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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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Laws Changed by the Few

In a pseudonymous essay written as the American colonies moved towards independence, John Adams wrote that a republic is a “government of laws, not of men.” He was contrasting a system with a despotic emperor who is “bound by no law or limitation but his own will.” In contrast, Adams wrote, a republic “is bound by fixed laws, which the people have a voice in making.”

Following Adams, we often proudly proclaim that the United States is a nation of laws, not of men. The Supreme Court is about to begin a new term. This should remind us that it is only partially true that we are a nation of fixed laws. Instead, our laws change through the actions of a handful of people who sit on the Supreme Court.

We have seen dramatic evidence of that recently, but this is not new. Franklin Roosevelt’s plan to expand the Supreme Court was triggered by the actions of Supreme Court men. (We didn’t believe in women justices in those days.) As Jeff Shesol writes in Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010), between 1933 and 1936, the Court overturned congressional acts at ten times their traditional rate often citing long-neglected doctrines. The Court frequently breathed new life into obscure clauses of the Constitution in order to abolish the democratically enacted laws of the New Deal. Indeed, it was the Chief Justice at the time who made the statement affirming that our fundamental law is a law determined by a few. Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.” Evans could have said something similar about many of our laws.

It is fair to wonder whether the judges use neutral legal doctrines to alter our law or whether it is their politics or economic viewpoints (or what they ate for breakfast as one legal scholar has suggested). A study a few years after John Roberts became Chief Justice found that the Supreme Court under Chief Justice Earl Warren found in favor of businesses 28% of the time. That rate increased to 48% under the Burger Court; 54% under the Rehnquist Court; and 64% under the Roberts Court. (Justice Antonin Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time. William Rehnquist voted 8% of the time for criminal defendants in non-white-collar crimes, but 62% of the time for white-collar defendants.)

Despite the slogan that we are a nation of laws, it is clear that we do not really believe that. Confirmation battles over Supreme Court nominations demonstrate this. We believe that people who constitute the Court can determine the law. (The myth is that ideological contention over Supreme Court nominations began with Robert Bork, forgetting that the earlier nomination of Abe Fortas as Chief Justice was the first Court nomination to be defeated by a filibuster. As I have written, Bork was not “borked,” but myths continue to live on even when false. See AJsdad.blog of September 3, 2018, “Borked! Really?”)

We have tended to focus on the United States Supreme Court when considering how a few individuals determine our law, but increasingly there are battles over state supreme courts as well. Several decades ago “tort reform” became a political issue. The law of torts governs who should pay and how much when someone is injured. With the claim that recoveries for injuries were harming both the economy and healthcare, business, manufacturers, medical institutions, and insurance companies targeted the nominations and elections of state supreme court judges. Money poured into the selection processes. What had been a backwater of our political system now saw contentious advertising and campaigns because the powerful knew that our laws were not immutable.

Today the battles over state supreme court nominees focus on abortion and gerrymandering. Last spring Wisconsin had a costly election for its supreme court. The court was viewed as equally split between conservatives and liberals, and the newly-elected judge was expected to be the deciding vote on abortion and gerrymandering. Pennsylvania has a similar election coming up this fall.

Even though our history shows otherwise, the statement is still often repeated that America is a nation of laws, not of men. Perhaps the powerless have always known that this is a myth. Thus, a character in James McBride’s new novel The Heaven and Earth Grocery Store utters a truism that goes beyond race: “‘White folks’ laws,’ Nate said softly, ‘The minute you leave the room, the next white fella comes along the law is how he says it is. And the next one comes along and the law is how he says it is.’”

The moneyed and the powerful try to shape supreme courts so that the few can alter the law in ways that the rich and powerful want. And these days, they are often successful.

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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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Snippets

Would you be whining about your work if you had an incredibly powerful job, could have it as long you wanted, work full-time nine months of the year, and make enough to put you in the top 2% of earners with the chance to make even more? And yet here is John Roberts, Chief Justice of the Supreme Court, publicly bemoaning that Americans question the legitimacy of his Court. Apparently, he is so unhappy that so many see his work as illegitimate that he is going to resign. Just kidding.

“Blessed is the man who, having nothing to say, abstains from giving wordy evidence of the fact.” George Eliot.

I have listened to the summer sounds. I take my coffee and reading material to the porch as the light is dawning and pause periodically to listen to the bird songs, even though I cannot identify any of the calls. After dinner and dusk, I take a book to the porch and pause in my reading to hear the symphony of the cicadas. During the daylight I hear deer, chipmunks, squirrels, and rabbits rustling the dry leaves in the woodlot next to my reading spot. But, unfortunately, during the day I also hear the summer sounds of lawn mowers, weed whackers, leaf blowers, and backhoes.

It must be a sign of age: I think of my youth as all the time before I was sixty-eight.

A fact that surprised me: The first medal awarded to an American at the 1936 Berlin Olympics was for art. Art competitions were part of the summer games until 1948.

Another fact that surprised me: Iceland has no ants.

A recurring question that mystifies me: Why are Americans so besotted with the un-American institution of the British royalty?

Sometimes when conservatives rail against critical race theory they betray complete ignorance of what it is. Perhaps they oppose it because they think that it is a system for picking horses.

 “In the middle of the twentieth century, any Mississippi schoolchild who achieved an eighth-grade education had been exposed to a state history textbook [Mississippi through Four Centuries] that told of the glories of the Klan. In discussing Reconstruction, it said the Klan whipped and even killed Blacks ‘who had been giving trouble in a community. . . . The organization helped the South at a difficult time.’” Curtis Wilkie, When Evil Lived in Laurel: The “White Knights” and the Murder of Vernon Dahmer. (2021).

Tony Horwitz, in Confederates in the Attic: Dispatches from the Unfinished Civil War (1998), reports that a visitor to a civil war battlefield asked a park ranger why so many Civil War battles were fought on national parks.

The philosopher said, “Half of wisdom is being silent when you have nothing to say.”

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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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Whither School Vouchers?

         The Supreme Court this week held that a Maine school funding scheme violated the Constitution. Maine has some rural school districts that lack a secondary school. The Maine law allowed those districts to sign contracts with nearby public schools for the education of their high school students or to pay tuition for the students at private schools as long as the private schools were not sectarian. (A conservative organization misleadingly characterized the Maine law in this way: “Maine passed a law that banned families from sending their children to religious schools.”)

Chief Justice John G. Roberts, Jr., writing for the majority of six, said that states are not required to support religious education, but if they subsidize any private schools, they may not discriminate against religious ones: “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”

One of the schools at issue in the case, Temple Academy in Waterville, Maine, says it expects its teachers “to integrate biblical principles with their teaching in every subject” and teaches students “to spread the word of Christianity.” The other, Bangor Christian Schools, says it seeks to develop “within each student a Christian worldview and Christian philosophy of life.” In his dissent, Justice Breyer wrote that both schools “have admissions policies that allow them to deny enrollment to students based on gender, gender identity, sexual orientation and religion, and both schools require their teachers to be born-again Christians.”

The decision was not a surprise. Under the Roberts court, claims from religious groups have been upheld at a rate higher than any time in the last seventy years. The Court’s split was also expected with the six conservative justices, all Catholics, in the majority.

The debate is going on as to whether this ruling promotes the constitutional right of the free exercise of religion or is an erosion of the constitutional wall between church and state, as the dissent maintained. (Often lost in the distinction as to whether a claim extends freedom of religion or whether the claim violates separation of church and state is that the anti-establishment clause was placed in the Constitution to promote religious freedom.) But the decision raises other issues that should be discussed.

A wing of conservatism advocates for the broad use of school vouchers. These vouchers are public moneys given to the parents for the education of their schoolchildren. Thus, parents, not the state, decide which school will get the government money. Conservative economists promoted the vouchers in the 1950s as a way to improve education. The claim was that allowing free market principles, under the slogan “school choice,” would work wonders for educational quality. Many of those seeking a religious education today support vouchers.

Because the voucher can be used at any private school including sectarian ones, public money is used for religious purposes. The Supreme Court had earlier made it clear that governments could not directly aid religious schools, but the use of vouchers gives parents control over the state money, and is, thereby, an indirect aid to religious schools. In a 5-4 decision, the Supreme Court in 2002 held that a school voucher did not, therefore, violate the federal Constitution.

The recent Court decision is another step in favor of vouchers. Some conservatives, however, want us to go still further. They would like the end of public schools as we now know them and go to an all-voucher system. If increasing numbers of children are separated into religious silos or segregated by gender identity, sexual orientation or any other sociological grouping, the fracturing of America is exacerbated. Would the benefits of vouchers outweigh this cost to American cohesion? That is something we should be discussing.

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The Judge Ain’t No Umpire

          Americans believe that Supreme Court justices are biased and rule in line with their personal ideologies and preferences. There are many reasons for these conclusions. When justices such as Amy Coney Barrett tell us how unsullied they are, as she did recently, instead of just going about their judicial work, we can’t help but think about Gertrude and doth protesting too much methinks. But the American skepticism has other roots. Consider the present Chief Justice.

          John Roberts in his confirmation hearings described the job in baseball terms: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”

          Roberts has been mocked for this statement, which revealed ignorance or disingenuousness, and since Roberts is smart, the latter is inferred. The Constitution contains numerous phrases that need interpretation, such as “direct taxes,” “the executive power,” “privileges and immunities of citizens,” “the due process of law,” and many others. Deciding cases involving such language is not the same as determining whether a batted ball is fair. Suggesting an equivalency between the umpire and the justice was an attempt to mask the inevitable values and policies that are involved in judging. While umpires do not make up the rules as the game progresses, Supreme Court justices in essence do. Issues are before the Supreme Court because they have not been decided before. If in deciding a case the Court must determine what is interstate commerce or what infringes the free exercise of religion, it is setting down that rule for the first time. It is making up the rules as it goes along.*

          The choices justices make are not inevitable. Legal scholar Sanford Levinson was correct in saying, “There are as many plausible readings of the United States Constitution as there are versions of Hamlet, even though each interpreter, like each director, might genuinely believe that he or she has stumbled onto the one best answer to the conundrums of the texts.” Thus, an interpretation will never be entirely objective. Justice Benjamin Cardozo: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thoughts and actions. Judges cannot escape that current any more than other mortals. Every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.” Justice Louis D. Brandeis made the same point: “I believe that our judges are as honest as you can make them. But like all of the rest of us they are subject to their environment.”

          Judges are not gods. They cannot be purely objective, and like the rest of us, they cannot know everything that influences a decision. Cardozo again: “All their [judges’] lives, forces which they do not recognize and cannot name, have been tugging at them—inherited instincts, traditional beliefs, acquired convictions.” It is arrogance, chutzpah, or naïveté to proclaim objectivity for yourself and others as Barrett did, and the justice who unquestioningly believes in or promotes such objectivity is fooling herself. Justice Oliver Wendell Holmes, Jr., said, “It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seems to him to be first principles are believed by half of his fellow men to be wrong.”

          Justices without awareness of the limitations of their objectivity who do not practice what should be the accompanying humility are dangerous because the justices not only make up the rules, they make up the final ones. As Chief Justice Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.” Or as the more acerbic H.L. Mencken defined: “Judge—A law student who marks his own examination papers.”

          We should be leery—no scared—when a judge pretends his job is no different from being a baseball umpire or when another proclaims, “No judge is deciding a case in order to impose a policy result.” The first is blatantly wrong; the second attempts to obscure the fact that policy choices affect us all, including—gasp—the Supreme Court. If I may borrow a term I heard frequently in law offices, the courts, and the playing fields, “Don’t give me bullshit.” On that we should all agree.

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*         Roberts analogy was also wrong from baseball’s perspective and shows that he does not understand that endeavor either. Every fan knows that the strike zone varies in size and location depending on who is behind home plate. Some umpires have a wide zone and some a high one and so on. Perhaps whether the tennis ball landed within the service box would have been a better comparison for Roberts. Of course, now such calls are often automated and don’t require a human. I am quite confident, however, that no Supreme Court justice believes that he or she should be replaced by a machine.

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ACB Told Us So

          A week ago, Supreme Court Justice Amy Coney Barrett in a speech urged those who are concerned about the Supreme Court to consider more than a case’s outcome. “It’s not just the result that matters. You can disagree with the result passionately. No judge is deciding a case in order to impose a policy result. They are trying to make their best effort to determine what the law requires.” She instructed her audience to the live-streamed event, “Read the opinion,” and asked, “Does [the decision] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?”

          I am one of those who has sleepless nights and troubled naps worrying about the policy decisions made by Barrett and her colleagues. I am hardly alone. A recent poll found that only one in six Americans thinks that the Court is impartial. How could I be so wrong? How could most of you be so wrong? But I can now rest assured. “No judge is deciding a case in order to impose a policy result.” The truth has been delivered. Each and every judge is unbiased. How do I know? Amy Coney Barrett has told me so. Apparently, assertion equals truth.

          It is not surprising that Barrett is especially sensitive to criticisms that her decisions are partisan. She ascended to the Court through blatant partisan maneuverings of Mitch McConnell, and of course, President Trump appointed her because he and others believed that her decisions in certain areas would be predictable. It was expected that she would favor corporations and businesses; aid to religious schools; free exercise of religion claims that would exempt the “religious” from the legal obligations that the rest of us must observe; the limitation or elimination of abortion, contraception, and sexual rights; and the expansion of gun rights.

          The setting of her speech—the Ronald Reagan Library—may have seemed partisan, but the Library over the years has invited all the justices to keynote events. On the other hand, I did not see a non-white face in the audience. That does not mean there was no diversity. Before Barrett spoke, some notables were introduced and that showed that there were white males in attendance from several different boardrooms. Ah, diversity. (These gentlemen are likely to be happy with a current Court trend. Adam Cohen in Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (2020) notes a study that the Warren Court found in favor of businesses 28% of the time; the Burger Court 48% of the time; 54% for the Rehnquist Court; and 64% for the Roberts Court. Cohen also reports that Justice Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time and that Chief Justice Rehnquist voted for defendants in non-white-collar crimes 8% of the times but in white collar crimes 62% of the time.)

          Barrett insists that it is not just the result that matters. Perhaps she is right, but if so, only barely. For most of us, the outcome is what we care about, not how the decision is reached. See post of April 4, 202: Search Results for “Originalism?” – AJ’s Dad (ajsdad.blog). But in trying to reassure us that the results come not from the justice’s personal preferences, Justice Barrett said something troubling. She urged reading the opinion and asked if it reads “like something that was purely results driven.” Purely! I should be sanguine if it is only 80% or 23% results driven? She goes on and asks us if a Justice’s opinion reads as if “designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” If it reads as that honest effort, I should stop my negative thinking.

          Lawyers are results driven. An attorney is supposed to find a compelling legal path to the outcome the client wants. The lawyer is trying to present a persuasive effort that the client’s desired result is what the Constitution, precedent, or statute requires. I would like to think the Supreme Court Justices would at least make adequate attorneys, and it would be shocking if they could not make apparently good arguments to justify their decisions even if they were results driven. (Barrett, however, did not have much of a career as an attorney; it lasted only a couple years.)

          Some people are convinced by mere preaching from on high, but others believe–cliché alert–that actions speak louder than words. Opinions justifying results that fit with the perceived policy choices of the justices are unlikely to convince the majority of us who are skeptical about the neutrality of the justices. If Barrett rules to overturn Roe v. Wade, I among many are likely to think it was a predetermined result that stems from her conservative and religious views no matter what “legal” reasoning she gives for the outcome. What might convince us that precedent and the Constitution drive justices’ votes would be decisions in which justices have gone against the preconceptions we have of them. Interestingly and all too tellingly, Barrett in her speech provided no such evidence of such an event.

          Her word is supposed to be good enough, but what do you think when someone tells you how honest or disinterested they are? A Supreme Court Justice telling me how pure in thought and motive all the justices are brings a similar skeptical reaction. Justices would be better off not making such pronouncements. If they are going to make speeches, perhaps they should just tell anecdotes—I might feel better about the Court if I found out, for example, that two of its members have argued about what has been the best heavy metal band—and not make what is really a policy statement about how divorced the justices are from making policy pronouncements.

          Even so, before condemning a decision as results-oriented, there is merit to her injunction to read the opinion first, advice that would be easier to follow if justices were forbidden from writing their opinions in more than double-digit pages, something, I assure you, will not happen. Nevertheless, reading the opinion is a good idea. So I was surprised when two days—I repeat, two days—after Barrett’s speech, the Supreme Court rendered a five-to-four decision with vigorous dissents. The decision, upon the request of Louisiana, other states, and companies in the gas and oil industry, reinstated a Trump-era rule that limited the ability of states to block projects that could pollute waterways. The decision fit my preconception of how the conservatives would rule on an environmental case, but I was taking Barrett to heart and went to read the opinion before coming to any conclusions. Guess what? There was no opinion. This came out of what is known as the “shadow docket” of the Court. The majority did not give reasons for its ruling. “Read the opinion”?!?

          I don’t know if Amy Coney Barrett has a good sense of humor. But I do know that she can be ironic.

Posted on by rjonakait

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

If the president could nominate a new person to the Supreme Court every two years, 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 from all the Justices, which has many positive benefits, there is another intriguing possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. Judges on reserve would be available whenever one of the regular nine was unavailable for reasons such as illness or was recused by 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 major leaguers and are on the team, too. 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 thirty years and Stephen Breyer for twenty-seven. Chief Justice Roberts and Samuel Alito have been on the Court for sixteen years while the other Justices have been sitting for shorter periods.

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, and a bigger pool of possibilities should lead to better justices.

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 kind of partisan games we have witnessed during which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett would end, maneuvers that strengthened the notion that the Court is not a neutral body. Similarly, the present situation calling for the resignation of a justice as recently happened with Stephen 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 guaranteed Biden any 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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*We have seen that when they control the Senate, Republicans are willing to refuse to consider a Supreme Court nominee put forth by a Democratic president. This tactic could be prevented by requiring that the Senate vote on a Supreme Court nominee within ninety days after the nomination and that failure to act will be automatic approval of the appointment. If the nominee is voted down within ninety days, the Senate shall vote on that new nomination within ninety days and again, no action equals approval. With the third nomination, again the Senate must act within ninety days but then the nominee is approved if forty Senators vote in favor or if forty percent of those voting are in favor. The cries may go that this is not approval within the meaning the Constitution, but that document does not define “approval,” and the Senate has required that nominees survive a filibuster. If the Senate can say that fifty-nine Senators is not enough for approval, why can’t the Senate say that forty is sufficient?

Posted on by rjonakait

Democracy Dies When Elections Don’t Matter (concluded)

Gerrymandering harms democracy by making votes unequal. The North Carolina electorate splits roughly equally between Republicans and Democrats. Thus, the democratic result should be that the fourteen representatives that the state sends to Congress should be equally divided between the parties. North Carolina, however, has been severely gerrymandered, and ten of the representatives have been Republicans. Therefore, half the people elect 70% of the representatives and their votes count more than those of the other half. Of course, gerrymandering has been with us from the inception of the republic, but today, with modern tools of data collection and analyses, rigging districts is easier and more exacting. The partisan goal is to make as many “safe” districts for a party on the electoral map as possible and to undercut the democratic notion that the voting majority should control.

Legal remedies for changing this are weak or nonexistent.  Gerrymandered state legislatures draw lines so that one party will have more state representatives than warranted by the statewide popular vote. To change this, the other party has to get more than a majority that it would need to remove a disfavored governor. Instead, the lesser party must not only retain its majority in the minority of districts where it now wins, but also get majorities in the districts that are stacked against them because of gerrymandering. The disfavored party will in reality need a supermajority of votes to get the governmental reins while the party that gerrymandered can retrain control with a minority of the vote.

The United States confronted a similar situation in the second half of the twentieth century. At that time some states did not require periodic redistricting of their state legislature. With population growths and shifts, legislative districts that once may have held equal populations became different in size, but each was still entitled to the same representation in the state capital. In Tennessee, two-thirds of the state representatives were elected by one-third of the state’s voters. One Alabama district had a population of 634,864 and another had 15,000 and each had one state senator. Within each district, votes were equal, but when the state was looked at as a whole, votes were unequal, and the electoral process was not about to change that. Representatives from small districts did not willingly give up their disproportionate power.

This only changed because the United States Supreme Court stepped in and adopted what now is called the one person, one vote doctrine. The constitutional guarantee of equal protection, the Court recognized, requires that each vote within a state be equal to all the other votes in the state, and therefore legislative districts would have to have comparable populations.

The recent Supreme Court, however, has viewed partisan gerrymandering differently. Rucho v. Common Cause, decided in 2019, said that “partisan gerrymandering” may be “incompatible with democratic principles.” Even so the 5-4 decision, written by Justice Roberts, said that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” If gerrymandering is a political question as the Court stated, you might think that there would be a political process to address any problems, but the Court, for the good reason that there is none, did not suggest one. It is as if the umpires turned their backs and walked off the field saying that while it does not seem right, the home team can call balls and strikes. And, thus, the constitutional rights to equal protection and due process do not govern partisan gerrymandering.

Of course, the goal of gerrymandering is not only to make votes unequal, it also seeks to make elections meaningless. Originally gerrymandering was about individuals. Legislative districts were manipulated to have a particular person elected or defeated, but that changed over time to ensure that the member of a particular party, no matter who the individual candidate was, would win the seat. In a successfully gerrymandered district, the election is not about voter turnout, issues, or even personalities. The outcome is set by the district lines that are drawn before the election. The ballots are a mere formality. I see reports of elections from various autocratic countries where the leader gets a ludicrous percentage of the votes, often just short of 100%. The election, of course, is a sham; it is meaningless, and it means that that country is not a democracy. A gerrymandered district in the United States where the election is meaningless is not part of a democracy either.

Friends discount this by telling me that all sides try to draw district lines to their advantage. That has been true, but we should recognize that partisan gerrymandering of the sort we now have does not have ancient roots. Commentators see it starting in the last two decades of the twentieth century. By 2000, 300 of 435 House seats were safe for one party or the other, but now safe seats have increased. News reports in 2020 said that perhaps only fifty seats were truly contested ones, and after the round of gerrymandering that followed the last census that number may be lower.

Reform seems remote. Gerrymandered state legislatures are unlikely to ungerrymander themselves, which gives the incentive for gerrymandering elsewhere. If a surfeit of Republicans is produced in one state, a Democratic state quite naturally seeks to gerrymander its bailiwick for balance. State courts are the only possibility of reform, but not all, if any, state courts will address the undemocratic process,* and uneven reform may merely yield additional power to the political party that will still be able to gerrymander in other places.**

Finally, there is another potential challenge to our democracy, which could be the most devastating one. Right now, gerrymandering undercuts democracy, but it does not affect the presidential vote or statewide elections such as that for governor. Of course, it matters if voters do not have equal access for these non-gerrymandered elections, but the balloting still matters. However, we now have movements to change the vote counting and certification processes with the suggestions that the new officials will have the power to overturn elections when they don’t like the outcomes. We have the potential that no election will matter in the future.

And then democracy will not just be waning or under attack; it will be dead.***

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*Civics courses have taught that the lower houses of the national and state legislatures are the most democratic and representative of our governmental institutions because the fewest number of voters select these representatives in frequent elections. With gerrymandering, however, these bodies have become unrepresentative of the people. The civics courses have often concluded that the courts are the least democratic of our institutions since they are the most removed from the electorate. But when state supreme court judges are elected in non-gerrymandered statewide election, the state supreme courts may be more democratic than the legislatures.

**Gerrymandering has harmed government also by increasing uncompromising partisanship. In a safe district, a candidate does not have to appeal to the other side or even to the center to get elected. The candidate merely must win the party’s primary. The candidate does not ever have to appeal to the majority of the electorate, but only to the partisans voting in the primary. And when elected, members from gerrymandering district can indulge their partisan ideology without political retribution. We become a more divided country as a result.

***It was funny, and ludicrous, when Pat Paulsen, the comedian a generation or so ago, who “ran” for President, said, “I want to be elected by the people, for the people, and in spite of the people.” We now live in a world where “in spite of the people” is a dominant political strategy.