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Since tomorrow is the last (so far) scheduled day for releasing opinions by the Supreme Court of the United States I wanted to take some time to contrast the court's treatment of a pair of cases this term. These cases are Trump v. Anderson and Trump v. United States. The former case is the case out of Colorado about Trump's ballot eligibility. The latter case is the case out of the DC Circuit concerning Trump's claim to presidential immunity for his actions on Jan 6th 2021. I can't compare the reasoning in the opinions of the two cases (we still don't have a decision in the immunity one) but one thing I, and other court watchers, think is suggestive is the timeline of each of these cases. I link to SCOTUSBlog above because they provide a convenient timeline that I'll reproduce here.
In the case of Anderson the petition for cert was filed on January 3rd and granted on January 5th. Oral argument was scheduled for February 8th and the decision was issued March 4th. That's 61 days from petition for cert to decision, which is incredibly quick by SCOTUS standards. The nature of the case makes this understandable. After all, it's a question about whether a major party's chosen candidate can be on the ballot in one (and perhaps many) states. The decision was also unanimous which likely goes some way to explaining the short turn around from oral argument to a decision.
In the case of United States the petition for cert was filed on February 12th and granted on February 28th. Oral argument was scheduled for April 25th and we still do not have a decision yet. Note that just the time from granting cert to oral argument is almost as long (57 days) as the entirety of Anderson, from cert to decision. This also ignores the fact that the special counsel filed a motion for cert before judgment all the way back on December 11th 2023, which SCOTUS declined. This decision is also strange. Is there any decision the District of Columbia Court of Appeals could have issued that SCOTUS would not have granted cert on? This effectively added three months to the case (the appeals court issued its decision on February 6th) for what seems like little reason. There is some expectation that this case should take longer because there is likely much more dissent among the justices as to the correct outcome compared to Anderson, but this fact does not explain actions like the long wait until oral argument or declining the petition for cert before judgement. One would think the criminal trial of an ex-president who is also a candidate would be a pressing matter but the justices don't seem to think so.
I am not the first court watcher to note that that SCOTUS seems to move quickly or slowly depending on which one seems to operate more to Trump's benefit. Nearing the end of the term and with no decision yet in the immunity case makes me take a bit more conspiratorial perspective on the whole thing though. As I mentioned above tomorrow is the last scheduled day for releasing opinions and they still have opinions outstanding in 18 cases argued this term. They have been issuing opinions at a rate of 3-4 per scheduled opinion day this term so dropping 18 of them tomorrow seems unlikely. The most likely outcome is they schedule more opinion days next week and possibly the week after but it's possible they don't issue a decision in the Trump immunity case this term. There is a rather famous case where SCOTUS did not issue an opinion in the term it was argued. Instead releasing the opinion the next term, almost a full year after it was first argued.
The conspiracy angle on this is that SCOTUS doesn't issue a decision in United States v. Trump this term, instead waiting until after the November election. This ensures no action in Trump's criminal trial before the election. It also means some control over the most direct beneficiary of their decision. Perhaps if Trump wins in November we get a sweeping ruling immunizing large swatches of conduct. Perhaps if Biden wins we get a much narrower ruling immunizing a very small sphere of conduct.
I think the Justices are smart enough to understand that their authority is a product of social consensus, not anything innately derivative of their position. They understand that since Conservatives approached a solid majority on the Court Blue Tribe has pivoted to attacking the court's foundational social consensus directly with calls for court packing, smearing of justices and calls for their impeachment, and so on. They appear to be attempting to balance exercise of their power with maintenance of that power. I'm skeptical that such a balance is possible, but they've certainly pushed harder toward exercise than I expected, so I imagine we'll see.
I still do not expect the Court's foundations to survive long-term; there is no reason for Reds to continue investing faith in them if they cannot deliver, and there is no way for them to deliver without Blues killing the court. This realization undermines the social consensus foundation from the Red side, and we converge on both sides admitting more or less openly that the Court is only legitimate when it delivers their specific preferred outcomes, which is isomorphic to the court having no legitimacy at all.
The entire point of a Supreme Court is to settle tribal conflict. The court can't reliably perform that purpose now, and its ability will only further diminish over time.
There's a little bit of smearing, but I happen to think (and it seems to some extent you agree) that a fair amount of it is self-inflicted. I trace unhappiness with the court back to perhaps the original sin, Citizen's United, which to me seemed like a needless own-goal pretty much everyone disliked. Which is remarkable, because normally you'd consider Bush v Gore to be the big source of unhappiness, but the Democrats seem to have took that one in stride. How different it looks now.
In terms of scandal, the Kavanaugh hearings weren't that much worse than Thomas'. The nomination drama behind Garland and Gorsuch was a bit dirty, but nothing that got me quite as enraged as some people on the left. However, financial scandals were just a matter of time to come to light, like the -- I went back and counted, there are at least eight billionaires -- who have some degree of suspicious links to Supreme Court members. And don't get me started on the "we don't really need an ethics code". Uh, yes, you kinda do. This is a very severe challenge to legitimacy. And back to jurisprudence, there wasn't necessarily a strong reason to overturn Roe, Hodges was broadly popular but certainly a major event, and as a Supreme Court you do have a certain amount of political capital and around that point they really should have gotten the memo that they were stretching it to breaking. Rather than wait it out a little longer, they are charging ahead with things like the looming, presumed causer of chaos: Chevron doctrine revisited. On top of the Trump things, of course. Not intervening in the Florida case the judge there is clearly sandbagging was a big deal to me personally but I don't think that will echo much farther.
Yes, a few are aware of the legacy aspect. Roberts certainly is. However, I get the sense that Alito and Thomas are a bit "damn the torpedoes" right now. Barrett might be having second thoughts about things. It's harder for me to get a bead on Gorsuch and Kavanaugh. I think it's also Kagan who has been a little abnormally vocal out of court as well?
It only seems like that now. The wailing and gnashing of teeth felt much like the 2016 election, and for an equally long time.
Virtually any (consistent) legal scholar will tell you that the original Roe decision was a major stretch. Yes, everyone was surprised it was overturned because public support for abortions is so high, but to say there's no "strong reason" isn't true. We're talking about the court's power being derived from social consensus - part of that, in turn, is derived from consistency and adherence to reasonable legal doctrine. They spent political capital to pay down what was essentially legal technical debt.
I agree with your stance on ethics codes and these free trips etc. For the most part. I don't see a strong enough connection between these conflicts of interest and results, and I've wined and dined enough executives who don't end up paying me for years to know that it takes two to tango when it comes to corruption. I'm not super well-informed here actually, but I also think that the standards for judicial asceticism seem to be a bit different depending on what side of the ideological divide someone falls on.
Notable that much gnashing was indeed had, but Kerry himself did not talk about it very often on the campaign trail, and "true winner" rhetoric was mostly confined to the fringes and/or typical media hyperbolizing. While "true winner" rhetoric is still mostly confined to GOP fringes today, (and hyperbolized in a different direction by the media) Trump himself is one of the most extreme proponents, despite the clear (and VERY inconsistent) logical gaps. That's worth mentioning.
I'm a compromise-first kind of guy, and when it comes to all the massive unknowns and ethical issues when it comes to fetuses and personhood, splitting the difference and saying "well too early is obviously more fine, and too late is obviously less fine, and in the middle these clash and it's super subjective, so let's just cover the basics and let the states do the fine details" is a fairly intuitive approach. It leaves people only mildly mad, and plenty distracted by the middle-fights, which means it only becomes partially an existential battle of core values/principles. Very practical, since personhood is hella NOT defined for us. Yes, in principle, it really should be a states thing because states get the non-specified situations most of the time in those cases. I merely point out that states already had a big say in the process, so to upend that and go "all right, we murdered the referee, go to town" seemed to me just a little... irresponsible.
ninja edit: minor wording changes in first paragraph
This should be the role of Congress however. To elevate this to the role of a Constitutional right, it needs some grounding in the text itself. It is not the job of the Constitution or the Supreme Court to mandate common-sense compromises across controversial policy decisions. That path only ends with the Court as a superlegislature and Congress relegated to the role of implementing their edicts.
Incorrect. It's not a specifically listed Constitutional right, but the Constitution also specifically says that other rights exist that they didn't mention. Please look into the ninth amendment, which was put in place to counter exactly the argument you are advancing. "Elevation" of a right, as you phrase it, the text says is explicitly not required in order for the right to be legitimate or exist as a right. Life is one of those things, where it's clearly a natural right (not to have people murder you), but abortion provides a tricky question in that you have a collision of two seemingly intuitive rights, when you have considerations about the mother as well in play.
And in fact a lot of these rights are specifically left to the states to sort out. Congress, eh, maybe? Personally I think no. The 10th has slightly different language, but seems to hint at this being the state's job specifically. A counterbalance, of course being equal protection stuff (14th), which traditionally is used instead because it's easier for a judge to talk about and more specific, and sometimes allows for federal action. There's further discussion on that issue, it's been a little while for me, but the general thrust of everything I've just said is well-grounded. So even though the ideal scenario, from a textual and legal perspective, is for the states to sort it out, it's also totally within the general realm of the Supreme Court's role to handle, and courts in general, though the last 100 years of history has been a bit uneven in that regard. Unenumerated rights are definitely a thing, so even if it's not totally clear who should be taking up the burden of reasoning through them, and I sympathize with your desire to leave it entirely to legislative efforts, it's also relatively okay for courts to do this, even if they are reluctant to.
Anyways, Dobbs does grapple with some of these issues. However, it did not necessarily need to. While Dobbs is a more correct, more firm foundation, I think on balance the practical and intuitive stability offered by Roe outweighed this. "Don't let perfect be the enemy of the good" type of reasoning.
Are there any examples of a court reading a right to exist from the ninth amendment? Not that I disagree in principle, but every time I've mentioned it in the past, people more knowledgeable than I have observed that it's never actually cited in practice. IMO this means that the Anti-Federalists were right: All the rights we didn't enumerate basically don't exist.
If I recall correctly, there’s a decent history of “baby ninths” that certain state constitutions will enumerate, and this occasionally bubbles up beyond state courts, but in practice it either stays on a state level, or when it reaches a federal level these types of questions are slightly better suited to the 14th amendment. It’s not that the 9th is irrelevant, it’s just often the more difficult path to legally argue and decide, so even when it’s relevant it’s rarely used directly. I’d say that we certainly have specified other rights over the years, but the worry about only enumerating some rights, putting them on a pedestal, definitely seems to have been born out.
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