Author: Henry Wray

Critics displeased with the Supreme Court’s decisions claim that the Court is in “crisis” and propose various “reforms” to fix it. However, the real crisis the Court faces is not of its making but the work of the political branches, which have undermined it by turning the appointment process for Justices into a hyper-partisan farce. The remedy is not in the so-called reforms advocated by the Court’s detractors, most of which would exacerbate the damage already done to the Court. A better, much-needed reform is to reinstate the bipartisan principles that governed judicial appointments for decades.

The Supreme Court has been in the political crosshairs since its conservative wing became ascendant, leading to a rash of proposals to “reform” it. Early in his term, President Biden established a commission to study these proposals. His commission produced a lengthy report that analyzed them but offered no conclusions or recommendations.

Since then, controversy over the Court and pressure from its critics have intensified. Shortly before dropping his reelection bid, President Biden backed several proposals, including constitutional amendments to nullify the Court’s decision on presidential criminal immunity and to subject the Justices to term limits.

Senate Democrats, along with critics of the Court in academia and the media, have gone further. If Democrats win control of the presidency and both houses of Congress this year, the Supreme Court will remain a prime target. Senate Democratic Leader Chuck Schumer vowed that going after the Court will be “a very big priority” in the next Congress.

Reform proposals range from outrageous ideas that would threaten the Court’s independence and integrity to a couple that have at least superficial appeal. While ostensibly aimed at saving the Court from itself, all are advanced by its detractors on the left who ultimately seek to shift the Court’s ideological balance back to the liberal side that was dominant for so long.

The detractors insist that the Court faces “crises” in legitimacy, ethics, and public confidence. These are red herrings. Concerns over the Court’s “legitimacy” are based mainly on often overwrought disagreement with its decisions. A prominent law school dean describes the Justices as “political hacks.” Law professors claim to be unable to teach the Court’s decisions as valid law. Senator Schumer once threatened several Justices by name. The supposed ethics crisis is largely a media construct. The alleged crisis in public confidence is driven primarily by Democratic opinion.^[1]See here and here.

This post explores the main reform proposals offered so far. It concludes by offering an alternative reform to address the one genuine crisis the Court faces: the shameful efforts by both parties over recent decades to politicize it by destroying the bipartisanship that once characterized judicial appointments.      

Legislatively “overruling” Constitution-based Supreme Court decisions

The most outlandish reform proposal, embodied in a bill introduced by Senator Schumer with the support of a majority of Senate Democrats, would overrule by statute the Supreme Court’s decision that the Constitution grants presidents broad immunity from criminal prosecution. While this decision may well be wrong, the notion that Congress can exercise appellate jurisdiction over the Court is absurd. The bill is so obviously unconstitutional that if it was somehow enacted into law no court would uphold it. Even President Biden recognized that overturning the decision requires a constitutional amendment.  While this proposal may be nothing more than political grandstanding, it shows how far critics will go in attacking the Court.^[2]See here for more on this proposal.

Adding Justices to the Court (aka “court-packing”)

This proposal constitutes another outrageous attack on the Court’s independence and integrity. It would reduce the Court to a mere extension of the political branches.^[3]See here for background. Unlike the first proposal, however, it poses a very real threat since Congress actually has the power to enlarge the Court. 

Court-packing has a sordid history going back to the infamous FDR scheme of the 1930’s that was soundly rejected. While most Americans still oppose this awful idea, it’s gaining traction among Democrats.^[4]See here and here. One prominent Democratic senator, Ron Wyden, has already introduced a court-packing bill.  Vice President Harris ducked a question on whether she would support court-packing, but said there should be “some kind of reform” of the Court. 

Term limits for the Justices

Unlike court-packing, term limits enjoy broad public support although Democrats are more supportive than Republicans and independents. This proposal has some appeal as a conceptual matter. Life tenure for public officials is very rare, and in the United States almost unique to federal judges.^[5]Most state judges are subject either to term limits or a mandatory retirement age. On the other hand, the Nation has survived over 200 years of life-tenured federal judges without significant problems. And if life tenure is now problematic shouldn’t term limits be imposed on lower court federal judges as well as the Justices?

The real motivation here, however, is not concern over life tenure per se but the need to somehow address the partisan hash that the political branches have made of Supreme Court appointments. Term limits proponents seem to accept that the appointment and confirmation process has become irreversibly politicized and believe the solution is to give future presidents equal opportunity to make it even more so by tying appointments to presidential election cycles and results.

The leading proposal is for Justices to have 18-year terms staggered in a way that allows each president to appoint two Justices per presidential term. This would take years to become fully effective and might never achieve its goal. For example, there is no way to force the Senate to confirm nominations within the proposed cycle (or at all, for that matter). Term limit schemes pose many other implementation challenges as described in the Biden commission report.     

The most obvious challenge facing any legislative term limits proposal is its constitutionality. While Court critics maintain that Congress could enact some sort of de facto or functional term limits by legislation, the predominant view is that a constitutional amendment would be required.^[6]See here for background. Legislatively imposed term limits would be particularly constitutionally suspect if Congress attempted to apply them to the sitting Justices.       

A binding, enforceable Supreme Court ethics code

This proposal also has wide public support. After all, who would oppose the notion that the Justices should act ethically? However, the asserted rationale that the Court faces an “ethics crisis” is  hyperbole, and in any event, the few arguably valid concerns in this area have been addressed.

Allegations of ethics abuses center on just two of the nine Justices–unsurprisingly, the two most conservative, Alito and Thomas–and they have little substance. Apart from issues relating to financial disclosure reporting, the ethics “scandals” either fall into the nebulous and largely subjective area of appearances^[7]See here. or constitute outright media concoctions.^[8]See here and here.  

Regarding financial disclosure, the Justices are subject to the same reporting requirements under the Ethics in Government Act as lower court judges and most other federal officials. The Act carries civil and criminal penalties for willful failure to report or false reporting.^[9]See here for background. There is no evidence that any reporting omissions by the Justices were willful. In fact, some arguable omissions resulted from ambiguities in the reporting criteria that have since been clarified.

Regarding potential conflicts of interest, the Court responded to its critics by adopting an ethics code of its own in November 2023 notwithstanding the lack of evidence of abuses. The Court’s ethics code generally follows the ethics rules applicable to other federal judges.^[10]See here for an analysis of both. However, the critics complain that the new ethics code lacks enforcement mechanisms.

The key focus here is on recusal. Justices, like lower court judges, are required by law to recuse themselves from cases if certain specific conflicts exist or, more generally, whenever their “impartiality might reasonably be questioned.” However, recusal carries unique consequences for a Justice. While lower court judges who recuse can be replaced, there is no substituting for a recused Justice. Since recusal of a Justice leaves only eight votes to decide a case and can have a major impact on its outcome, the bar for recusal must be high. Unlike lower court judges, a Justice cannot simply err on the side of recusal. The Court’s ethics code recognizes this, stating that a Justice “is presumed impartial and has a duty to sit unless disqualified.”

Recusal decisions now rest at the discretion of each Justice, but the Court’s critics want some way to force recusal. This could create a form of reverse court-packing: instead of adding ideologically friendlier Justices, attempt to subtract those deemed hostile. However, any initiative to impose a recusal process on the Court would raise serious constitutional issues. Under separation of powers principles, it’s doubtful that Congress can dictate how the Court handles recusals any more than the Court can regulate internal congressional procedures.^[11]One modest step the Court itself could take for more transparency is to require Justices to provide explanations when they reject recusal motions, as they have sometimes voluntarily done.      

In contrast to the foregoing, there is one reform that could actually benefit the Court

The “reforms” discussed above, and similar ones advocated by the Court’s detractors,^[12]The Biden commission report describes several other ideas to restructure the Court or alter its processes. The Wyden court-packing bill includes several more as well. are solutions in search of a problem. None would clearly improve the Court and most would do it great harm. With the (frightening) exception of court-packing, they also are mainly dependent on constitutional amendment and thus highly unlikely to be implemented. 

There is, however, a constructive reform that would go a long way toward depoliticizing the Court: Restore the merit principles and 60-vote threshold for Senate confirmation that were for many years the norm for Supreme Court (and other judicial) appointments.

Until recent decades, both political parties accorded presidents considerable deference regarding their nominees to the Court as long as the nominee was well qualified substantively, ethically and temperamentally fit, and within the mainstream of legal thought. Additionally, the 60-vote threshold for confirmation ensured some bipartisan support. These principles usually (though not always)^[13]See Bork and Thomas. resulted in relatively noncontroversial confirmations of ideologically diverse nominees. For example, both Ruth Bader Ginsburg and Antonin Scalia were confirmed by overwhelming majorities.      

The political parties share equal blame for the erosion of these principles over the years to the point that Supreme Court appointments and confirmations have been reduced to a wholly partisan farce.^[14]See here, here, and here. Reinstating them should be embraced by anyone of any ideological or political persuasion who genuinely has the Court’s best interests at heart.

This reform is straightforward and could readily be achieved without legislation or constitutional amendment. All it needs is for our elected leaders to muster the courage and integrity to put the public interest over knee-jerk politics. Unfortunately, that may be too great an ask in these polarized, hyper-partisan times.

Many on the left brand the current Supreme Court an ideologically and even politically extreme “rogue” institution whose six-member conservative majority rides roughshod over the liberal minority and consistently produces decisions that are fundamentally at odds with the views of most Americans. All this is said to be reflected in the Court’s declining stature in the eyes of the public.

These characterizations don’t withstand objective analysis. In recent years, university researchers have selected “major” cases pending before the Court, as identified by media outlets and Court observers, and surveyed public opinion on the issues they present. Since the surveys are conducted before many cases are decided, the Court’s eventual decisions do not always track the issues polled.^[1]For example, the Court decides some cases on procedural grounds such as lack of standing without reaching the substantive issues, or it may recast the substantive issues in its decisions. But in most cases they do, and comparing the survey results with the Court’s decisions is quite revealing.

The results in past years^[2]See here and here. demonstrate that the Court is far from a conservative monolith and that more often than not its decisions align with majority public opinion. Indeed, the Court is more in tune with the public than its leftist critics. Also, the conservative justices vote in lock step less frequently than their liberal colleagues.  

This year’s survey results show the same things. The researchers surveyed public opinion on 16 selected major cases before the Supreme Court in its 2023-2024 term completed this June. In four of the cases, the Court’s ultimate decisions did not align with the issues polled.^[3]The Court did not reach the polled issue in three cases for procedural reasons. In the fourth case, Fischer v. United States, the issue polled—whether or not the events at the January 6 attack on … Continue reading That left twelve cases for comparison. The Court’s decisions were consistent with majority public opinion in eight of the twelve. Polling respondents who identified as Republican agreed with the Court 9-3; those who identified as Independent/Other agreed 8-4; and Democratic respondents split 6-6.   

Data for all 16 decisions selected for this term again refute the notion that the justices inevitably fall into one of two polarized camps. Six of the 16 cases were decided unanimously. Only half of the ten split decisions featured all the conservatives on one side and the liberals on the other.^[4]While the clean conservative-liberal split in half these non-unanimous cases may still seem high, the selected cases are by design particularly noteworthy and controversial. For all 62 cases decided … Continue reading The conservative justices differed among themselves in the other split cases. Liberal Justices Sotomayor and Kagan voted alike in all 16 cases; Justice Jackson differed from her liberal colleagues in only two cases. On the conservative side, only two justices, Roberts and Kavanaugh, voted together in all 16 cases.^[5]Statistics for the entire 2023-2024 term reenforce these voting patterns. Of the 62 cases in all, 25 resulted in unanimous decisions. The alignment of justices in the 37 non-unanimous decisions does … Continue reading

Given the foregoing statistics, why has public confidence in the Supreme Court declined? There probably are several reasons. For one thing, recent years have witnessed declining public confidence in almost all American institutions. The Court is not exempt from this; indeed the relentless (and unwarranted) attacks on its “legitimacy” and the integrity of individual justices surely have some impact. Also, a few recent very highly publicized decisions did go against the great weight of public opinion.^[6]One example from the cases selected this year is Trump v. United States, which held that presidents have broad immunity from criminal prosecution for their official acts. Another is the 2022 Dobbs … Continue reading But the main factor is the ever-increasing polarization of the public.   

The Court’s favorability ratings clearly reflect sharp partisan divides. According to the Pew Research Center, the Court’s overall rating is 47 to 51 percent unfavorable. However, 73 percent of Republican and Republican-leaning respondents rated the Court favorably while only 24 percent of Democratic and Democratic-leaning respondents did.  Gallup polling has similar findings with Republican respondents highly favorable (62%), Democrats highly unfavorable (17%), and independents in between (41%).

One of this year’s featured cases illustrates these divisions. In Trump v. Anderson, the Supreme Court unanimously overturned a state court decision finding Donald Trump ineligible to run for president by virtue of the Fourteenth Amendment’s ban on insurrectionists holding public office. Republicans overwhelmingly agreed with the Court (93 to 7%), Democrats overwhelmingly disagreed (84 to 16%), and independents agreed 54 to 46%.

Of course, the Supreme Court is not supposed to be a political body that decides cases based on public opinion. At the same time, there would be cause for concern if its decisions were persistently at odds with the views of most Americans. Fortunately, objective data demonstrate that this is not the case.

Notwithstanding the data, attacks on the Court are likely to continue based in part on the false narrative that it is hopelessly out of touch with the public. In assessing these attacks, it’s worth keeping in mind that the Court’s public standing still far exceeds that of its critics in the media (14 to 18% favorable) and Congress (8% favorable).  

 

Tuesday night’s “debate” between Donald Trump and Kamala Harris was a largely non-substantive event in the (thus far) largely non-substantive 2024 presidential election campaign. Nevertheless, it produced striking and important contrasts between the two candidates.

Trump is an all too familiar figure who has repeatedly demonstrated his unfitness for office. His first term was shambolic. In the wake of his 2020 election defeat, he engaged in conduct that was clearly impeachable and probably criminal. He is a con man, but not a very good one since he lacks the self-discipline even to fake normalcy. His campaign consists mainly of egocentric hyperbole, demagoguery, insults, and lies.

By contrast, Harris is essentially a stealth candidate. She was handed the Democratic nomination by default after President Biden was forced off the ticket. While lightly regarded–indeed rated by New York Times pundits as the weakest potential candidate–she was the only practical option at that late date. Since then, she has undergone a remarkable makeover courtesy of her party, which quickly closed ranks behind her, and supportive media. So far, Harris is mounting a surprisingly effective campaign built primarily on “good vibes.” Although the incumbent vice president, she is running as the change candidate. She has disavowed many of her previous policy positions but seems in no hurry to explain why or to stake out new ones.

The debate was hardly enlightening concerning where either candidate stands on the issues. Trump mostly ignored the debate moderators’ questions and spouted his usual nonsense. (He did the same in his debate with President Biden but drew less attention given the singular focus on Biden’s performance.) Harris sidestepped questions about her policy positions and why they had changed so dramatically, and she was not pressed very hard by the moderators to reveal more.  

With both candidates devoting far more time to attacking each other than to any policy subject, the debate provided few insights regarding how either of them would address the many serious challenges facing the nation. However, it was telling in terms of demeanor and temperament. From this perspective, the broad consensus across the political spectrum is that Harris was the clear “winner.” While she seemed overly scripted and robotic at times, she generally came across as self-controlled, coherent, and the far more “presidential” of the two. Trump was an angry hot mess who lost whatever discipline and composure he started with after about half an hour.

Observers of all political stripes marveled at how Harris was able repeatedly to throw Trump off balance and goad him into incoherence and unhinged rants (e.g., pet-eating migrants) by playing on his egomania. (See also Trump’s shoutout to Viktor Orban, who has stroked his massive ego.) This point has relevance beyond the debate and raises yet another concern over his fitness for office. If Trump can be manipulated so easily, imagine how vulnerable he (and our country) would be in his interactions as president with hostile foreign leaders and others seeking to get the better of him/us.

Trump supporters were quick to blame bias on the part of the moderators for his poor performance. This is no excuse; Trump clearly was his own worst enemy and basically self-destructed. At the same time, the moderators left themselves open to criticism by fact-checking only Trump. While his lies were more frequent and blatant, Harris served up her own share of false or highly misleading statements.

Even apart from the bias issue, I’d submit that the debaters and, more importantly, the public are better served when moderators stick to asking questions–as the CNN team did in the Trump-Biden debate–rather than injecting themselves into the debate by engaging in distracting arguments with the candidates. Post-debate settings provide ample and much better venues for debate critiques, including balanced and comprehensive fact-checking. If debate moderators feel the need to be more active, they can (and, in fact, should) follow up more aggressively to press for answers to the many questions they ask that the candidates routinely evade or ignore.

 

The Supreme Court is under siege from Democratic politicians and left-leaning influencers who disdain its conservative majority. They attempt to discredit and weaken the Court through spurious attacks on its “legitimacy” and the integrity of individual justices.^[1]See here, here, and here.

They also offer “reform” proposals aimed at intimidating the justices and ultimately shifting the Court’s ideological balance back to the left. These proposals are mainly political grandstanding now, but they could become real if Democrats win the presidency and control of both houses of Congress in the 2024 elections. Senate Majority Leader Chuck Schumer vows that going after the Court, which he speciously describes as “a morass, both ethically and substantively,” will be “a very big priority.”

The most ominous proposal now on the table is S. 4973, entitled the “No Kings Act,” which Schumer recently introduced on behalf of himself and many other Senate Democrats. The bill purports to overrule the Supreme Court’s decision in Trump v. United States, which held that the Constitution grants presidents broad immunity from criminal prosecution. It claims to “clarify” that presidents have no immunity from criminal prosecution unless Congress so provides.^[2]Sections 2-3 of the bill. It also precludes vice presidential immunity, although that was not addressed in the Trump decision.  This directly contradicts the Court’s holding in the Trump decision. The bill goes on to prohibit the Supreme Court from reviewing its constitutionality and limits judicial review by lower federal courts.^[3]Section 4.

The Trump immunity decision is deeply flawed; proposing a constitutional amendment to overcome it, as President Biden did, would be justified on the merits although extremely difficult to achieve. However, Schumer’s attempt to reverse the decision by legislation is clearly unconstitutional.

Section 1 of Article III of the Constitution vests the judicial power of the United States “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Section 2 extends the judicial power to “all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States.” Section 3 grants the Supreme Court original jurisdiction in certain cases and provides that in all other cases “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

In his landmark 1803 opinion in Marbury v. Madison, Chief Justice John Marshall famously declared: “It is emphatically the province and duty of the Judicial Department to say what the law is.” Ever since, it has been widely accepted that the Supreme Court is the ultimate arbiter of the meaning of the Constitution and federal statutes.

It is (or should be) clear beyond reasonable doubt that, under Article III and the most basic separation of powers principles, Congress lacks appellate jurisdiction over the Supreme Court. If Congress disagrees with the Court’s interpretation of a federal statute, it can amend that law to embody its preferred interpretation; however, it cannot change the Court’s decision. Likewise, Congress cannot overrule or change a Supreme Court decision interpreting the Constitution—as the Trump decision does. Its only recourse is a constitutional amendment.

In controverting these bedrock principles, S. 4973 disingenuously invokes the clause in Article III, section 3, quoted above, which authorizes Congress to enact exceptions to the Supreme Court’s appellate jurisdiction. There is little case law interpreting this so-called “exceptions” or “jurisdiction stripping” clause, and academics differ on its precise scope.^[4]See here for general background. However, nothing in its text or history remotely suggests that it authorizes Congress to reverse existing Supreme Court precedents. Indeed, the leading cases interpreting the clause hold that Congress cannot use it to undermine judicial independence by instructing the Supreme Court or other federal courts how to decide cases.^[5]In an apparent throwaway line, the bill also claims, even more risibly, to be an exercise of congressional power under the Necessary and Proper Clause to determine which persons are subject to … Continue reading

Unsurprisingly, S. 4973 has been roundly criticized from  the ideological right^[6]See, e.g., here, here, here, and here. and from some on the left.^[7]See, e.g., here and here. The bill is so blatantly unconstitutional that, hopefully, even Democratic majorities in the next Congress would hesitate to pass it, or if they did, a Democratic president who respects the oath of office would refuse to sign it into law.

If the bill did somehow become law, it wouldn’t survive for long. Whatever the exceptions clause means, it’s hard to imagine that it could legitimately be used, as here, for the sole and transparent purpose of shielding an obviously unconstitutional law from Supreme Court scrutiny. But this is probably a moot point. Lower federal courts would surely strike the law down before it could reach the high court since they are, of course, bound to follow and apply the Supreme Court’s precedent in Trump.  

Perhaps the bill’s most worrisome aspect is that it illustrates how far even supposedly mainstream liberals are willing to go in their efforts to undermine the independence and integrity of the Supreme Court. And if they think they can nullify a constitutional law decision by legislation, why stop with the Trump case? They would have even more political incentive to attempt to legislate away the Dobbs decision, which overruled Roe v. Wade, and any number of other decisions reviled by the left.

The fact that Schumer and so many of his Democratic colleagues proudly embrace something as radical and outrageous as S. 4973 may also forecast that they are finally ready to launch their ultimate weapon against SCOTUS: court-packing. This is not only an insidious threat to judicial independence but the most dangerous as well since it actually can be accomplished by legislation.

Inevitably, what goes around comes around in the shameful, decades-long efforts by both parties to politicize the federal judiciary.^[8]See here and here. If Democrats are willing to push these terrible “reform” proposals, Republicans will no doubt follow suit when they regain power. The victims of the ever-escalating attacks on judicial independence are not just the courts but, ultimately, the American people.

 

President Biden’s decision to drop out of the 2024 election, while hardly surprising, certainly adds drama to the already dramatic twists and turns in the election–particularly of late. While it remains to be seen how it plays out, a few things seem fairly obvious.

First, Biden had no real choice but to quit the race. Democratic politicians and their media allies virtually destroyed his chances by their escalating expressions of doubt over his capacity to win reelection and serve a second term. It had reached the point where the growing perception they fed that he was unelectabe became a self-fulfilling reality. With friends like these, he was almost sure to lose.

Second, their hypocrisy in now praising Biden for his “selflessness” is breathtaking. These are the same folks who have been working intensely for weeks, overtly or covertly, to undermine his viability as a candidate and make it almost impossible for him to continue effectively. Many among them were also surely aware of his limitations for some time, but willing enough to cover them up before his debate performance made that no longer possible.

Third, it’s hard to believe that Democrats have either the time or the inclination to mount a serious, substantive contest over their presidential nomination at this late stage and after all their internal angst and dissension over Biden. Many are already coalescing behind Kamala Harris. If they do go through some sort of process other than selecting her by acclamation, it will probably be mainly window-dressing. What credible Democratic rival, particularly anyone looking to the future, would want to risk mounting a forceful, potentially divisive, and probably long-shot challenge to her at this point? Any real competition will most likely be limited to the nominee for vice president, where a couple of swing state governors (Whitmer, Shapiro) might give Democrats a much needed boost.

Last but not least, Trump’s malignant and utterly graceless statement on Biden dropping out refutes once again any fleeting notion that he has somehow taken on a less toxic persona.

In Trump v. United States, the Supreme Court held that presidents have broad immunity from criminal prosecution for acts involving their official functions. Notably, the six conservative justices in the majority abandoned the originalist and textualist interpretive principles they usually claim to embrace. Instead, they essentially invented presidential criminal immunity in a manner reminiscent of decisions from the freewheeling Warren Court era.

Nothing in the Constitution’s text grants criminal immunity to presidents; on the contrary, the most relevant constitutional provisions strongly suggest that there is no such immunity. History and tradition, albeit limited, likewise support the conclusion that presidents do not enjoy immunity from criminal prosecution.^[1]See here and below for more detail on these points.

The Court’s opinion rejects these specific points out of hand. It reasons more generally that the nature of presidential power under the Constitution and separation of powers principles require that presidents be accorded sweeping immunity from criminal prosecution for all their official actions. Such immunity is “absolute” regarding a president’s “core” constitutional functions; all remaining presidential functions are entitled either to absolute or “presumptive” immunity.  

The Court holds that the president’s exercise of core powers is wholly beyond the reach of Congress, including the criminal laws it enacts. Regarding other presidential powers, it says immunity is rooted in the need to ensure that the president is “energetic,” “vigorous,” and not “unduly cautious.”^[2]Slip op. at 14. The presumption of immunity can be overcome only by a showing that prosecuting a particular presidential act “would pose no [i.e., zero] ‘dangers of intrusion on the authority and functions of the Executive Branch.’”^[3]Id. (emphasis added).

In arriving at these conclusions, the Court relies mainly on prior decisions dealing with presidential privileges and immunities in other contexts. It leans heavily on a 1982 decision, Nixon v. Fitzgerald, which held that presidents enjoy absolute immunity from civil liability for all actions within the outer perimeter of their duties. However, this 5-4 decision likewise rests on a shaky foundation of policies the majority justices deduced from the structure and general provisions of the Constitution rather than anything dealing specifically with presidential immunity. The Fitzgerald opinion also put some distance between its holding on civil immunity and potential criminal immunity, observing that “there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.”^[4]457 U.S. at 754, n.37.

As noted above, the Court glosses over or ignores multiple specific indications that the Constitution does not grant presidents immunity from criminal prosecution. For starters, while the Constitution confers limited immunity on members of Congress, it says nothing about presidential immunity. On the contrary, Article I, section 3, clause 7 provides that persons convicted in an impeachment shall nevertheless remain “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” This language explicitly recognizes that officials subject to impeachment—which, of course, includes the president–are likewise subject to the criminal law.^[5]The Court rejected Trump’s absurd argument that this provision makes impeachment and conviction a prerequisite to criminal prosecution. Rather, it merely clarifies that an impeachment conviction … Continue reading

The Court’s only response is that this provision “does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular.”^[6]Slip op. at 38 (emphasis in original). But it does clearly indicate just that. It applies by its terms to any official who has been impeached and convicted on any grounds. Obviously, presidents are subject to impeachment and conviction on grounds relating to their official acts. Indeed, impeachments are typically grounded on official misconduct rather than private acts.

The Court asserts that historical evidence concerning presidential criminal immunity is “fragmentary” and “unhelpful.” It’s not surprising that the history is sparse since the framers of the Constitution gave no serious thought to immunizing the president. Having recently won independence from the British Crown, they had no interest in creating a chief executive with king-like attributes. Alexander Hamilton, a leading advocate for a strong president, affirmed in the Federalist Papers Nos. 65, 69 and 77 that the president would be subject to criminal prosecution. In Federalist 69, Hamilton distinguished the president from the English king in this respect:

“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” 

By contrast, he observed, “[t]he person of the king of Great Britain is sacred and inviolable.”

Finally, the Court asserts, wrongly, that all our Nation’s past practice establishes regarding whether presidents can be prosecuted is “silence.” Issues concerning presidential criminal immunity did not arise until the Watergate scandal of the 1970’s. Since then, however, it has been widely and consistently assumed that presidents are subject to criminal prosecution. Among those sharing this assumption were former Presidents Nixon, Ford, and Clinton as well as Trump’s attorneys during his second impeachment trial along with many senators who voted to acquit him on the basis that criminal prosecution was the proper recourse for his misconduct.

The Justice Department’s Office of Legal Counsel (OLC), another zealous advocate for the presidency, also espoused this position. OLC maintains that a president cannot be prosecuted while in office, but it has long recognized that former presidents are subject to the criminal law for their conduct in office. For example, summarizing earlier opinions, a 2000 OLC memorandum observed:

“To be sure, as the Court has emphasized, ‘[n]o man in this country is so high that he is above the law.’ . . . [I]mmunity from indictment and criminal prosecution for a sitting President would generally result in the delay, but not the forbearance, of any criminal trial. . . . A sitting President who engages in criminal behavior falling into the category of ‘high Crimes and Misdemeanors,’ U.S. Const, art. II, §4, is always subject to removal from office upon impeachment by the House and conviction by the Senate, and is thereafter subject to criminal prosecution.”

In sum, the Constitution’s text as well as all specifically relevant history and past practice that exists contradict the Court’s holding. But the Court had no persuasive response—in fact, little response at all—to any of this.

Unmoored from specific objective legal criteria, the Court’s opinion makes liberal use of policy arguments, many imported from Fitzgerald. It repeatedly stresses the need to ensure that the president is energetic, fearless, and not unduly cautious. It downplays the dissents’ concerns over presidential lack of accountability and potential abuses. It accuses the dissenters of “fear mongering on the basis of extreme hypotheticals” without specifically refuting any of them.^[7]Id. at 40. It counters with its own seemingly extreme but, according to the Court, “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.”

The Court ridicules the dissenters’ assertion that it places the president “above the law.” However, if the president is not entirely above the law, he is very close to it. The combined effect of this decision and Fitzgerald is to grant presidents absolute or presumptive immunity from all civil and criminal liability for all their official acts. They remain fully subject to criminal law only for their wholly private actions, which was never at issue.

The Court leaves some room for the presumption of criminal immunity to be rebutted and remands the case to the trial court to initially sort it out. However, the Court’s comments on the Trump indictment and its other general observations indicate that it will be challenging to overcome the presumption. It may also be difficult to separate out a president’s private actions.

The Court starts by placing official discussions between a president and his attorney general in the core functions category of absolute immunity.^[8]Id. at 20, 37. This approach would seem potentially applicable to presidential discussions with a host of other government officials as well. The Court also holds that the president’s motivations may not be scrutinized and that the fact that an action is allegedly illegal does not make it unofficial. Finally, the Court seems to severely limit the use of evidence concerning a president’s official acts in a prosecution based on his unofficial conduct.^[9]This may effectively foreclose prosecutorial efforts to counter Trump’s far-fetched claims that he sincerely believed the 2020 election was stolen from him.

It’s hard to predict the legal and practical fallout from the Trump decision either as to Trump or looking farther into the future. Perhaps the dire consequences that critics anticipate will prove to be exaggerated. What is clear is that the Court eschewed textualism and originalism, which provide a straightforward answer in this case, in favor of a muddled decision that rests on a highly dubious legal foundation.^[10]There may well be circumstances in which the application of particular criminal laws to particular presidential acts raises legitimate constitutional issues. (See Justice Barrett’s … Continue reading Conservative justices accuse those who favor such loose interpretive methods of “making stuff up,” particularly when they announce constitutional rights and protections that are nowhere mentioned in the Constitution’s text or firmly grounded in history and tradition. Yet, that is exactly what the conservatives did here.

Many critics will insist that this decision is further evidence that the current Court is “illegitimate” or in the tank for Trump. A far more likely explanation is that the conservative justices have a sincerely-held, if excessive, philosophical bias in favor of presidential prerogatives.^[11]See, for example, this article by (then Judge) Kavanaugh.

First the good news: The absence of an audience and the fact that the moderators did not engage in debate with the debaters eliminated distractions and enabled the candidates to be themselves. The bad news, which permeated everything else, is that the candidates were indeed themselves.

Overall, the debate reinforced how degraded our national politics have become with a presidential contest featuring two highly unpopular candidates who, for different reasons, both appear unfit for the presidency. As the ever-acerbic Maureen Dowd put it, we face an electoral choice between “the ghastly” and “the ghostly.”

The primary, pervasive takeaway from the debate was that President Biden is significantly impaired. Based on his excruciating debate performance and prior incidents, it’s hard not to doubt his capacity to serve a second term. Few are buying the notion that he was the victim of a “cold” or just having a “bad night.” Instead, many prominent voices on the left now openly question his electability and fitness for office and are calling for him to drop out of the race. (This includes some who had previously downplayed concerns over his acuity.)  

The intense focus on Biden diverted attention from Trump’s own miserable performance. He hardly answered any of the moderators’ questions and spewed a torrent of exaggerations, misrepresentations, and outright lies. Some were so preposterous as to insult the intelligence of anyone listening. The notion that Trump “won” the debate, at least in any positive sense, is bizarre. At best, he was marginally less outrageous and obnoxious than in previous debates. Even this probably resulted more from the format (limiting his ability to interrupt) than any genuine improvement on his part.

Who knows exactly what will unfold in the aftermath of the debate. Clearly, however, the main consequence is to leave Democrats in a very difficult bind of their own making (surely those close to Biden have long known of his issues) and very little time to resolve it.

One option is to ride it out with Biden. Actually, this is the only option unless Biden can be persuaded to step aside. So far, there is no indication that he will; to the contrary, he seems to be pushing back hard.  Continuing with Biden is risky and likely to become more so. There were major concerns over Biden’s physical and mental fitness going into the debate and it strongly reinforced them. According to a post-debate poll, close to three-quarters of registered voters think Biden lacks the mental capacity to be president and should not be running. Almost half of Democratic voters think he should not run.

These concerns will not simply blow over; people can’t unsee what they saw in the debate. Assurances of his fitness and rejection of any contrary suggestions  will no longer be taken at face value. Insulting and dismissing as “bedwetters” those who are skeptical based on what they observed first hand is likely to backfire; it will only engender resentment at being gaslighted. Biden will not get away with a stealth campaign; everything he says and does will be scrutinized for signs of possible decline. There will be intense pressure for him to submit to unscripted events such as media interviews and press conferences in order to prove himself. Assuming that his debate performance was not an aberration, these events don’t figure to go well.

The other option is for Democratic elder statesmen (Obama, Schumer, etc.) and close confidants to convince Biden—probably both Joe and Jill—that he should step aside for the good of the party, his legacy, and the country. However, this option carries its own complications. First among them is what to do about Kamala Harris. While she is as unpopular as Biden, dropping her would be a major challenge for identity-obsessed Democrats. Another problem is holding an open convention. This would invite chaos and warfare among the many Democratic factions that have up to now coalesced behind Biden.

One possible approach: (1) Convince Biden to withdraw and to urge his delegates to support a specific candidate, such as the governor of one of two key swing states—Whitmer of Michigan or Shapiro of Pennsylvania. (2) Convince Harris to remain on the ticket as vice presidential nominee.

Whatever strategy the Democrats adopt to address the mess they find themselves in following the debate, they need to act quickly and decisively.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

 

The Supreme Court’s decision last week in Garland v. Cargill checked a lot of boxes in the ongoing ideological and political warfare over the Court:

• • It involved the always controversial subject of gun control, although it was not a Second Amendment case as such. (No one argued that banning bump stocks would be unconstitutional.)
  • It featured a 6-3 split with all Republican-appointed “conservative” justices in the majority and all Democratic “liberal” appointees in dissent.
  • It dealt with an issue that Congress tried but failed to resolve by clarifying legislation.
  • It specifically addressed an executive agency’s attempted resolution of the issue in the absence of congressional action.
  • The majority relied on a strict reading of the relevant statutory text, while the dissenters relied primarily on the purposes of the statute and consequences of the decision.
  • While faithful to the statutory language, the outcome was unappealing (to say the least) as a matter of policy and common sense.
  • The decision was praised by conservative media but condemned by media on the left.

By way of background, federal law generally bans private ownership of machine guns, defined as weapons that fire multiple rounds automatically and without reloading “by a single function of the trigger.” When added to a semiautomatic rifle, a bump stock enables it to fire rounds at rates approaching those of machine guns with minimal effort by the shooter. However, the trigger must be activated for each round to fire. Before 2017, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) did not consider a weapon equipped with a bump stock to be a machine gun.

In 2017, a shooter in Las Vegas used bump stock-equipped weapons to kill 58 people and wound another 500 or more. This horrific tragedy understandably prompted widespread outrage and calls for bump stocks to be banned. Many bills to do so were introduced in Congress but they stalled. At the urging of then President Trump, ATF subsequently reversed its prior position and determined that weapons with bump stocks were indeed machine guns. The Court overturned that ATF determination in Cargill.

Media reaction adhered to the usual ideological divide. For example, the Wall Street Journal extolled the Cargill decision as a “straightforward case of statutory interpretation” that corrected an ATF overreach that had “let Congress off the hook.” A Washington Post pundit countered: “Conservatives on the Supreme Court have decided that more Americans must die in mass shootings because they have a quibble over the word ‘function.’”  

The Cargill decision fits neither Manichean media characterization. The majority’s reading of the specific statutory language seems correct, although hardly straightforward. It takes much excruciatingly technical analysis to get there. On the other hand, the dissent seems correct in saying that a semiautomatic weapon with a bump stock is functionally equivalent to a machine gun and thus deserves the same ban.

In any event, it’s sheer demagoguery to accuse the Court of having blood on its hands for applying the law as written, no matter how technical it may be. The real culprit here is, of course, Congress for once again abdicating its responsibilities to the executive branch and the courts.

A brief concurrence by (the much maligned of late) Justice Alito captures the essence of the case:

“There can be little doubt that the Congress that enacted [the machine gun ban] would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it.”

He concludes by in effect urging Congress to finish the task it abandoned in the wake of the 2017 Las Vegas tragedy.

The guilty verdict against Donald Trump in his New York “hush money” trial certainly conveys a sense of schadenfreude. Trump’s lifetime of playing fast and loose with the law may finally be catching up with him. No doubt some also view this conviction as a proxy for the more compelling federal criminal cases against him that are unlikely to go anywhere before the election and will surely die if he wins. And it’s gratifying to see Trump’s usual scorched earth strategy—contest everything; attack everyone; deny all, including the undeniable—crash and burn. Many experts think this strategy cost him any chance for at least a hung jury.

The case looks quite different, however, from a dispassionate legal perspective. The result may not be the utter travesty those on the right claim it is. Trump is no innocent victim; and the jury can’t be faulted for the guilty verdict it delivered under the facts, legal arguments, and judicial instructions presented to it. However, this was clearly a politically motivated, selective prosecution based on dubious charges. In essence, the prosecution sought to make a crime out of something that was not illegal. The case lived up (down?) to its widespread reputation as the weakest of the criminal cases against Trump.

Background

The key facts underlying the case are well known and almost surely accurate: Trump had a tryst with Stormy Daniels, instructed Michael Cohen to buy her silence in order to suppress politically damaging information about it, and business records were falsified to cover up the true nature of Cohen’s payments to Daniels as well as Trump’s subsequent reimbursement to Cohen for those payments. The evidence of Trump’s personal involvement in falsifying the records is less clear-cut but sufficient for the jury to find him complicit.

The genesis of the decision to bring this prosecution leaves no serious doubt that it was politically motivated. According to the New York Times, the Manhattan District Attorney’s office under former DA Cyrus Vance spent years “hunting” for a criminal case to bring against Trump, but even it passed on this one. Then Alvin Bragg, who campaigned for office as a Trump nemesis, was elected DA. A generally friendly profile of Bragg in the Times described him as “a man of unmistakable ambition who has hitched his aspirations to the pursuit of Donald J. Trump.” Bragg also initially resisted this case, which had become known as “the zombie case.” He revived it only after a prosecutor in his office resigned and went public with a letter severely criticizing Bragg for not being sufficiently aggressive in pursuing Trump.

The specific charges, described in more detail below, attest to the contrived and selective nature of the prosecution. New York prosecutors hardly ever use falsification of records as the sole grounds for a criminal case, as they did here. The election law provision prosecutors invoked to bolster their case is quite obscure and hardly ever used in any way at all. The Washington Post could find only three prosecutions under this provision over its entire history.

It would be more than naive to think that a case based on such unusual charges and with such a major investment of investigative and prosecutorial resources would have been pursued against anyone other than Trump.

Analysis of the Case

In addition to its political origins, the case rested on convoluted, highly imaginative legal theories that distorted what were relatively minor misdemeanor falsifications of records into ill-defined felonies. Remarkably, the prosecution’s theory of the case and core narrative had little to do with the actual charges.

Based on the above facts, prosecutors had solid grounds to charge Trump with misdemeanor falsification of business records under Article 175 of the New York Penal Law, which criminalizes making or causing to be made false entries in the business records of an enterprise with intent to defraud.^[1]The “intent to defraud” element is somewhat elusive. There were no apparent victims of fraud—certainly not voters since all the entries were made after the 2016 election. In fact, because the … Continue reading However, the statute of limitations for such misdemeanor charges expired long before prosecutors finally decided to resurrect the hush money case.

In order to overcome the statute of limitations problem and make the case appear more serious, prosecutors decided to charge Trump under another provision of Article 175^[2]Section 175.10, Falsifying business records in the first degree. that elevates falsification of records to a felony (with a longer limitations period) when the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”

Prosecutors did not actually charge Trump with any crime beyond falsifying records. They used the “another crime” theory only to enhance the records falsification counts. It took them a long time to decide, or at least disclose, what this other crime could be. They finally identified it as section 17-152 of the New York Election Law, which provides:

     “Conspiracy to promote or prevent election. Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

Prosecutors opened the trial by describing the case as “election fraud, pure and simple.” Their apparent theory was that Trump sought to interfere in the election and defraud voters by depriving them of knowledge about his affair with Daniels, which might materially affect their vote. One pundit observed at the end of the trial that the prosecutors “did a masterly job of telling a compelling story not of faulty bookkeeping but of criminal election interference.”

There are two basic problems with this. First, Trump was not prosecuted for criminal election interference; rather, he was charged only with bookkeeping violations. Second, the “hush money” payments to Daniels at the heart of the prosecution’s theory of election fraud or interference, while perhaps unsavory, were not illegal as such.

Section 17-152 prohibits conspiracies to influence an election by unlawful means. The alleged conspiracy here was to influence the 2016 presidential election (to promote Trump) by buying Stormy Daniels’ silence. But neither the objective (silencing Daniels) nor the means to achieve it (paying her off) was unlawful. Political candidates seek to limit negative information about themselves all the time, and paying to suppress information is commonplace in politics and other contexts.

In an effort to identify something illegal in this scheme that would convert it into a prohibited section 17-152 conspiracy, prosecutors came up with three alternative “unlawful means” of accomplishing it: (1) violations of the Federal Election Campaign Act (FECA), (2) falsification of other business records, and (3) violations of tax laws. Judge Merchan incorporated all three into his jury instructions.^[3]Pages 30-34.

This is a huge stretch. None of the three constitutes a “means” to achieve the alleged conspiracy’s objective of silencing Daniels under any reasonable interpretation of that term. All were at most peripheral to the scheme or consequences of it rather than ways to make it happen.

Injecting FECA into this case raises a number of legal issues.^[4]They include, among others, whether FECA can be used in state prosecutions, whether the Daniels payments constituted a campaign contribution under FECA, and whether Judge Merchan’s instructions and … Continue reading But putting those aside, any violations of FECA’s contribution limits or reporting requirements that may have occurred played no direct role–certainly not a determinative role–in buying Daniels’ silence. The same is true of any additional bookkeeping violations. They might be part of the effort to disguise the true nature of the Daniels payments, but they played no significant role in silencing her.

Possible tax violations are the most attenuated of all. Presumably,^[5]Judge Merchan’s jury instructions did not address what the alleged tax violations (or additional bookkeeping violations) were or how they could constitute an “unlawful means” under section … Continue reading the contention here is that the effort to disguise the purpose of Trump’s repayments to Cohen  resulted in improperly attributing income to Cohen and businesses expenses to Trump. But this has no bearing whatever on the Daniels payments.

In sum, FECA, bookkeeping, or tax violations cannot reasonably be substituted as an unlawful means of effecting an election-related conspiracy for purposes of section 17-152. Their relationship to the true means of carrying out the alleged conspiracy—the Daniels payments—ranges from tangential to nonexistent.    

Finally, it’s noteworthy that since Judge Merchan told the jury they need not agree on which of the three purported “unlawful means” satisfied section 17-152, what they decided on this issue is unknown. Therefore, if an appellate court rejects any one of the three as a viable unlawful means under section 17-152, that would seem to constitute automatic grounds for reversing Trump’s conviction.

Potential Impact of the Case

While the Trump verdict rests on a shaky legal foundation and appears vulnerable to reversal on appeal, its ultimate fate will not be determined for some time—almost certainly not until after the 2024 election. Its political effect on the 2024 election is also hard to foresee at this point. 

What can be predicted with great confidence is that this case, whatever its ultimate legal outcome and impact on the election, will further debase our already fractured politics. Given the political and legally problematic nature of the case, a large segment of the American public will never accept Trump’s conviction as legitimate.^[6]Even some of the few remaining Republicans who are not Trump acolytes strongly criticized the prosecution of this case. And if Trump loses in November, the legitimacy of the election will surely be widely challenged based on it.

The pushback figures to be even more severe than what followed the 2020 election. Unlike Trump’s phony stolen election claims then, there will be a plausible basis for such claims this time around. The outrage will surely intensify all the more in the (not unlikely) event that the conviction is overturned after the election.

It’s regrettable that the far more serious federal criminal case against Trump now pending in Washington did not precede this one to trial and verdict.^[7]There are several reasons for this, but  the Justice Department deserves primary blame due to its multi-year delay in initiating the case. A guilty verdict in that case would have been more credible than Trump’s New York conviction and surely would have carried greater weight with the general public, excluding MAGA die-hards.

 

Here’s a thought experiment for those obsessing over the Alito family’s flag-flying practices:

Assume that you are a judge on a court whose credibility and legitimacy are under constant political attack and whose members are accused of bias and partisan hackery at the slightest provocation.

Assume further that you understand the inverted American flag and the “Appeal to Heaven” flag to symbolize support for Trump’s “Stop the Steal” campaign and the January 6 attack on the Capitol—dubious as this assumption is.^[1]It’s far from clear that either the inverted American flag or the Appeal to Heaven flag were then, or are even now, widely known as pro-Trump symbols. Indeed, many commenters expressed surprise at … Continue reading

Given these assumptions, would you publicly display the two flags, thereby giving your critics a silver platter full of grist to use in their efforts to undermine you and your court?

Neither would Justice Alito.

The assertion by the Justice’s critics that the flag displays signaled pro-Trump bias requiring his recusal or even his resignation is illogical and implausible. A far more plausible explanation: Like most people, neither Justice Alito nor his wife^[2]According to the Washington Post, Mrs. Alito has no known history of support for Trump’s stolen election claims or the January 6 riot. associated the inverted flag with Trump at the time. Rather, as the Alitos insist, Mrs. Alito intended it only as a distress signal to a neighbor with whom she was feuding. This bizarre incident is surely not a good look for either Alito, but hardly the basis for an ethics scandal. Like most of us, the Alitos probably did not associate the Appeal to Heaven flag with Trump either. (No doubt most of the public had never heard of this flag.) Thus, there is no reason to think that their purpose in flying it, whatever it may have been, was to show allegiance to him.

The argument that these flag displays give rise to at least the appearance, if not the reality, of bias likewise presumes that the Alitos as well as the public associated the flags with Trump and his bogus election claims at the time the displays occurred. But the evidence for this connection is both thin and obscure. Indeed, there appears to be no evidence that the flags were seen or used in this way by anyone other than a few January 6 rioters and members of some fringe MAGA sects.

Importantly, the media is only now devoting major reporting to the notion that such a connection exists, long after the events in question took place. It’s telling in this regard that the flags did not create a stir at the time they were displayed—particularly so in the case of the inverted flag, which was displayed when the Stop the Steal campaign and the January 6 riot were fresh in the public mind. In fact, we now learn that the Washington Post investigated this episode at the time and determined it to be a nothingburger.^[3]The Post declined to report on the episode, finding no clear indication that it was rooted in politics. If the inverted flag was indeed widely understood at the time as a symbol of support for … Continue reading