A common theme cutting across seemingly unrelated headlines is how the Supreme Court's own recent behavior has left it with little room to maneuver around a slew of political and legal landmines
Well …… gosh. Now we know the court is terribly busy and is moving as fast ans it can and that political arguments don’t supersede legal ones. And we also know that the court had ample basis for taking the immunity case. “Politics ” is sort of a constrained way to refer to the most important and consequential election in most of our lives, including maybe the nation’s life. But what is a political choice? It is a fundamental mistake to argue that not taking this case or accelerating it is political while doing what the court did - which is everything possible to delay this case until after the election (when Trump can dismiss it ) is somehow not political. Occams Razor is a,better guide. This is a politicized, corrupt court that has deliberately delayed this case so that Trump doesn’t have to worry about it.
The Supreme Court should be concerned with whether the Jan. 6 prosecution can proceed to verdict before the election. But, even if it shouldn't dirty its hands with that "political" issue and even if there are situations in which a president might plausibly claim immunity from prosecution, Trump's own claim of immunity is absurd and is offered only for the purpose of delay. Any court ought to slap down any litigant who plays that game so obviously, but the Court hasn't used any of several opportunities it's had to do so.
If I'm charged next year with a murder I committed in order to further my research, I'll argue that academics are absolutely immune for acts undertaken in furtherance of their important social role. When the trial judge rules against me, I suppose our legal system will put my trial on hold for months while I appeal, seek rehearing en banc, and then seek Supreme Court review. For I'm claiming a right not to be tried at all. Will commentators call the issue I've raised important because it's never formally been resolved, because some academics may be entitled to some kind of privilege, and because it would be a big deal if my claim prevailed? The Court's validation of Trump's abusive strategy is shameful.
I don't understand how removing Trump from the ballot in three states also removes him from the other 47.... also the argument that the people deserve the right to vote on Trump in November reminds me of McConnell denying Obama a supreme court nomination a year before his term was up... again saying that the people need to be able to weigh in on this... they already weighed in on it when they elected Obama
This entry seems to have more words in bold than usual.
As to the "vitriolic" replies ... this will be somewhat one as well. To your defense of SCOTUS.
I'm sorry they are sooooo busy (e.g., taking abortion related cases after stripping abortion rights from millions of people) writing sixty-odd opinions split nine ways.
But they were asked to take the immunity case up in December. They waited weeks to decide this time. Now, they put it off to the end of April. I know they are SO BUSY, but this is sort of time sensitive. They could have squeezed it in sooner, even if it required them to postpone something.
And the timing of the release today is not just accidental. It was a CHOICE on their part. I find it hard (assuming it's the Colorado case) to believe they couldn't drop it a few days earlier when they were available. How much rope are these people going to get?
Just to toss it in there, it's rank corruption that Thomas is involved in both cases. Which they shouldn't have taken (at least in the way they did) & will what? Decide against Trump but find a way to weaken the D.C. opinion somehow to answer a question with no compelling need to be answered now?
"[M]y own view is more complicated—and, maybe, more naïve." So it strikes me (to put it charitably, which you deserve). Your respect and love for, even identification with, the Court as an institution is blinding you to the gross corruption the current majority of the Court is now displaying. You chronicle it, but refuse to see it for what it is. How about today's ruling on the Colorado-primary-ballot case -- blatantly reaching out to decide more than they had to. (The "It's all these problems, not just one, that demand this result" explanation is a wholly unconvincing response to the dissenters.) Of course their treatment of the immunity case is Exhibit A -- turning a blind eye to the need to avoid having the electorate informed whether a candidate for the power of the presidency really is an insurrectionist, not the victim of a "political witch hunt," before casting their votes, because he's THEIR insurrectionist and would-be "president for life" autocrat, AND framing the QP with the bizarre phrase "conduct *alleged to involve* official acts." As Bowman Cutter writes, "Occam[']s Razor is a,better guide" to what's going on than is your fervent wish that the Court continues to deserve respect.
Since I follow the Texas cases, thank you for your coverage of the Fifth's bizarre behavior. And your comments on this and the emergency application related to the Idaho case are spot on.
What I'm seeing generally in the Fifth cases is a decent judge, David Ezra, rules based on law, but this frequently goes against Texas, in which case he gets verbally abused by the Fifth...which seems to never rule based on law, but on whim, whimsy, or in most cases, petty peevishness. And since SCOTUS doesn't rule in their favor most of the time, they're using this as an opportunity to extend their petty behavior to SCOTUS.
What we need is a court system to override our current court system, because we have no checks and balances in the existing one.
Given the Question Presented, what would bar criminal prosecution if the complaint specifically alleged that the acts in question were NOT in the course of official duties?
How much of this lack of definition, or as you put it, "role morality", is down to CJ Roberts, who by most observers' reckoning, is one of the weaker Chief Justices in the past several decades. He has spectacularly failed IMHO in attempting to rein in his far-right brethren Alito and Thomas, whose opinions can hardly be classified as reasoned and collegial. And whatever efforts Roberts has tried to do in conference to forcefully argue for a narrow rather than overly broad majority decisions in seminal cases have as well gone down in flames.
Actually, to speak of "the Roberts Court" is to suggest a rather pejorative note, all self-inflicted I'm sorry to say.
Wow, the Trump v Anderson decision was fascinating reading. Sure, the decision was unanimous, but it certainly wasn't unanimous in scope. The three liberals felt the majority went beyond what was necessary, and then Barrett comes along, seemingly chastising them and telling the rest of us to ignore them.
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Steve, any clues to the thinking of Sotomayor/Kagan/Jackson as to why Colorado couldn't disqualify an insurrectionist? (I'm mystified that they just supported the judgment without explaining why!) Lawrence Tribe noted on the Last Word last night that "the 50 different jurisdictions" argument is specious: the Court COULD have agreed with the analysis of Colorado courts based on the extensive factual record they developed--without challenge from Trump--that he was indeed disqualified. And being the Supreme Court, that judgment would bind the whole nation.
You left yourself wide open! My own recommendations for the Supreme Court?
These are taken primarily from the enacting statement and Article III. Governed by the text, the Court has no power over it, so Jacobson had no power to affect the legal force of the text's enacting statement. They may not construe the text as a contract alone or omit relevant text.
The Supreme Court is not final. Congress can repeal a ruling by a constitutional statute. Their power to legislate for the nation is the highest power we vest in government. If their reasoning and the Court's differ, Congress controls.
Interpretation is seldom necessary or proper but when it is the first step should be applying any needed Declaratory text the Constitution does not repeal. As the document that incorporated the nation and states as entities the Declaration can never be entirely repealed.
The Posterity clause bars limiting the power of future benches of the Court with extrabehavioral rules, doctrines, or tests. Their liberty to read the supreme law for us must remain as perfect as when the first Justices lent their readings of the text to their colleagues' first constitutional cases.
By this token, precedent does not bind the Supreme Court. If you know of a decision free of precedent later than Amendment XIII, I'd appreciate your citing it. Constitutional avoidance has led us far from law, as was its intent during Reconstruction. Supreme jurisprudence applies the Constitution and constitutional federal laws and treaties. Most cases appealed to the Supreme Court can be decided by applying these three without analysis, let alone interpretation.
A court, including the Supreme Court, should cite a prior opinion only as far as their reasoning would duplicate it, and if a case can be decided entirely on canonical precedent without falling into error there is no just cause for accepting it. That's one of the few textually acceptable limits on the obligation expressed in Article III section 2's "all." Before reading your The Shadow Docket I believed the certiorari doctrine was anticanonical except for decisions free of judicial error. You convinced me the office includes encouraging full or partial resolution below by timing and partial joinder of constitutional matters, implied in the text by allowing only one Supreme Court but unlimited inferior courts.
However, when the Supreme Court does reject a case it must provide the people its reasoning. The Petition clause requires it, including strategies or informal rules so we can decide whether to petition for their review. Lower courts will then need the Court's guidance. Congress also needs them to make laws governing the Supreme Court's appellate jurisdiction or governing judicial behavior. It is neither necessary nor proper for the Supreme Court to make these itself. Nor may a public office be privatized. The Judicial Conference of the United States is a private organization that has far overstepped its authority. Only Congress may establish laws necessary and proper for the execution of any power vested in the text. (And the people's petitions for review of good behavior must go directly to the House.)
Mandatory precedent violates Posterity's liberty interests in every court. They are of course fallible, and since error is especially common when divisions of power are reviewed, placing any officers on pedestals perniciously violates the Titles of Nobility clauses.
Our system of regional stare decisis also violates the Union mandate. We have state courts for regional matters with the underused Full Faith and Credit, Equal Privileges and Immunities, and Equal Protection under the Laws to unify them. The decisions limiting these clauses' use sets court above text, which no court may do. We need Congress to establish a procedure for the Supreme Court to remand to them for legislation any matter a court has lawfully excluded from any of the three. The same procedure should apply when a statute is held too broad or vague for use. Separation of powers means each branch should do its own work. The ability to remand congressional matters to Congress would separate the powers properly, prevent injustice, and even shorten the docket. States should consider the same.
Courts should enforce the Titles of Nobility clause by keeping titles properly attached to their officers. Not even a general remains a general when no longer serving; they will be the first to admit the need for the Titles of Nobility clauses to security against coups. Barring the title "the Honorable" from any American would also help, as would legislative and judicial correction of anything that tends towards a caste system in governance. The Titles of Nobility clauses' bar is easily seen in the speed with which the popular expression "meritocracy" led to the expression "political class" and from there, shockingly, to "ruling class." The people reserved that to ourselves and our instrument the Constitution.
Hmmm, the Starbucks staff is starting to look impatient. All for now.
Is there any way to pressure Justice Thomas to recuse himself from the Trump Immunity Appeal case other than beginning protests in front of the Supreme Court buildings, and in capitals throughout the United States?
The Supreme Court should have looked at the Colorado
Supreme Court’s factual determinations about whether
or not Trump engaged in an insurrection against our federal government. If the factual determinations were sufficient the the Supreme Court should have made the final determination if Trump was engaged in such an insurrection and disqualify him. If factual determinations were not sufficient to make a determination they should have returned the case to the Colorado Court for any additional
factual determinations they needed to make such a decision.
Well …… gosh. Now we know the court is terribly busy and is moving as fast ans it can and that political arguments don’t supersede legal ones. And we also know that the court had ample basis for taking the immunity case. “Politics ” is sort of a constrained way to refer to the most important and consequential election in most of our lives, including maybe the nation’s life. But what is a political choice? It is a fundamental mistake to argue that not taking this case or accelerating it is political while doing what the court did - which is everything possible to delay this case until after the election (when Trump can dismiss it ) is somehow not political. Occams Razor is a,better guide. This is a politicized, corrupt court that has deliberately delayed this case so that Trump doesn’t have to worry about it.
The Supreme Court should be concerned with whether the Jan. 6 prosecution can proceed to verdict before the election. But, even if it shouldn't dirty its hands with that "political" issue and even if there are situations in which a president might plausibly claim immunity from prosecution, Trump's own claim of immunity is absurd and is offered only for the purpose of delay. Any court ought to slap down any litigant who plays that game so obviously, but the Court hasn't used any of several opportunities it's had to do so.
If I'm charged next year with a murder I committed in order to further my research, I'll argue that academics are absolutely immune for acts undertaken in furtherance of their important social role. When the trial judge rules against me, I suppose our legal system will put my trial on hold for months while I appeal, seek rehearing en banc, and then seek Supreme Court review. For I'm claiming a right not to be tried at all. Will commentators call the issue I've raised important because it's never formally been resolved, because some academics may be entitled to some kind of privilege, and because it would be a big deal if my claim prevailed? The Court's validation of Trump's abusive strategy is shameful.
I don't understand how removing Trump from the ballot in three states also removes him from the other 47.... also the argument that the people deserve the right to vote on Trump in November reminds me of McConnell denying Obama a supreme court nomination a year before his term was up... again saying that the people need to be able to weigh in on this... they already weighed in on it when they elected Obama
This entry seems to have more words in bold than usual.
As to the "vitriolic" replies ... this will be somewhat one as well. To your defense of SCOTUS.
I'm sorry they are sooooo busy (e.g., taking abortion related cases after stripping abortion rights from millions of people) writing sixty-odd opinions split nine ways.
But they were asked to take the immunity case up in December. They waited weeks to decide this time. Now, they put it off to the end of April. I know they are SO BUSY, but this is sort of time sensitive. They could have squeezed it in sooner, even if it required them to postpone something.
And the timing of the release today is not just accidental. It was a CHOICE on their part. I find it hard (assuming it's the Colorado case) to believe they couldn't drop it a few days earlier when they were available. How much rope are these people going to get?
Just to toss it in there, it's rank corruption that Thomas is involved in both cases. Which they shouldn't have taken (at least in the way they did) & will what? Decide against Trump but find a way to weaken the D.C. opinion somehow to answer a question with no compelling need to be answered now?
"[M]y own view is more complicated—and, maybe, more naïve." So it strikes me (to put it charitably, which you deserve). Your respect and love for, even identification with, the Court as an institution is blinding you to the gross corruption the current majority of the Court is now displaying. You chronicle it, but refuse to see it for what it is. How about today's ruling on the Colorado-primary-ballot case -- blatantly reaching out to decide more than they had to. (The "It's all these problems, not just one, that demand this result" explanation is a wholly unconvincing response to the dissenters.) Of course their treatment of the immunity case is Exhibit A -- turning a blind eye to the need to avoid having the electorate informed whether a candidate for the power of the presidency really is an insurrectionist, not the victim of a "political witch hunt," before casting their votes, because he's THEIR insurrectionist and would-be "president for life" autocrat, AND framing the QP with the bizarre phrase "conduct *alleged to involve* official acts." As Bowman Cutter writes, "Occam[']s Razor is a,better guide" to what's going on than is your fervent wish that the Court continues to deserve respect.
Since I follow the Texas cases, thank you for your coverage of the Fifth's bizarre behavior. And your comments on this and the emergency application related to the Idaho case are spot on.
What I'm seeing generally in the Fifth cases is a decent judge, David Ezra, rules based on law, but this frequently goes against Texas, in which case he gets verbally abused by the Fifth...which seems to never rule based on law, but on whim, whimsy, or in most cases, petty peevishness. And since SCOTUS doesn't rule in their favor most of the time, they're using this as an opportunity to extend their petty behavior to SCOTUS.
What we need is a court system to override our current court system, because we have no checks and balances in the existing one.
I very much appreciate this insight - thanks so much!
Given the Question Presented, what would bar criminal prosecution if the complaint specifically alleged that the acts in question were NOT in the course of official duties?
How much of this lack of definition, or as you put it, "role morality", is down to CJ Roberts, who by most observers' reckoning, is one of the weaker Chief Justices in the past several decades. He has spectacularly failed IMHO in attempting to rein in his far-right brethren Alito and Thomas, whose opinions can hardly be classified as reasoned and collegial. And whatever efforts Roberts has tried to do in conference to forcefully argue for a narrow rather than overly broad majority decisions in seminal cases have as well gone down in flames.
Actually, to speak of "the Roberts Court" is to suggest a rather pejorative note, all self-inflicted I'm sorry to say.
Wow, the Trump v Anderson decision was fascinating reading. Sure, the decision was unanimous, but it certainly wasn't unanimous in scope. The three liberals felt the majority went beyond what was necessary, and then Barrett comes along, seemingly chastising them and telling the rest of us to ignore them.
Wowser.
This court is ignorant, Evil 💩
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.The recovery team also specializes in recovering lost funds to scams or frauds, contact them ((hacksolution7@gmail.com))
Steve, any clues to the thinking of Sotomayor/Kagan/Jackson as to why Colorado couldn't disqualify an insurrectionist? (I'm mystified that they just supported the judgment without explaining why!) Lawrence Tribe noted on the Last Word last night that "the 50 different jurisdictions" argument is specious: the Court COULD have agreed with the analysis of Colorado courts based on the extensive factual record they developed--without challenge from Trump--that he was indeed disqualified. And being the Supreme Court, that judgment would bind the whole nation.
You left yourself wide open! My own recommendations for the Supreme Court?
These are taken primarily from the enacting statement and Article III. Governed by the text, the Court has no power over it, so Jacobson had no power to affect the legal force of the text's enacting statement. They may not construe the text as a contract alone or omit relevant text.
The Supreme Court is not final. Congress can repeal a ruling by a constitutional statute. Their power to legislate for the nation is the highest power we vest in government. If their reasoning and the Court's differ, Congress controls.
Interpretation is seldom necessary or proper but when it is the first step should be applying any needed Declaratory text the Constitution does not repeal. As the document that incorporated the nation and states as entities the Declaration can never be entirely repealed.
The Posterity clause bars limiting the power of future benches of the Court with extrabehavioral rules, doctrines, or tests. Their liberty to read the supreme law for us must remain as perfect as when the first Justices lent their readings of the text to their colleagues' first constitutional cases.
By this token, precedent does not bind the Supreme Court. If you know of a decision free of precedent later than Amendment XIII, I'd appreciate your citing it. Constitutional avoidance has led us far from law, as was its intent during Reconstruction. Supreme jurisprudence applies the Constitution and constitutional federal laws and treaties. Most cases appealed to the Supreme Court can be decided by applying these three without analysis, let alone interpretation.
A court, including the Supreme Court, should cite a prior opinion only as far as their reasoning would duplicate it, and if a case can be decided entirely on canonical precedent without falling into error there is no just cause for accepting it. That's one of the few textually acceptable limits on the obligation expressed in Article III section 2's "all." Before reading your The Shadow Docket I believed the certiorari doctrine was anticanonical except for decisions free of judicial error. You convinced me the office includes encouraging full or partial resolution below by timing and partial joinder of constitutional matters, implied in the text by allowing only one Supreme Court but unlimited inferior courts.
However, when the Supreme Court does reject a case it must provide the people its reasoning. The Petition clause requires it, including strategies or informal rules so we can decide whether to petition for their review. Lower courts will then need the Court's guidance. Congress also needs them to make laws governing the Supreme Court's appellate jurisdiction or governing judicial behavior. It is neither necessary nor proper for the Supreme Court to make these itself. Nor may a public office be privatized. The Judicial Conference of the United States is a private organization that has far overstepped its authority. Only Congress may establish laws necessary and proper for the execution of any power vested in the text. (And the people's petitions for review of good behavior must go directly to the House.)
Mandatory precedent violates Posterity's liberty interests in every court. They are of course fallible, and since error is especially common when divisions of power are reviewed, placing any officers on pedestals perniciously violates the Titles of Nobility clauses.
Our system of regional stare decisis also violates the Union mandate. We have state courts for regional matters with the underused Full Faith and Credit, Equal Privileges and Immunities, and Equal Protection under the Laws to unify them. The decisions limiting these clauses' use sets court above text, which no court may do. We need Congress to establish a procedure for the Supreme Court to remand to them for legislation any matter a court has lawfully excluded from any of the three. The same procedure should apply when a statute is held too broad or vague for use. Separation of powers means each branch should do its own work. The ability to remand congressional matters to Congress would separate the powers properly, prevent injustice, and even shorten the docket. States should consider the same.
Courts should enforce the Titles of Nobility clause by keeping titles properly attached to their officers. Not even a general remains a general when no longer serving; they will be the first to admit the need for the Titles of Nobility clauses to security against coups. Barring the title "the Honorable" from any American would also help, as would legislative and judicial correction of anything that tends towards a caste system in governance. The Titles of Nobility clauses' bar is easily seen in the speed with which the popular expression "meritocracy" led to the expression "political class" and from there, shockingly, to "ruling class." The people reserved that to ourselves and our instrument the Constitution.
Hmmm, the Starbucks staff is starting to look impatient. All for now.
Is there any way to pressure Justice Thomas to recuse himself from the Trump Immunity Appeal case other than beginning protests in front of the Supreme Court buildings, and in capitals throughout the United States?
The Supreme Court should have looked at the Colorado
Supreme Court’s factual determinations about whether
or not Trump engaged in an insurrection against our federal government. If the factual determinations were sufficient the the Supreme Court should have made the final determination if Trump was engaged in such an insurrection and disqualify him. If factual determinations were not sufficient to make a determination they should have returned the case to the Colorado Court for any additional
factual determinations they needed to make such a decision.