to the closet in the guest room where I had tucked away my lawyer’s hat and put it on. I wondered what advice I would have given Trump about those pardons. First, I thought, “Get the money upfront.” Criminal defense attorneys know that it is hard to collect fees once a client has been sentenced to jail. And with Trump’s penchant for stiffing people (and for his not-very-likely-but-wished-for incarceration), the imperative–Get the money upfront–would have been even more important. Once I got beyond that financial consideration, I realized that I would have advised Trump not to give out pardons for anything related to January 6. Once Jim Jordan, Rudy Giuliani, Mark Meadows, and others were pardoned, they could no longer incriminate themselves about January 6 because they would no longer face criminal charges concerning those events. They could no longer validly claim the Fifth Amendment right against self-incrimination. Legally they would be required to testify about anything to do with trying to stop the lawful transfer of power or face contempt. It could not help my hypothetical client Trump to have such testimony. Therefore, I would have advised, don’t give the pardons.

The person who claims to be a self-made man usually admires his maker.

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The Supreme Court’s Sensitive Places

          Lawyers like other people have always had concerns about sensitive places, such as bikini wax zones, Adam’s apples, and bunions. Now, however, they will be litigating about different kinds of “sensitive zones,” for the Supreme Court in its recent gun case has indicated that, although there is a constitutional right to carry firearms in public, their presence can be restricted in “sensitive zones.”

In District of Columbia v. Heller (2008), the Supreme Court recognized (created?) a right that had not been established in the first two centuries of the nation: Ordinary, law-abiding citizen now had the right under the Second Amendment to possess a handgun in the home for self-defense. Last week in New York State Rifle and Pistol Association, Inc. v. Bruen the Court expanded that right to carrying a handgun for self-defense outside the home. The Court found a New York law that required a showing of a special need to pack a pistol in public, whose roots go back to 1905, unconstitutional.

The Court concluded that constitutional rights have the scope they were understood to have when adopted, and that the definition “bear” in the Second Amendment naturally encompasses the right to carry a handgun in public. Therefore, they reasoned, the state must justify any restriction on that presumptive right. The majority emphatically rejected what most lower courts had done when they had considered the interests a gun restriction promotes. Instead, SCOTUS decided that a limitation on carrying can only be constitutionally upheld if it falls within the country’s historical tradition of firearm regulation no matter what good purposes are served by the gun safety measure. So, after reviewing history without considering the benefits the law serves (surprise, surprise), Clarence Thomas, writing for the majority, stated “[W]e conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement.” And so now there is a constitutional right for you to carry a handgun next to me in Times Square. And for me to carry a handgun next to you.

          In the recent Bruen case, however, the Court suggested that there were exceptions to this right. The 2008 Heller decision had discussed longstanding laws forbidding guns in “sensitive places” such as schools and government buildings. Thomas in Bruen stated, “Although the historical record yields relatively few 18th and 19th century ‘sensitive places’ where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. We therefore can assume it settled that these locations were ‘sensitive places’ where arms carrying could be prohibited consistent with Second Amendment. And courts can use analogies to those historical regulations of ‘sensitive places’ to determine those modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.”

          And, thus, lawyers and others will be occupied with the question of what defines “sensitive places” for Second Amendment purposes. The Court did not attempt any comprehensive definition of “sensitive places,” but it rejected New York’s claim that they include the places where people congregate, and where law enforcement is presumptively available. The streets and parks of your town are not such zones. Apparently, however, schools, government buildings, and polling places are.

          But hold on. The Bruen opinion seemingly relied on a law review article, written by David B. Kopel and Joseph G.S. Greenlee, entitled The “Sensitive Places” Doctrine: Locational Limits on the Right to Bear Arms. In finding that New York’s law was not constitutional, Thomas wrote that the most important history in understanding a right was the history shortly before and after the founding. Kopel and Greenlee’s survey of laws found few restrictions on gun carrying before the Civil War. They found no ban on firearms at legislative assemblies and wrote, “In general, Americans did not seem to mind people coming armed to attend or participate in legislative matters. Congress had no rules against legislative armament, and through the mid-nineteenth century, it was common for Congressmen to be armed.” Delaware in 1776 did prohibit guns at polling places, but the authors found no other such restriction until Reconstruction. One example does not seem like a tradition.

          Only after the Civil War did the country start to have widespread limitations on firearms: “In the half-century following the Civil War, the former slave states were the center of the gun control movement. . . . The racial subtext of Southern gun control was obvious.” Thomas in Bruen, however, stated that the history a hundred years after the founding should not bear much weight in determining our traditions in restricting guns. And yet, some of the “sensitive places” are even much more recent than Reconstruction. For example, “bans on guns in schools are, in most places, of similarly recent vintage. For most of the twentieth century, students brought guns to school. . . . When Antonin Scalia was growing up in New York City in the 1950s, he carried a rifle on the subway on his way to school, for use as a member of his school’s rifle team.” Only in 1980s and 1990s was there a widespread ban on guns at schools. The authors conclude, “Given the relatively thin historical record in support of the sensitive places doctrine, attempts to elaborate and extend the doctrine by analogy may be difficult.”

          By the current Court’s standards, then, the historical tradition of sensitive places where guns can be restricted is, in fact, inconsistent with Thomas’s assertion that we should look primarily to the years immediately before and after the founding.  The Court did not discuss the rationale for re-invoking such a doctrine. If they had, they would have had to recognize that the doctrine is based on reasoning that the Court states could not be used to justify the New York law. Kopel and Greenlee state that an 1874 Georgia Supreme Court ruling that upheld a law banning the carrying of weapons into a courthouse employed the first sensitive places analysis. That court stated that access to a court is “just as sacred as the right to carry arms” and armed people at courthouses deny free access to the courts. In other words, safety and court access outweighed the right to carry arms.  Bruen , however, explicitly rejected safety concerns in considering whether New York’s law was valid.

          Using Bruen’s own historical analysis, then, there is little basis for the sensitive places doctrine. Moreover, the doctrine is based on reasoning that the Court rejects. But still the Court seems committed to preserving and perhaps extending “sensitive places.” Why? I, like many others, thought in 2008 that the Supreme Court in Heller would expand gun rights, but I was also confident that the new right would not extend to carrying guns into the Supreme Court building itself. And I am not surprised that Bruen will not allow the carrying of handguns there either. The Court may not weigh your safety or mine when the right to carry is considered, but the Supreme Court justices want to make sure that their own safety outweighs what they claim are Second Amendment rights.

Posted on by rjonakait

Snippets

The friend asked “Why?” when I told him that the spouse wanted to sell our second car. And I thought about how much mysterious excitement would be gone from the marriage if I knew and understood all the spouse’s whys.

“It is diverting to note how often people who offer good advice would benefit if you took it.” Old Saying.

The spouse and I got on the subway in midtown Manhattan on a Friday evening. Many people with suitcases got off while a few remained on the train. We assumed that they must be coming from an airport, but we did not know which one as we had never taken this route from an airport; all we knew was that this particular route could not have been straightforward. One of New York’s major failings is that it does not have efficient public transportation to its airports. A couple in their twenties, with suitcases, sat across from us on the train, and when I asked, they told me that they had arrived at JFK and gotten to a subway station. They said they managed that by following the crowd. From his accent, I correctly guessed that they had come from Ireland. He said that they were in NYC for four days, and according to her, “doing everything” was on her list. This included watching an Irish boxer at Madison Square Garden. The young man said that he was from County Cork, and she was from the “north.” He said that they had met at university in Dublin. When asked, he said that it was Trinity, and when I responded, “Oh, the fancy one,” he almost blushed. He told us that he had studied maths and she, almost inaudibly, said “theoretical physics.” There are many experiences and surprises on the subways. This was the first time I had met a young theoretical physicist.

“It is always a silly thing to give advice, but to give good advice is absolutely fatal.” Oscar Wilde.

I am surprised that somebody has not already perfected this way to become rich: Find a way to make some women’s shoes so they are larger inside than on the outside.

In the wake of the leak of the Supreme Court’s draft abortion opinion, Clarence Thomas said that people must accept outcomes they don’t like. I wonder if he preaches this to his wife about the last election.

Consultants are those who are smart enough to tell you how to run your

organization but too smart to start one of their own.

This is true for me: The only ambition in life a paper napkin has is to get down off a diner’s lap and play on the floor.

When people say that they will do this or that tomorrow, ask them what they did yesterday.

It seems that often when a politician supports “family values,” he means that for other people but not for himself.

“The measure of people’s real character is what they would do if they knew they would never be found out.” Macaulay.

Posted on by rjonakait

To Recuse or Not to Recuse? Let’s Make the Question Easier

Messages from Ginni Thomas to Trump administration officials indicate she believes that the last election was stolen from the former president. This has brought calls that her husband Clarence Thomas recuse himself from any Supreme Court case that might involve that 2020 election.

I leave the merits of whether his recusal is appropriate to others or for another day. Instead, I have been struck by some of the commentary that says that Justice Thomas should refuse to recuse and refers to the well-known opinion (in certain nerd circles) when Antonin Scalia refused to recuse himself.

In that case, Vice-President Dick Cheney was a named party, and an opposing party moved that Scalia recuse himself because Cheney and Scalia for years had gone on a hunting vacation together. Before launching into the twenty pages defending his non-recusal decision, Scalia pointed out that the motion suggested that Scalia “resolve any doubts in favor of recusal.” Scalia responded: “That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”

Of course, Scalia was right that a recusal on a lower court is different from one on the Supreme Court. Throughout the country, we generally have three levels of courts. The lowest is often called a trial court where a legal matter originates. The proceedings are presided over by a single judge, but there are other trial judges in the jurisdiction. If a judge steps aside, another trial judge gets the matter, and the legal matter proceeds in the same fashion as if there had been no recusal.

An intermediate appellate court sitting above the trial courts decides cases with panels of judges—three in the federal Courts of Appeals. These appeals courts, however, retain more than three judges. The panel to decide a case is drawn from the greater number. For example, the federal Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. As Scalia indicated, if a judge assigned to a case is recused, then another appellate court judge steps in and the same sized panel still decides the case.

The Supreme Court is different. Nine justices decide a case and the Supreme Court has only nine justices. If a justice steps aside, the matter will be decided by the remaining justices, or if the justices split evenly, no decision is rendered. (A tie vote means the intermediate appellate court decision stands.) Scalia used the possibility of a four-four split as a justification to stay on the case, and it is now also cited as a reason why Clarence Thomas should not recuse himself.

While lower court judges may be expected to err on the side of recusal and step off a case when there is a reasonable chance that there is a conflict of interest or the perception of a conflict, Scalia’s approach was that a Supreme Court Justice should err on the side of non-recusal. More unfairness may result, and an increased perception of unfairness seems inevitable. The unavailability of a justice to replace a recused justice, however, is remediable, and reforms should be considered.

The Constitution neither defines the number of Supreme Court Justices nor does it define how many Justices should decide a case. It merely says: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed since. That number has seemed sacrosanct after FDR’s failed attempt to expand the Court in 1937.

Nine remains sacred because proposals to change the size seem partisan. Recent suggestions of enlarging the Court came because that body is firmly conservative and because Republican partisan activities insured a firm majority of rightist Justices. However, there are proposals that would lead to more than nine Justices that could make the Court appear, and perhaps be, less partisan. The reforms could lead to better Justices and make the nomination and approval process less partisan.

The core of the proposal is that each president gets to appoint a Supreme Court Justice every two years, say on the July 1 after the presidential term begins. Presidents would make another appointment every two years thereafter. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy if all of them decided each case. Instead, nine Justices would be picked at random from all the Supreme Court judges to hear a matter.

There are obvious advantages to this scheme. First, of course, there would be replacements for recused justices, and there would be no possibility of an equal split among the justices. The decision to recuse can then concentrate solely on conflicts of interests.

Another advantage is that the enlarged Court could take on more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the result in a litigation. This would give more certainty, uniformity, and finality to the law than we have now.

Drawing nine from a broader roster of justices also would have the advantage of dampening lawyerly gamesmanship. Attorneys now try to predict how each of the nine justices might decide a particular issue and seek review only when they assess the Supreme Court lineup as favorable to their position. That gamesmanship was evident with Amy Coney Barrett’s ascension to the Court. Conservative legal organizations now see a solid Supreme Court majority favoring certain kinds of religious claims, Second Amendment expansion, and the limitation or elimination of the right to abortion and are seeking to get Supreme Court review of cases containing such issues before a Court they see as especially favorable to their viewpoints.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more public focus on the issues and less on the judges. That would be a good thing.

(concluded April 8)