Justice Roberts’ Drone Strike on George Washington’s Legacy
Chief Justice John Roberts cloaked his radical opinion granting Presidents broad immunity in the Farewell Address of George Washington, normally celebrated as the codification of the peaceful cession of power, the humility of the role of the President.
Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.
It is these enduring principles that guide our decision in this case.
But Roberts instead focuses on Washington’s warning against factionalism — and from there, to a claim to honor separation of powers.
Never mind that, as Justice Ketanji Brown Jackson notes, Roberts’ opinion instead radically altered the balance of powers, which (adopting Washington’s logic) will arguably feed factionalism.
It is important to note that the majority reframes the immunity question presented here as a separation of powers concern that is compelled by Article II—as if what is being asked is whether Congress can criminalize executive prerogatives. See, e.g., ante, at 6–7; see also ante, at 1– 2 (BARRETT, J., concurring in part). But that is not anywhere close to what is happening in this case. No one maintains that Congress has passed a law that specifically criminalizes the President’s use of any power that the Constitution vests exclusively in the Executive, much less that the Judiciary is being conscripted to adjudicate the propriety of such a statute. To the contrary, the indictment here invokes criminal statutes of general applicability that everyone is supposed to follow, both on and off the job. So, the real question is: Can the President, too, be held accountable for committing crimes while he is undertaking his official duties? The nature of his authority under Article II (whether conclusive and preclusive, or shared with Congress, or otherwise) is entirely beside the point.
Plus, by my read, the only separation of powers that Roberts really cares about is that between one Executive and his successor. Roberts is, in actuality, usurping the Article II authority of DOJ to prosecute crimes exclusively in the case of a former President, adopting that power to the judiciary.
Roberts’ opinion does that even while it permits the sitting President to use the trappings of DOJ against everyone but his predecessor, with personal presidential involvement. All the abuses of the Trump DOJ? The revenge prosecution of Greg Craig, Michael Sussmann, and Igor Danchenko? All cool with John Roberts. The use of DOJ resources to have an FBI informant frame Joe Biden? Still totally cool. Not revenge. Just the President doing what he’s empowered to do.
But it’s that more cherished precedent Washington set, of the transfer of power rather than kings, that Roberts has done real violence to.
Consider what happened to Blassingame — the DC Circuit opinion holding that a former President can be sued for actions taken in his role as candidate for office — in this opinion.
Blassingame was mentioned repeatedly in the argument of this case, 16 times, often when a Republican who joined Roberts’ opinion today queried John Sauer if he agreed with it.
It came up when Clarence Thomas asked whether Sauer accepted the function of a candidate to be a private act — with which he mostly agreed and then backtracked somewhat.
JUSTICE THOMAS: Mr. Sauer, in assessing the official acts of a president, do you differentiate between the president acting as president and the president acting as candidate?
MR. SAUER: Yes, we do. And we don’t dispute essentially the Blassingame discussion of that.
JUSTICE THOMAS: Okay. Now —
MR. SAUER: But, of course, that has to be done by objective determinations, not by looking at what was the purpose of what you did this, and that’s the most important point there.
It came up when Neil Gorsuch queried Sauer about it (in which case Sauer adopted former Trump White House Counsel Greg Katsas’ more narrow holding on it).
JUSTICE GORSUCH: And then the question becomes, as we’ve been exploring here today a little bit, about how to segregate private from official conduct that may or may not enjoy some immunity, and we — I’m sure we’re going to spend a lot of time exploring that. But the D.C. Circuit in Blassingame, the chief judge there, joined by the panel, expressed some views about how to segregate private conduct for which no man is above the law from official acts. Do you have any thoughts about the test that they came up with there?
MR. SAUER: Yes. We think, in the main, that test, especially if it’s understood through the lens of Judge Katsas’ separate opinion, is a very persuasive test. It would be a great source for this Court to rely on in drawing this line. And it emphasizes the breadth of that test. It talks about how actions that are, you know, plausibly connected to the president’s official duties are official acts. And it also emphasizes that if it’s a close case or it appears there’s considerations on the other side, that also should be treated as immune. Those are the — the aspects of that that we’d emphasize as potentially guiding the Court’s discretion.
Gorsuch would go on to question Dreeben about Blassingame at length.
It came up when John Kavanaugh invited Sauer to rewrite Blassingame, and Sauer largely declined.
JUSTICE KAVANAUGH: Where — where do you think the D.C. Circuit went wrong in how it determined what was official versus what’s personal?
MR. SAUER: Well, I read — I read the opinion below in this particular case as adopting a categorical view. It does not matter, is the logic of their — their opinion because there is no immunity for official acts and, therefore, you know, that’s the end of the story. I don’t really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what’s official and what isn’t official. There, we agree with most of what that opinion said.
And it came up when Sammy Alito asked John Sauer if he’d like an order saying that the President was immune unless there was no possible justification, in which case Sauer raised Blassingame, and Alito shifted from analysis of official and unofficial.
JUSTICE ALITO: But what if it were not — what if it did not involve any subjective element, it was purely objective? You would look objectively at the various relevant factors? MR. SAUER: That sounds to me a lot like Blassingame and especially viewed through the lens of Judge Katsas’ separate opinion, and that may not be different than what we’re proposing to the Court today.
JUSTICE ALITO: Well, Blassingame had to do with the difference between official conduct and private conduct, right?
MR. SAUER: That’s correct. I — I understood the Court to be asking that.
JUSTICE ALITO: No. This — this would apply — and it’s just a possibility. I don’t know whether it’s a good idea or a bad idea or whether it can be derived from the structure of the Constitution or the Vesting Clause or any other source. But this would be applied in a purely objective — on purely objective grounds when the president invokes an official power in taking the action that is at issue?
MR. SAUER: Yes, I believe — the reason I think of Blassingame is because it talks about an objective context-specific determination to winnow out what’s official and what is purely private conduct, and, again, in a — with a strong degree of deference to what — and, therefore, you know, that’s the end of the story. I don’t really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what’s official and what isn’t official. There, we agree with most of what that opinion said.
You might be justified in thinking that Blassingame would be central to today’s ruling, not least because the charged crimes are the same ones as the complaints alleged in Blassingame.
The central holding of Blassingame, however, is gone.
Blassingame appears just three times in the opinion rendered today. Roberts uses it as a limiting factor.
But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.” Blassingame v. Trump, 87
Sonia Sotomayor notes that Roberts has used it as a limiting factor, then notes he has also eliminated any analysis of motive.
In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “‘not manifestly or palpably beyond [his] authority,’” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18.
Jackson makes a similar observation.
At most, to distinguish official from unofficial conduct, the majority advises asking whether the former President’s conduct was “‘manifestly or palpably beyond [his] authority.’” Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)).
There’s not even much discussion of Trump’s role as a candidate! Roberts raises it, and then says Trump’s electioneering tweets might serve some other purpose.
There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453 (2011) (internal quotation marks omitted). But “there is not always a clear line between [the President’s] personal and official affairs.” Mazars, 591 U. S., at 868. The analysis therefore must be fact specific and may prove to be challenging.
The indictment reflects these challenges. It includes only select Tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or context. See App. 228–230, Indictment ¶104. Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication.
In ruling (unsurprisingly) that the Jeffrey Clark allegations have to be thrown out, Roberts goes further, and reads the Executive Branch interest in policing election crime to extend to making false claims about the election.
The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8)
And when entertaining Trump’s claims that his interference in state and congress’ role were just an effort to protect the integrity of the election, Roberts thumbs both the scale and the facts again, using the Take Care clause as a shield rather than the sword that Judge Karen Henderson viewed it as.
On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President’s duty to “take Care that the Laws be faithfully executed” plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3. And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Cf. Hawaii, 585 U. S., at 701. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President’s view of the public good.
Even when conceding that Trump was pressuring Mike Pence as President of the Senate, not as his Vice President, when he was threatening to have him assassinated, Roberts suggests this is a close call, because Trump has to be able to pressure the President of the Senate to get legislation passed.
The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.
At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.
It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.
Over and over again, then, Roberts has applied his new standard — whether anything might conceivably intrude on the functions of the Presidency — to immunize usurping Congress’ (and states’) role in certifying the election.
What John Roberts has done — at least preliminarily — is carve out an Executive authority so broad that in every area where the President is explicitly excluded, even in the role of candidate-for-President, the President can still act with absolute immunity.
That authorizes the President to use all the powers of the Presidency to win re-election — precisely the opposite holding of what Blassingame adopted.
In an opinion that tries to cloak his power grab with an appeal to President Washington, John Roberts has suffocated the greatest thing Washington gave the United States, the presumption that Presidential powers would cede to the power of elections.
This is the way the world ends
Not with a bang but a whimper
T.S. Eliot
Oh, this is a bang that would break the eardrums of any non-MAGA lawyer or politician.
I wonder how afraid Roberts is of what Donnie might decide to do in a fit of rage.
Roberts does seem to have forgotten that, for Trump, loyalty and appreciation go only one way.
There’s an irony re McConnell’s central role in what happened today, even though on several levels he hates it and knows it is wrong.
Maybe irony is the wrong word.
Irony is definitely the wrong word.
Irony would apply to Gym Jordan lawsuit for the Hur tapes, since it appears to me that this ruling renders the effort DOA sine Biden has immunity and has unlimited privilege to withhold tapes.
Irony is commander in chief absolute immunity, which while permitting the Nuremberg tribunal for the lesser Nazis, results in Hitler going scot free. Irony is saying one needs immunity for bold and unhesitating action. Immunity does not make a coward brave, but does embolden hubris and recklessness. One would think folks would remember their Ancient Greek, since Madison went on so long about it.
Everyone is talking about the effect that this ruling would have on the Jan 6th case. But it seems to me that an even more worrisome implication is that SCOTUS just made the threat of second presidency vastly more dangerous if Trump gets reelected. Knowing that he have this kind of absolute immunity would make Trump infinitely more dangerous.
P.S. What does presumptive immunity mean exactly, and how is it different than absolute immunity?
In theory, presumptive immunity can be rebutted. But the court set a hard standard for the rebuttal, and one they could easily pooh-pooh when the case returns to them.
The Roberts opinion seems to me dangerous in destroying the independence of DOJ. Trump appears that have successfully destroyed the norm of DOJ as independent.
Attygmgm: Add that to Trump’s plan for schedule F “reform”, and the result could be devastating.
It’s a little more than a “hard standard.” The “no dangers of intrusion on the authority” language means that they can reverse any trial court finding they choose. It’s lawless.
Exactly. And as Dr. Wheeler has written, Trump has primed Republican voters to accept this situation by convincing them that any investigation or case against him, for anything whatsoever, is illegitimate and politically motivated. Now he can add the sanction of SCOTUS to his existing justification (essentially, “everyone does it!” or “they did it first!”).
Reminds me of Comey’s role when all of this started in 2016. All the talk about protecting the DOJ independence… Ya Comey, maybe you can rethink your decisions back in 2016 if you can be honest.
The one silver lining in this terrifying times, Trump managed to expose the republicans for who they really are.
And forced them to explicitly take sides. Everything is on the open now. They cannot pretend anymore. It is on us to take advantage, is not just Trump, are the republicans that are enabling him.
By the last question I mean: what do you need to prove in order to overcome the presumption of immunity?
[Moderator’s note: You’re adding one too many m to your email address compared to your previously used address. I’ve corrected it in both your comments today; mismatches like that get caught up in auto-moderation and need manual clearance. /~Rayne]
You’re absolutely right. The Jan6 trial can at least be aired. But this pre-immunizes a lot of the fascism that Trump has planned.
Many thanks.
SCOTUS says Trump can do whatever but thankfully Republicans have the “foundational” Ten Commandments to keep him in line. Gotta set a good example for the kids.
By this ruling, it is now even more apparent how thoroughly the Republicans screwed the Republic when their Senators did not vote to convict Donald Trump during his second (!) impeachment trial.
“‘The President Is Now a King’: The Most Blistering Lines From Dissents in the Trump Immunity Case,” including this excerpt from Justice Sotomayor’s dissent:
https://www.motherjones.com/politics/2024/07/sotomayor-jackson-blistering-dissents-trump-immunity-case/
Conservatism isn’t a faction. Conservatism is the revealed truth of creation. Any and all opposition to Conservatism is driven by factions. Elimination of those factions is the only way forward for democracy.
I’m a lawyer. Lawyers swear an oath to the Constitution before being admitted to the Bar. Today the Court fundamentally betrayed the Constitution and every legal principle lawyers are sworn to uphold. This betrayal goes beyond mere disagreement about Constitutional interpretation. It guts the very concept of the people being sovereign. Calling it treason is not hyperbole. Six Justices just executed a de jure coup.
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When the cops are gleefully brutalizing antifascist protestors after Trump cheats his way to victory or just straight up seizes power, I hope we’ll all take a moment to thank Joe Biden for unreservedly supporting the police and making sure they have even more money, more guns, and more staff on hand.
Cops gleefully brutalized antifascist protestors during the Trump administration. “Can’t you just shoot them?”
“In an exclusive interview with Mother Jones, Sen. Cory Booker (D-N.J.) confirmed what many people, myself included, believe to be true: The bipartisan police reform bill fell apart because Sen. Tim Scott (R-S.C.) was resistant to sweeping changes to policing.”
https://www.motherjones.com/politics/2021/10/cory-booker-police-reform-tim-scott/
President Biden addressed as much police reform as he could by EO, given that Scott obstructed.
“The Biden Administration’s Executive Order on Policing is a Foundation to Build Upon”
https://www.aclu.org/news/criminal-law-reform/the-biden-administrations-executive-order-on-policing-is-a-foundation-to-build-upon
We have work to do at the ballot box and beyond in order to pass real reform.
An incumbent president is now unfettered with the power to control the election process, all in the name of protecting the integrity of the election. Declare ballots as fraudulently cast? A court can’t even question the president’s motives.
Good point. Well, that’s a wrap. Biden will serve another term.
I know you’re joking. But no doubt if Roberts and co. thought that Biden (as opposed to Trump) would abuse his power in the way they’ve legalized, they would’ve ruled differently.
The only good part of this would be if, when combined with Biden debate debacle, it allows Trump to feel even more emboldened to go out on a crazy fanatical limb, moving in the opposite direction from where he would go to win the as-yet undecided and persuadable and somewhat rational voters on his left who are essential to the upcoming election.
Yes, I know I am grasping at straws, just trying to find something I can hold onto in this dark time.
Convict-1 already issued his warning not to mess with anything for when he ‘wins’.
Biden could have Marines supervising the MAGA ‘poll observers’ for example.
Great article!!! Clarifies a lot of legal-speak. I do not follow though, how you found…
… in the snippet you quoted. (???)
From another of your Roberts’ quotes:
That looks to me like an implicit declaration that Trump’s ask of Raffensperger, as Roberts constructs context, was A-Ok.
If the pressure Trump placed on Raffensperger violated GA state law, Roberts’ construct is worthless to the state.
What else could that reference by Roberts refer to than the “Perfect” phone call?
That he chose to include that tells me he (they?) have already given (what they call) thought to Fanni’s charges. Who knows, maybe they’ll just send Seal Team 6 to Georgia and take care of things the old fashioned way.
And… I’m not trying to be argumentative. This decision generally has been predicted for a while. In thinking about it for months, what is obvious at least to me is that a whole lot of what the public has accepted as “the way it is” is (like what you said) is going to be “the way it was.”
Been seeing this in decision after decision from this court.
Not all federal charges related to the interstate conspiracy have been charged. Roberts et al may have been trying to head those off, not necessarily the states’ charges.
They’re going to have a really tough time claiming states’ rights for this (ex. abortion) but not for that (ex. violation of state election laws when the Constitution says the states run elections).
I hesitate to ask questions on this blog and reveal my ignorance, but in a maximally optimistic future scenario, how do we as a country go about reversing this? Would it require a constitutional amendment?
IANAL. It seems a different court could overturn it, but would that require someone with standing (a President? a victim of a President?) bringing some case and arguing that they DON’T have immunity?
First, a Democrat has to deprive Trump of office.
Then … there are options.
This court is using it’s own constitution. No matter how such an amendment could be written they will only interpret it so it fits their own view. The only solution is term limits on judiciary while also requiring 2/3 senate majority on confirmations.
You have to think Roberts neglected to read the rest of Washington’s farewell address after quote-mining.
https://press-pubs.uchicago.edu/founders/documents/v1ch18s29.html
yes, in that regard he (Roberts) is little different than Thomas and Alito,,,
I just read the full Opinion and am left with the impression that Roberts and Thomas, particularly, were thumbing their noses at the Constitution as we have accepted it for generations, as well as succumbing to the increasing description of the President as being “the most powerful man in the country, if not the world.” That phrase is a powerful drug to some people.
I also wondered if this were a retroactive way of preventing any prosecution against George W. Bush in matters relating to war crimes in Iraq, Afghanistan, etc. It’s as if Nixon was pointing the way when he stated that, “when the President does it…etc.” (I forget the exact wording.) This does not seem to be a new idea on the part of the Court or the political system as a whole, when one sees the watering down of Original Principles through Congressional “tweaking’ and Court rulings over decades. And, some of that can be blamed on poor Civic education since the early 60s, leading to ignorance of voters as to how government works. My thoughts are scattered because of the difference in reasoning by the Majority in the Decision and by the Dissenting Justices. The former lacked clarity. The latter was stark with the realistic ramifications of this dangerous Decision.
The remedy would be for Congress to act to make laws which limit the scope of the Decision, and/or a Constitutional Convention to consider “tightening up the law,” although, with the present makeup of Congress and the polarization of the Country overall might create even worse Law. [I am glad I am old and won’t be around much longer to witness the destruction of what actually created a great system of government. It served us well, for a long time, but, as with all great nations, decay sets in. History gives us plenty of examples.]
A relevant article from Harvard Law Review in 2022 describes how the present Supreme Court is gathering all power to itself, from individuals, states, administrative agencies, Congress, the Presidency, and even the lower courts.
The Imperial Supreme Court
https://harvardlawreview.org/forum/vol-136/the-imperial-supreme-court/
Article II gives the power to the President to appoint Supreme Court justices. What is there to stop Biden just appointing 20 more justices to the Court, including 2 more Chief Justices?
Nothing. But nothing will get them confirmed.
Hypothetically, as of today, the President could order troops to lay siege to the Capitol and imprison the Senators until they confirmed his picks.
Or murder Senators one by one until the remaining ones do what they are told.
I believe either option, while clearly insane, is “fine” under SCOTUS’s ruling.
So we have a president, until such date as someone as ambitious and amoral as Saddam Hussein — or Vladimir Putin — takes office. We’ve not yet become our enemies, but we’re trying.
Senate is still dems majority with Kamala as tie breaker.
But there is not much time.
Any theoretical extra justices nominated by Biden still have to be confirmed by the Senate.
The number of Justices is fixed by statute. The current limit is nine. Even Senate approval would not be enough to change this–you’d need the House, as well.
I see. I missed that. Thank you.
Is that statute definitely constitutional?
After the Citizen’s United decision of the Roberts court, I believed him to be the worst Chief Justice in all of US history, even worse than Roger Taney. Apparently that was not enough for Roberts, he now is working to destroy democracy in the US.
Tough call but I’m still going to give the edge to Taney. Robert is definitely up there, though.
I am often troubled by rampant misuse of the word: Principle(s). AFAIC none of the most commonly used dictionaries (Cambridge, Webster’s) has anything apporaching a satisfying definition. Given so much sloppy usage of the word, taken out of context I’ve never been able to find a distinction between rules/laws/notions/ideology and Principle. Dictionary defintions aren’t much help.
I’ve read legal definitions of principle in the past, maybe a little better but easily twisted into non-existent realities and contexts as Roberts does here.
Lots of really good writing on just Principle, and what constitutes Principle that is graspable by most intelligent people. Summarized I say Principle is much more fundamental than wish-lists of what idealogues that come and go use the word to justify. Its a debasement of language, IMHO.
Earlier this year I did some reading (for first time in at least a decade) of a lot of Federalist papers, and also a few collections of other respected Founder’s statements and speeches. I don’t have direct citations at my fingertips, but very similar statements by James Madison and Washington said (my words, but they’re accurate):
Whatever one chooses to use as a definition, what these 2 guys had to say about virtue comes far closer to being a guiding principle in these circumstances that what Roberts wrote. Seeing these justices try and apply that guiding principle to exonerate Trump would be one ugly, convoluted pretzel.
MAGAt Court
Don’t ever laugh as Roberts goes by
For you may be the next to cry
He’ll wrap you up in his big conceit
Bombard your head and browbeat
He’ll put you in a MAGAt box
Cheat you out of American docs
All goes well for about a week
Then democracy begins to leak
The harms crawl in
The harms consort
The harms predictable
in Roberts’ court
The ones that go in
are lean and thin
The ones that come out
are fat and stout
They cheat your eyes
they cheat your knows
They spread their lies
with a fascist hose
He’ll put you in a MAGAt box
Cheat you out of American docs
And when democracy is all gone
There’s no republic to carry on
https://www.youtube.com/watch?v=IqfxHujDrbM
“The Hearse Song Rusty Cage Piano Cover”
Way back when
“Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”
Seems to me this will make barrage of SLAP lawsuits threatened explicitly by Project 2025 and their spokespeople, and a few of top dog MAGAs that have been busy for a while recruiting and training lawyers so they’re ready to hit the ground running if Trump’s inaugurated again.
AOC plans to file article of impeachment
https://www.msn.com/en-us/news/politics/aoc-wants-to-impeach-scotus-justices-following-trump-immunity-ruling/ar-BB1pdQ4k
I think she has solid cases against Alito and Thomas.
She can file but it goes nowhere unless the House majority goes along with it. I think it would take something to scare the MAGAs about what they unleashed, perhaps Biden can do something to remind the MAGAs of the stakes.
Biden has more years of public service than the average age of an American. We can hope for a fiery denouncement, but should expect nothing more from perhaps one of the most traditional institutionalists still serving on the national stage.
Performance art. Will go nowhere in current House. But the Supreme Court just made such things a part of a program of civil disobedience. More ideas needed.
Could the near-term solution to the problem the Court has created with this opinion be for President Biden to use the powers it grants to him via his official office to issue an executive order overturning the opinion and restoring the status quo ante? I mean, I don’t think that’s the best long-term solution, but it appears the Roberts court has endangered the nation and a state of emergency could be appropriate — when the building’s on fire, you don’t argue over the quality of the water used to extinguish the blaze.
(meant as a reply to Tetman Callis 👆) Short answer – no. The President has no power to overturn a Supreme Court decision.
[Moderator’s note: please avoid using emoji as they are not searchable. Emoticons are acceptable. /~Rayne]
Well, now POTUS might be able to channel his inner Andrew Jackson and remind Roberts that he’s made his decision ‘so now let him enforce it’.
What SCOTUS does is to set the standard for all lower courts, but as we saw in Dobbs, Kennedy, etc. et al it does not preclude challenges on SCOTUS-approved precedents especially in the 5th CA. A unitary executive that Roberts created will do exactly that until he gets what he wants.
Andrew Jackson postponed the Civil War, and in the 20 years that passed, the paid labor section of the US became dominant. James Buchannon’s inaction guaranteed there would be a war/ And Roger Taney’s decision in Dred Scott added tinder to the potential fire.
Buchannon or Lincoln, those are President Biden’s options.
Let’s get out the vote as never before! He lost by 7 million votes last time; let’s make him lose by 30 Million votes! I do believe there is a majority of Americans who do NOT want him as President. I am 78 years old, going on 79 in a couple of months; but, I will work as hard as possible to see that he never serves as President ever again.
Lawfare has their group discussion up on youtube. At about 41.20, Anna Bower explains how Thomas’ (somewhat bizarre) concurring opinion gives Judge Canon a roadmap for dismissal on the Smith-was-unconstitutionally-appointed thingie.