Penumbras, Presidential Immunity, and Pure Politics at the Supreme Court - Eric Segall - Dorf on Law

Penumbras, Presidential Immunity, and Pure Politics at the Supreme Court

By Eric Segall - Dorf on Law  blog

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent. - Sonia Sotomayor dissenting in Trump v. United States  

There is not a syllable in the text of the United States Constitution supporting a presumptive privilege of presidential communications, an absolute immunity barring all civil suits against the President, or any immunity against criminal prosecution after leaving office. In fact, the Impeachment Clause specifically anticipates criminal prosecutions against former Presidents:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

And even more problematically, if that is possible, the Constitution specifically provides a limited immunity for members of Congress in certain circumstances, so we know that the Framers understood how to give government officials immunity when they wanted to do so. For the Court to create a common law immunity for the President for his criminal acts with serious limits on how the prosecution can prove the President committed unofficial acts is penumbras and emanations on steroids.

Conservative legal academics, judges, and politicians for decades accused the Warren and Burger Courts of not taking text seriously and engaging in result-oriented jurisprudence. Griswold and Roe were exhibits 1 and 2 in that on-going commentary. But it turns out, as it almost always does within constitutional law, that the strong objections to the reasoning and processes of Griswold and Roe had nothing to do with process and reasoning and everything to do with politics and ideology. Conservatives have now taken penumbras and emanations to a new level of aggressive judicial review across a broad spectrum of constitutional litigation. 

How John Roberts Shaped Trump's Winning Streak - NY Times

 

Commentary on the New York Times article 

By Michael Waldman - The Brennan Center - NYU

Last spring, Justice Samuel Alito had drafted an opinion dropping federal charges against many of the January 6 insurrectionists who violently stormed the Capitol. The ruling in Fischer v. United States had not yet been released. Then the New York Times published a startling story: Alito himself had flown the flag of insurrection at his home. (He briefly blamed it on his wife: “She is fond of flying flags.”) Days later, it was reported that he had flown such flags at his vacation home as well.

Awkward! Grounds for recusal? Time to rethink the ruling? Nah. Instead, Chief Justice John Roberts quietly took Alito’s embarrassing name off the opinion and slipped his own name onto it instead.

That is just one of the gobsmacking revelations from a story by Jodi Kantor and Adam Liptak that appeared in the New York Times this weekend. The lurid news of the day quickly overwhelmed it — the gunman arrested outside Donald Trump’s golf course, the continued smear campaign by former President Trump and Sen. JD Vance against the Haitian immigrant community in a small city in Ohio, and more.

But we must not let these revelations fade from view. They paint a damning and indelible picture of how John Roberts, for all his vaunted “institutionalism” and piety about calling “balls and strikes,” steered the Court to shield Trump from accountability for his misdeeds.

Call me naïve. At the beginning of this year, I thought I had few illusions about the Court. I had just published a harshly critical book, The Supermajority. But I felt confident in asserting that the Court was a conservative Court, a Federalist Society Court, even a Republican Court — but not a MAGA Court. It had not yet shown an appetite for excusing Trump from the reach of the law.

So I, along with most legal observers, assumed that the justices would let Trump’s trial proceed. I thought there was a good chance it would be unanimous, that Roberts would work behind the scenes to ensure that the Court spoke with one voice on major issues of presidential power and constitutional law. That’s what other chief justices did, most notably Warren Burger in United States v. Nixon, the Watergate tapes case and the closest analogue to the Trump trial ruling.

After all, we all thought, Trump v. United States was legally easy. Indeed, the possibility of criminal charges was the stated reason why Republican senators did not vote to convict him of the January 6 charges in Trump’s second impeachment trial.

Many of us, too, sensed there was a deal afoot — a unanimous ruling that Trump could not be thrown off the ballot by one state under the 14th Amendment and a principled ruling on the criminal trial.

Behind the velvet curtain of the Court, though, there was no deal. Roberts wrote a memo in February — before the Court had even announced that it would hear Trump’s appeal — declaring that the Court would give the former president a huge win. “I think it likely that we will view the separation of powers analysis differently” from the appeals court, he wrote. As Kantor and Liptak summarized, “In other words: grant Mr. Trump greater protection from prosecution.”

They detailed myriad other ways that Roberts steered rulings Trump’s way. He froze out Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. The ruling was sloppy and immunized vast areas of potential presidential wrongdoing. The Times noted that NYU Law professor Trevor Morrison had discovered that Roberts selectively edited a quote from a key earlier ruling to help Trump.

The resulting ruling tells future presidents that they can break the law, plainly and flagrantly. As long as they conspire with other government officials, it will be effectively immunized. (Order your White House counsel to pay hush money, as Richard Nixon did, not your campaign manager, and you’ll be off the hook.)

The opinion has widely and correctly been scorned as one of the worst in American history — a rip in the constitutional fabric. The Times’s tick-tock makes clear that this was not a baffling anomaly. Rather, it is the biggest, most visible, and perhaps most consequential in a series of actions taken by a corrupted Court. It follows Citizens United, Shelby County, and other rulings that systematically undid key democratic protections.

Throughout American history, overreach by the Supreme Court has provoked a response. Dred Scott did in the 1850s — it helped lead to a civil war. Reactionary rulings such as Lochner did in the early 20th century. Trump v. United States should join with the Dobbs abortion rights ruling to spur a similar backlash today.

We’ve argued for an 18-year term limit for Supreme Court justices, because nobody should have too much public power for too long. And we’ve urged a binding code of ethics, which would have forced Justices Alito and Clarence Thomas to step out of these key cases. These reforms are widely popular. Most recently, a Fox News poll this summer found that 78 percent support term limits.

The Court is a broken institution. It’s time to fix it. The latest revelations remind us that otherwise, the fix is in

Catholics among key backers of SCOTUS ruling that threatens environmental rules | National Catholic Reporter

In United States Sugar Corp. v. EPA a United States Court of Appeals for the District of Columbia unanimously gutted an EPA rule governing pollution from boilers.  As directed by the the Supreme Court in Loper Bright the panel showed no "Chevron" deference to the Environmental Protection Agency.

Catholics among key backers of SCOTUS ruling that threatens environmental rules | National Catholic Reporter

By Kate Collins Scott

The Imperial Judiciary | Commonweal Magazine

The Imperial Judiciary | Commonweal Magazine

ccording to our Constitution, Congress makes the law, the president enforces the law, and judges interpret the law. But in the United States today, administrative agencies run the law. Legal scholar Susan Dudley has done the calculations: she points out that the Code of Federal Regulations, largely drafted by these agencies, consumes more than 185,000 pages. The regulations are more than four times as long as the U.S. legal code upon which they are based. Taken together, these regulations reflect the extensive reach of what critics call the “administrative state.”

We have all heard of the Food and Drug Administration, Homeland Security, and the Securities and Exchange Commission. But there are more than four hundred other federal agencies running nearly every aspect of modern life from A to Z—or at least A to W. The AbilityOne Commission helps people with disabilities find federal jobs, while the Woodrow Wilson International Center for Scholars conducts nonpartisan research to inform policymakers. In between, we have the Civil Rights Division of the Department of Justice, the Environmental Protection Agency, and the Social Security Administration. 

Do these federal agencies have too much power? The conservative legal movement, spearheaded by the Federalist Society, has long believed that they do. Now, with a firm six-three majority on the Supreme Court, conservatives are in a position to act on that belief. At the end of the 2023–2024 term, the Court issued four opinions that significantly impeded the power of federal agencies: Loper Bright Enterprises v. Raimondo, SEC v. Jarkesy, Corner Post, Inc. v. Board of Governors of the Federal Reserve System, and Ohio v. EPA. 

Anticipating A New Modern Skidmore Standard by Kristin E. Hickman :: SSRN

The NRDC v. Chevron doctrine directed courts to give expert agencies the room to enforce their authorizing laws even where the language of the enabling law was unclear.

In Loper Bright v. Raimondo the Supreme Court claimed that territory for itself.  

But as Adrian Vermeule - a conservative defender of the administrative state - has observed Chief Justice John Roberts has reserved some room for deference to agency judgments.  Now Kristin Hickman develops a similar argument. - GWC

Anticipating A New Modern Skidmore Standard by Kristin E. Hickman :: SSRN

Anticipating A New Modern Skidmore Standard

Minnesota Legal Studies Research Paper No. 24-37

Duke Law Journal Online (forthcoming 2025)

17 PagesPosted: 3 Sep 2024

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Date Written: August 29, 2024

Abstract

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference but blessed giving agency interpretations "respect" or "weight" during judicial review under the Skidmore standard. Yet, the Court offered only a brief survey in Loper Bright regarding Skidmore as a doctrine, with little guidance regarding what judicial review under Skidmore ought to look like. The Court might not have felt the need to elaborate, as Skidmore review has been around in one form or another for eighty years. Yet, Skidmore is a more complicated doctrine than many people realize. An extensive Skidmore jurisprudence exists, with nuances that do not entirely square with some of the assumptions and reasoning in Loper Bright. The purpose of this Essay is to explore the world of Skidmore review of agency statutory interpretations and to anticipate some of the questions about Skidmore that will inevitably arise as courts apply it in future cases.

We Are All New Yorkers Now - 9/11 twenty three years ago

 I drafted this editorial for New Jersey Lawyer, the State Bar Association Weekly shortly after the twin towers fell,

New Jersey Lawyer Weekly

September 24, 2001

10 NJL 1814

Editorial

We Are All New Yorkers Now

At what point shall we expect the approach of danger?  By what means shall we fortify against it?  Shall we expect some transatlantic military giant to step the Ocean and crush us at a blow?  Never!  All the armies of Europe, Asia and America combined, with all the treasure of the earth (our own excepted) in their military chest, with a Bonaparte for a commander, could not by force take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.

- Abraham Lincoln (1838)

At these points now do we expect the approach of danger:  when a tourist visa is granted, when a man named Mohammed boards a plane, when a flight takes off from Newark bound for San Francisco, when we enter the elevator and push the button for the 44th floor, when your train stops in the tunnel, when the cell phone rings.

On The Day After, New Yorkers woke to a silent city.  Dawn  normally brings traffic helicopters and the background hum from the highways.  On The Day After, New York was patrolled by military helicopters.  An aircraft carrier was posted off the white sand beaches of Jones Beach State Park.  “Tasked to provide air defense for New York”, said the NORAD commander.  Air Defense?  For New York?  At the gateways to New York Harbor - the Throgs Neck, George Washington, and Verrazano bridges Coast Guard  cutters on picket duty barred civilian traffic.  No fuel, no stone, no freight, no fishermen’s skiffs could pass.   No cars entered Manhattan.  Traffic at mid-day was lighter than Sunday morning 7 AM.

The glistening symbol of the City is gone.  A thick plume of smoke rose for days, marking the spot where  thousands of the fallen towers’ workers were buried.  With each wind shift another boro felt the sting of the acrid smoke.  A day of mourning stretched into weeks still without end.  The burials that may never come still lie dreadfully before us. 

First came the offers of blood for the wounded - who never got to the hospital.  Then came the firefighters, EMT’s, and construction workers from Ohio, from Tennessee, from New Jersey and Massachusetts to clear the rubble and honor the dead.  Soon we saw  flags fluttering from car antennas and hung from balconies and fences.

They came because New Yorkers were killed by planes filled with hostages bound from Boston for LA, because the captors incinerated other Americans along with their unmourned selves as American Airlines Flight 77 slammed into the Pentagon.  They came for those who struggled with the attackers and crashed in a field in Somerset, Pennsylvania.  They came because the distinction between combatants and non-combatants has been erased.   We are all New Yorkers now because we are all Americans, and because we are all combatants now - and do not know the face of the enemy.

Tushnet on Gienapp Against Some Common Versions of Constitutional Originalism: Balkinization

Balkinization: Against Some Common Versions of Constitutional Originalism: A Comment on Jonathan Gienapp

Against Some Common Versions of Constitutional Originalism: A Comment on Jonathan Gienapp

By Mark Tushnet (Harvard Law) 

Contemporary originalism has two components: a historical component describing the original public meaning/understanding of specific constitutional terms, and a jurisprudential component explaining why the material in the descriptive component has authority over us today. 

Suppose we take the first component as an effort to identify the meaning(s) given specific constitutional terms by actual white men in the late 1780s. Jonathan Gienapp shows in “Against Constitutional Originalism: A Historical Critique” that many self-designated originalist inquiries simply can’t identify those meanings. Working in the tradition of Quentin Skinner, Gienapp shows that contemporary originalist inquiries don’t attempt to describe the larger conceptual universe, including the concepts of a constitution and its fixity and law itself, within which the specific constitutional terms are located. But, he shows, those terms took on their public meaning only with reference to that larger universe. And, even more, Gienapp shows that wide disagreement existed about what the larger concepts meant. It would be miraculous, though not I suppose impossible, were the public meanings of specific terms to be widely agreed upon when placed in all the available conceptual universes of larger concepts. 

All that is fine, and as someone skeptical of originalism’s claims I’m naturally sympathetic to Gienapp’s critique. There’s another way to understand contemporary originalism, though, which Gienapp addresses but doesn’t fully confront because the self-described originalists who offer it allow him to criticize them by saying things that make it seems as if they were close intellectual relatives of other originalists, which allows Gienapp to subject them to the criticisms he levels at their relatives.

Start with the accurate observation that the actual practice of most originalists isn’t well suited to finding out what actual white men understood constitutional terms to mean, for the reasons Gienapp gives. (I was struck by the extent to which Gienapp uses the word “actual”—properly so—in his exposition.) One might infer from that observation that these originalists aren’t trying to find out what actual white men understood the terms to mean.

What might they be trying to do? Well, flip things around: Let’s say that these originalists are defining “original public meaning/understanding” to be “the material that our methods of inquiry produce.” My personal view is that the Baude-Sachs approach to which Gienapp devotes a chapter is a not terribly well articulated version of this proposition.***

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Supreme People's Court Monitor: New SPC Database

https://supremepeoplescourtmonitor.com/2024/09/04/supreme-peoples-courts-new-court-answers-platform/