Posted on by rjonakait

When the President Does It. . . He’s Immune (Concluded)

 Is Presidential Immunity Necessary?

The Court said that a president must have immunity for official acts because prosecutions can intrude on the authority and functions of the executive branch.  Roberts writes:

“The hesitation to execute the duties of his office fearlessly and fairly that might happen when a President is making decisions under a pall of potential prosecution raises unique risks to the effective functioning of government. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, the independence of the Executive Branch may be significantly undermined.”

This rationale is remarkable. Up until this decision, it had been widely assumed that a president could be prosecuted after leaving office. Every president until now, if he thought about it at all, would have assumed that he did not have immunity when an ex-president. Meanwhile, the presidency has been extensively, even exhaustively, studied. Untold volumes of presidential papers have been compiled. Uncounted books and papers about the lives of presidents and their decision making have been published. (More than 16,000 publications about Lincoln alone.) If there have been any instances, much less numerous ones, where a president made a decision based on the possibility of a future prosecution, the Court does not tell us about it. On the other hand, if the threat of prosecution has had a powerful effect on presidents, there should be many historical examples of distorted decision making that resulted.

The Court also voiced its concerns about “routine” prosecutions of former presidents for official acts. Roberts said that the dissents raise fears about “extreme hypotheticals where the president feels empowered to violate federal criminal law. The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. . . . Without immunity such types of prosecutions of ex-Presidents could quickly become routine.”

Of course, this is mere speculation without a historical basis. We have an n of one for such prosecutions. The Court seems to have swallowed the Kool Aid of Trump that his prosecution is fueled by partisanship, and if partisanship controls, we can expect more prosecutions. In any event, the supposed fear that political opponents will prosecute former presidents in the future for partisan reasons has neither history nor logic behind it. As noted above, these are the first prosecutions of a former president in our more than two century existence, even though during that time we have had many fierce, partisan alignments. The immunity advocates may say that the times are now different, but if so, they don’t want to recognize that the times may be different because Trump’s actions have been unprecedented.

There are natural, institutional restraints on the use of criminal charges for normal presidential decisions against former presidents. Most of what a president does—appoint a Secretary of State, prepare a budget, draft a new healthcare bill—is not even arguably criminal and will not lead to any criminal prosecution. Perhaps, however, ordering a drone strike that kills an American citizen claimed to be a terrorist leader in the Mideast or declaring an “emergency” to divert moneys to build a border wall that Congress has refused to fund might be at least arguably criminal. Even if so, successor administrations are highly unlikely to seek indictments for such actions no matter what the partisan climate. Criminal charges against a former president could mean that his successor has restricted his own freedom of action. Someday he may want to do something similar to what a predecessor did, but if he labeled it criminal through a prosecution, he wouldn’t be able to. Sitting presidents almost never want to limit their power. Indicting and trying predecessors for truly presidential acts has not happened and will not happen. The scare tactics about routine prosecutions, not supported by history or logic, are straw dogs.

Can Immunized Official Acts Be Used As Evidence?

The Supreme Court went beyond the creation of immunity for Trump. Roberts stated that the Government (i.e., the DOJ) had inappropriately proposed the use of immunized official acts as evidence in an allowed trial. Here’s an example of what that might mean: Assume that it is determined that Trump’s role in seeking to assemble fake electors is a private action, and he can be prosecuted. He might argue that he was only seeking to ensure election integrity, and anything that might look criminal arose out of good intentions and was not a crime. That contention would be undermined by evidence that he sought to have the Justice Department launch sham investigations into the election. Similar kinds of evidence seeking to show a corrupt intention are used regularly in trials. But the Supreme Court said it can’t be used in the prosecution of an ex-president, stating that using official acts to help prove issues in a prosecution for a private act “threatens to eviscerate the immunity we have recognized.”

They held further that the use of such evidence might distort presidential decision making. This assumption was unsupported. Moreover, it’s highly unlikely. The Court apparently believes that a president, while doing an official act for which he will get immunity, might consider that his action might be used in evidence in a criminal prosecution for a non-immunized act that he is not then doing and that he might never do. Follow that? Neither do I. Who thinks along such convoluted lines? Meanwhile, it is hard to see how presidential choices about corporate taxes, Chinese tariffs, the Affordable Care Act, and the like would ever have evidentiary value in a prosecution that may or may not happen for a private act. Come to think of it, would it be a bad thing if a president thought twice about seeking sham investigations into voter fraud?

The Court also said the evidentiary restriction is necessary because otherwise there will be “a unique risk that the jurors’ deliberations will be prejudiced by their views of the policies and the performance of the president.” Furthermore, “the ordinary trial tools may protect ordinary criminal defendants, but the immunity seeks to protect not the president himself but the institution of the presidency.” Not surprisingly, there are no citations in support of these propositions. Moreover, they ignore an obvious logical flaw. The Court can hide presidential behavior by not allowing evidence of it, but it can’t hide that a previous president is being tried. If the jurors are prejudiced by their views of his polices and performance, they will be prejudiced with or without the evidentiary restriction. Of course, normally this is handled during jury selection and by normal evidence rules as well as judicial admonitions about what evidence to consider and how it is to be used. Unless the Court is going to create more unknown trial procedures, the fact that an ex-president is on trial can’t be kept from the jury. If opinions about an ex-president are prejudicial, the prejudice will be there with or without the evidentiary restriction. However, that restriction will deny the jury important evidence making such a trial less fair.

Did It Matter that Justices Alito and Thomas Did Not Recuse Themselves?

Cries went out that Justices Thomas and Alito should recuse themselves because their wives’ activities produced conflicts of interest. The two, of course, still joined the majority. At first glance, this did not seem to matter since the Court split six to three along ideological and political lines. If Justices Thomas and Alito had not sat, the split would have been four to three with the same result. But that overlooks some important points.

Justice Amy Coney Barrett wrote a concurring opinion that largely agreed with Roberts’s opinion. However, she withheld complete agreement by writing that the attempt to organize alternative electors was a private act, and she saw no plausible argument for barring a prosecution for this conduct. If Thomas and Alito had not sat, there would have been only three votes for remanding for a trial court determination of whether this conduct received immunity. Instead, the Court would have held that that the prosecution could proceed on these grounds.

In addition, she also concluded that the evidentiary restriction created by the Court was wrong. The three dissenting judges also came to the conclusion. The four would have been the majority on this issue if Thomas and Alito had been recused. In short, their failure to recuse mattered. 

Who Benefits Most from the Decision?

Trump v. United States (seldom has there been a better name for a Supreme Court case—Trump against the United States) was a major victory for the former president. Because of these rulings and remands back to the lower court, no trial will be held for quite some time, if ever.  The normal rule is that appeals are held only after all the trial court proceedings have been completed. The Court held, however, that interlocutory appeals can be taken on the immunity issues. That means whenever the trial court decides about immunity — which will take time to allow for briefing, arguments, consideration, and decision making — an appeal on these issues can be taken immediately, and the trial held in abeyance. Then there will be more briefing, arguments, consideration, and decision making in the Court of Appeals. And then there will be an attempt to take the appeal to the Supreme Court. Don’t hold your breath waiting for a trial’s outcome. If Trump is tried, it may not be for years, and by then the case will be in a bastardized form and far from what the prosecution has alleged.

According to some the decision is also a major victory for the institution of the president, but it is also a limitation on the presidency. The Court has taken away part of what it says is a quintessential executive power—the authority to investigate and prosecute crimes. In giving immunity to a former president, the Court has limited the power of the sitting president to investigate and prosecute. The Court, without any apparent consideration of it, has removed from all presidents the quintessential power of determining whether the prosecution of a former president is in the national interest.

The Court, by leaving many issues open with little or clouded guidance, has arrogated power to the judiciary. What is a “core” official act? Is the immunity for a non-core act absolute or presumptive? If it is presumptive, how, if at all, can the presumption be overcome? What is the line between a private act by a president and an official one? We have no evidence that past presidents ever made decisions concerned about a future prosecution, but after this decision a president may be emboldened to push the boundary on criminal actions because of the newly created immunity. However, because of the many open questions, a president may not be sure about his freedom from prosecution. By Roberts’s analysis they still can’t in all circumstances “boldly and fearlessly” carry out their duties. They must wait until the courts decide these open issues. The decision gave the president extraordinary authority; it also gave the courts potent powers.

Of course, the immunity created for Trump should apply to other presidents. Would you advise Biden to use this new opportunity? For example, Biden could order the FBI or intelligence agencies to surveil Trump and all his advisers or to disrupt communications among them. Or perhaps surveil Justice Thomas to see if, despite disclaimers, he and his wife do talk politics. Biden would be giving such orders to members of the executive branch, and his actions would now have absolute immunity.

Conclusion

Almost fifty years ago, David Frost asked then ex-President Nixon whether the president could do something illegal in certain situations such as against antiwar groups and others if he decides “it’s in the best interests of the country or something.” Nixon famously replied, “Well, when the president does it, that means that it is not illegal.” Nixon was mocked for his answer. The present Supreme Court did not say that all official presidential acts were automatically legal; they said only(?) that the president had immunity for them. But is something criminal if the perpetrator can never by prosecuted for it? The mockery of Nixon should end. And of course, there is now the question of whether Nixon should have had immunity for Watergate. Nixon’s role was to talk with his advisers in the executive branch that set off the chain of events that led to Watergate. Would those conversations now have to be considered core presidential actions for which he had absolute immunity?

Welcome to the new world where, according to the Supreme Court, presidents for the first time, can make decisions boldly and fearlessly because they have immunity from criminal prosecution. Meanwhile, many of us see a new world where presidents are above the law and can commit crimes without accountability.

Posted on by rjonakait

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

I don’t understand all the outrage about the flag at Supreme Court Justice Samuel Alito’s house. If the flag had not flown, would you have thought that Alito’s rulings are any less partisan?

Oscar Levant to George Gershwin: “Tell me, George, if you had it to do all over, would you fall in love with yourself again?”

When we have visited a continuing care retirement community or a life plan estate or what I refer to as a place to die, a person showing us around always points out at least one library to us. However, on our last two visits, our marketing person referred to them as “libaries.” Should that affect our decision about whether we want to move there?

“Her brain is a cage of canaries.” Virginia Woolf referring to a Russian ballerina.

We had dinner with a couple who lived in a place to die. They were charming. One had been a hairdresser who was an expert in sign language for the deaf. She signed for Red Skelton shows at Atlantic City. She told us that the comedian had a following among the deaf because he did much pantomime and included a sign language “translator” for his stage shows. I found this interesting, but I also found it unsettling that our dinner companion referred to the performer as Red Skeleton.

Conservatives say that if Trump is elected, Democrats should be criminally prosecuted. I agree. If a Democrat falsifies records about hush money payments to an adult film actress to affect an election, those Democrats should be prosecuted.

“The nail that sticks up will be hammered down. Japanese Proverb.” Nami Hirahara, Snakeskin Shamisen: A Mas Arai Mystery.

A friend whom I am sure thought he knew the answer asked if anyone besides Trump had been prosecuted for falsifying business records as a felony. I did a little internet search. I quickly found one site that reported, “New York state has arraigned almost 9,800 cases involving the same charge since 2015.” Another site stated that Manhattan District Attorney Alvin Bragg had filed 120 cases of falsified business records in the several years before Trump was indicted, all of them felonies based on the concealment or commission of other crimes. A third site concluded, “Prosecution of falsifying business records in the first degree is commonplace and has been used by New York district attorneys’ offices to hold to account a breadth of criminal behavior from the more petty to simple to the more serious and highly organized. We reach this conclusion after surveying the past decade and a half of criminal cases across all the New York district attorneys’ offices.”

Stephen Colbert in his role as a right-wing blowhard said, “I don’t believe in the facts. The facts are liberal.”

I did an internet search for how to pronounce Swiatek. I still don’t know how.

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

I learned it when I became a professional baseball umpire. As a high school student, I umpired games of younger kids, and I was paid. As a sports fan, I already knew that umpires could draw criticism. And, of course, although infrequently — because I assure you I was good at the job — or perhaps because times were different and people were more civilized, or perhaps because few adults attended the daytime games, a call of mine was questioned.

When I took the job, I knew that I would have to tolerate criticism, for criticism came with the job.

A decade later I was a public defender. Representing someone charged with a crime was done in a public courtroom. Few people besides relatives and friends of those involved in the trial attended, but they were supplemented by courtroom regulars, usually retired people who went from courtroom to courtroom hoping to be entertained by the plight of others. They were a talkative and opinionated lot. If I stepped into the corridor during a break in the proceeding, someone would invariably tell me how I was doing — especially if they thought that I — or they, if they had been in my shoes — could do better. (I always listened. Perhaps I might learn something.) I was acting in a public arena. I could expect criticism. Criticism came with the job.

The judges, too, were in an open forum and, of course, had to expect that their performances would draw disagreements. Most such criticisms were grumblings from attorneys or spectators and did not reach a wider audience. However, if an atrocious crime had been committed by someone released on bail for other charges, the news media would report the identity, often with outrage, of the bail-setting judge. Some judges dreaded such publicity. Of course, if a defendant was not released on bail, the feared press notice would never come. Even though the only ground for setting bail in New York was to assure a defendant’s presence in court, these timid judges often set bail higher than was required to meet that purpose.

Judges, I also learned, could be touchy about criticism when it suggested that they had misinterpreted or misapplied the law. I was once assigned to do an appeal of a murder conviction. The trial transcript revealed what I thought was an egregiously wrong ruling by the trial judge. The appellate court unanimously agreed with me had ordered a new trial.

I had never appeared before the trial judge when I argued that appeal. I had never even met her, but a few months after the appellate court’s decision, I had occasion to appear before her on a minor matter. I was expecting to have to introduce myself when my case was called, but as soon as I entered the courtroom, she interrupted what she was doing, pointed at me, and nearly spat out, “You are the person who got me reversed.” I said nothing but privately reflected on the fact that she blamed me, never considering the possibility that the conviction was overturned because of her own blameworthy actions. It was my fault, even though I was under a legal and ethical duty to argue the appeal. That a person might be serving a life sentence after an unfair trial did not seem to phase her. (When the defendant was subsequently re-tried, he was acquitted.)

Defensiveness, not reconsideration. That is often the response to criticism, even from judges to whom we look for rationality and justice. And that brings us to Samuel Alito.

Justices of the Supreme Court, like Alito, should feel as little threatened by criticism as any group in our country. They keep their jobs and pay as long as they want no matter what the criticism. They hold their positions for life. (They can be removed through the impeachment process. However, no Supreme Court justice has been removed that way.)

Their decisions are unchallengeable. They face no criticism from a higher court because no higher court exists. Decisions of the Supreme Court cannot be reversed in our legal process.

Yes, 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, but such congressional action has been so rare as to be almost nonexistent. Furthermore, federal legislation cannot overturn a constitutional ruling of the Court.

You may have been taught, however, that the amendment process acts as a check on the Court’s constitutional decisions. Horsefeathers! Tell me when an amendment has changed a Court ruling. You might point to the Fourteenth Amendment, which states that all persons born in the country and subject to our jurisdiction are citizens of the United States. You might suggest that this overruled the infamous Dred Scott decision, which gratuitously pronounced that Blacks could never be citizens. However, the Fourteenth Amendment came in the wake of the Civil War and was not adopted by the usual amendment process. The southern states were effectively coerced into ratifying it.

Your trivia question: Name the one normally adopted amendment that effectively overruled a Supreme Court decision. You win the lollipop if you said the Sixteenth Amendment, which authorized an income tax. We don’t need to go through the history of that provision, but that amendment in essence overrules the Court’s nineteenth century ruling that an income tax was unconstitutional. That’s it. It is the one time the amendment process acted as a check on the Court’s many constitutional holdings. From a practical perspective the amendment process has not been an effective check on the Supreme Court.

In reality, a Supreme Court ruling only gets changed when another Supreme Court overrules or modifies a previous decision. The only check on justices are other justices. We say we are a government of checks and balances, but for practical purposes there are none on the Supreme Court.

(concluded July 3)

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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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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?

———————————————————————————

*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?

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Partisan Hacks, Comprised of

Before the ink was dry on her nomination to the Supreme Court, right-wing news articles and fundraising emails attacked Ketanji Brown Jackson. One said that she had “taken radical, liberal positions throughout her career” without giving even a hint as to what those positions were. A different writer labeled her “a politician in robes.”

The writings did not contain a glimpse of irony or even the slightest acknowledgement that only recently conservative Supreme Court Justices have themselves been criticized as partisans. This criticism came as a result of issuing opinions with scanty or no reasoning that followed their own political predilections and that of their patrons; allowing unconstitutional laws to be enforced; and bending judicial norms to hear cases that have political overtones.

The conservative justices had to know that their actions would look political and produce vehement criticisms, but you might expect them to simply ignore the critics. When I was a baseball umpire, I expected disagreement with some of my calls. I knew that I should not umpire if I could not handle criticism. If you take a judgeship, you should not be surprised by criticism. And if anyone should feel secure from critics, it would be an insular band of people who have both power and life tenure.

However, the comments about the Court made some justices feel like paper flowers in the rain.* Ignoring the fact that defensiveness often gives greater credence to the critics, several justices made replies. The most quotable “defense” came from Amy Coney Barrett who announced that the Supreme Court “is not comprised of partisan hacks.” Of course, it would have been even more newsworthy if Barrett had said that the Court was filled with partisan hacks, but, nevertheless, the whine indicated how touchy some members of the Supreme Court are.

Now, if you are looking for self-conscious irony, don’t go to the conservatives on the Supreme Court. Whether or not she is a partisan, she is sitting on the Court because of naked partisan power, and she made her statement in a place that honors a person no one would ever sanely label as nonpartisan, Mitch McConnell. And yes, if she has an ounce of gratitude, she should be indebted to him for his partisanship.

If Barrett, for unfathomable reasons, thought her ex cathedra-like statement would end discussion of the topic, she was undercut by her colleague Justice Samuel Alito. A month or so after Barrett announced the absence of judicial partisanship, Alito made a speech to the Federalist Society, a group not widely known for its even-handed policies. Many sources concluded that this speech was so highly partisan that it should have raised ethical concerns for a judge. However, Supreme Court justices are not bound by the ethical standards set for other judges—disturbing yet true.  So, on the one hand, we have Barrett’s assertion, not supported by any evidence or reasoning, about the lack of partisanship on the Court, and then we have the stark evidence of a partisan speech by a Justice. Chicolini’s classic comeback in Duck Soup comes to mind: “Well, who ya gonna believe, me or your own eyes?”

But maybe, I thought, I was being unfair to Barrett. Perhaps her statement was more limited than I had first believed. Reports say that she is smart and a meticulous judge. She, no doubt, tries to use words precisely. She asserted that the Court “is not comprised of partisan hacks.” I went to H.W. Fowler’s classic A Dictionary of Modern English Usage. In it he discusses the difference between include and comprise: “[T]he distinction seems to be that comprise is appropriate when what is in question is the content of the whole, and include when it is the admission or presence of an item. With include, there is no presumption that all or even most of the components are mentioned; with comprise, the whole of them are understood to be in the list.” With her use of comprise, then, Barrett was only telling me that not all the Supreme Court Justices were partisan hacks. However, she might be signaling–with lawyerly precision–that it includes some. Or perhaps she is conveying that some justices are partisan but not hacks or hacks but not partisan? Alito comes to mind again. Many commentators, citing several examples, say that Alito is a partisan. They almost never label him a hack; instead, they almost always refer to how smart he is.

Of course, I may be giving Barrett too much credit for using words precisely. After all, she did use the phrase comprised of, a definite grammatical no-no. The prickly Fowler believes that the English language might be better off with the banishment of comprise: “This lamentably common use of comprise as a synonym of compose or constitute is a wanton and indefensible weakening of our vocabulary.” Perhaps when it comes to words, Barrett is not a conservative standard bearer. Even if that might be laudable, comprised of is not to be praised, at least according to Benjamin Dreyer who writes about comprise in the immodestly titled Dreyer’s English: “I confess: I can barely remember which is the right way to use this word.” He says that he looks it up each time he is tempted to use it. Dreyer tells us that it is correct to say, “The English alphabet comprises twenty-six letters.” And this, too, is right: “Twenty-six letters compose the English alphabet.” But it is wrong to write, “The English alphabet is comprised of twenty-six letters.” Dreyer writes, “As soon as you’re about to attach ‘of’ to the word ‘comprise,’ raise your hands to the sky and edit yourself.”

Of course, you might tell me to lighten up. Don’t parse her words so closely. C’mon; you get the gist of her meaning. Don’t take her so literally. It’s not a big deal if she was imprecise. But, my friends, she is a Supreme Court justice, and when she writes an opinion, no matter how loose its reasoning, no matter how imprecise it may be, it will have important consequences. Barrett may be making decisions that control us for the next thirty or forty years. And precision should matter for a Justice. As Fred R. Shapiro writes in The Oxford Dictionary of American Legal Quotations, “Law is the intersection of language and power.”

I wonder if Barrett will continue to suggest how nonpartisan the Court is if Ketanji Brown Jackson ascends the Court. Conservatives of all stripes are accusing her (Jackson) of being partisan. What kind of hypocrisy is this? Well, we can rest in the assurance from Barrett that she, at least in her own opinion, is not a political hack. Or can we?

*“Only paper flowers are afraid of the rain.” Konstantin Dankevich.