The rhetoric of judicial impartiality, of non-partisanship, of separation of powers dominates the language of judges - and of lawyers and acolytes in the press and halls of power. It is rarely acknowledged that the attractions of power drive judges at least as much as they do elected politicians and the administrative agencies so often disparaged as bureaucracies.
The rhetorical strategy of judges and the lawyers who work in their ambit buries that fact in the language of non-partisanship, rule of law, separation of powers and constitutionalism. So the recent rulings of the Supreme Court in the Trump tax record cases Trump v. Vance, District Attorney and Trump v. Mazars and Oversight Committee were treated as victories for rule of law over the disgraced now former President. Some, like Vox's Ian Millhiser, saw the decisions as wins for Trump who would not suffer the embarrassment of pre-election disclosure of his dubious tax returns.
The strings attached to the decisions have to this day prevented disclosure of the former President's shady finances. That was accomplished by the strings attached by the Supreme Court in both Trump v. Vance and Trump v. Mazars- the decision regarding subpoenas by three congressional committees. Despite the high rhetoric none was a clean win for disclosure. Trump's financial records remain in his accountants hands.
Beneath Chief Justice John Roberts exalted language and judicial Olympianism lies diminution of both President and legislators as competitors for power, a venality in which judges take no part. Roberts warns that legislators may seek to tie down the President like Gulliver by the Lilliputians:
The interbranch conflict here does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. The President is the only person who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs. “The interest of the man” is often “connected with the constitutional rights of the place.” The Federalist No. 51, at 349. Given the close connection between the Office of the President and its occupant, congressional demands for the President’s papers can implicate the relationship between the branches regardless whether those papers are personal or official. Either way, a demand may aim to harass the President or render him “complaisan[t] to the humors of the Legislature.” [emph. added -gwc]
Chief Justice Roberts's Opinion of the Court ends with a dense three page litany of concerns for courts to scrutinize rather than complaisantly allow the elected representatives of the people to decide what they need from Donald Trump's financial records. The Lilliputian legislators will have to dunk through judicial hoops before they can obtain the information they seek for legislative purposes.
My skepticism about this judicial arrogation of power to vet the elected legislators has been confined to blog posts and discussion questions for my Remedies students. So I was delighted today to see that Georgetown's Josh Chafetz has gone the full length of the court to compare the courts' actions in Watergate (reserving the high ground for judges while stalling the legislators) with those in the Trump cases where the Supreme Court has raised high the mugs of judicial mead while withholding the performance of their mandates.