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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.
Except that the blue tribe controls what legitimacy means. Once they have the court making 100% Blue decisions again, it'll be "legitimate" except for a few malcontents in the dying remains of the more radical part of Red. The bulk of Red will accept the court no matter what, because they accept the legitimacy of institutions axiomatically.
Eh, I dunno about that. There's a long history of back and forth about which party is the "defender of the Constitution" and such. They both have held that mantle at different times pretty strongly in the last even 20 years only. Sure, Democrats are playing their hand pretty strong, probably too strong, recently (junk like "democracy dies in darkness" and all that, great on paper, even true on paper, horribly mangled job in practice). Democrats cry wolf about a lot of things. But not Trump. This dude actually jokes around about suspending the Constitution which is not cool and not-so-jokingly asks about deploying troops domestically which we've only seen in living memory a few times in the 60s and once in '92 for the LA race riots. The dude doesn't even pay lip service to checks and balances and admires dictators.
We had four years of Trump. Not one little suspension of the Constitution. I remember when Bill Clinton called for the suspension of the Fourth Amendment in public housing. As for deploying troops domestically during periods of public unrest such as the Floyd riots... that's what the Insurrection Act is FOR.
Let me put it this way. Trump has, let's say, a 90% chance of not harming the Constitution or the rule of law at all. Maybe higher, because I place a high confidence in general US systemic resilience? I think I'm still allowed to be worried about that 5-10%, because to me, that's well beyond my comfortable threshold for electing a president.
Does this sound crazy? Consider this: how many presidents have suspended parts of the constitution, acted unconstitutionally in a big or blatant way, or triggered a significant constitutional crisis? Madison (war of 1812 militia and war stuff, debated), Jackson(nullification crisis AND outright defiance of SC on Indian removal), Lincoln (habeus corpus in civil war), Wilson (WW1 free speech stuff), FDR (court packing AND Japanese-American citizen internment), Nixon (Watergate and related obstruction); as well as recent examples Bush (wiretapping AND detainment stuff, debated) and Trump (possible bribery AND Jan6, heavily debated) that are worth mentioning. A few other possible violators, depending. I think a few arguments were made for Jefferson for various things, and Truman for some Korean War stuff, and some even say Reagan for Iran-Contra (defying congress outright). I left off Johnson, although he WAS impeached, because the core issue felt like it hinged on technicalities of Cabinet appointments and personality clashes. Of course, the list goes way up if you're talking about ANY unconstitutional action, judged after the fact.
So that's 6-8 presidents out of 46. 10 if you are expansive. Those that threaten the core fundamentals of the nation, that's probably just Jackson for his SC defiance and FDR for court packing (and maybe the four terms if we are being honest, though totally legal it was worrying), because although some wartime stuff is in theory worrying we can probably give a bit of a pass to that, even if it involves some core free speech stuff, due to theoretically all wars having an end date. Trump is definitely not (currently) on that core fundamental list.
So historically only a 4% rate of bigtime, core fundamental danger, though that's a really, really crude calculation where I don't yet know how I feel about it. I'm mildly afraid that Biden will consider a court-packing plan, but this probability I place at more like 3-5%. Trump gets weighted higher at 6-10%. This is subjective, thus I don't expect people to agree. However, I don't consider "not suspending the constitution" as a fair predictor of future behavior just because it's literally the default expectation. We have to look elsewhere. Could we have predicted FDR and Jackson's transgressions? FDR had a lot of sweeping changes, and a lot of them undone by the SC, with big economic pressure. I don't know how useful this is. Major planks of major plans have been knocked out for a lot of presidents, including several recent ones from both parties, no connection with major crises yet. Jackson was highly pugilistic and the classic original populist. However, this is tricky and subjective. I kind of feel like this is a good Trump comparison? It's gotta be, right? But I also think you could come up with other parallels for other presidents with Jackson, so I'm not sure. Maybe the standard is actually talking bad about the SC ahead of time instead? A lot of presidents also grouse about this. I don't think Biden himself does this as much as other Democrats. But he does sometimes.
Got distracted, we return to the original question. Why am I rating Trump higher than Biden in existential risk?
How much of that is due to rhetoric? I've actually rewritten the second half of this comment eight times (I counted), with many, many deleted sentences talking about evidence. Let no one say I can't at least try to be fair, or at least consistent. I think I've decided after this long reflection that it's actually all due to rhetoric and language. If someone makes noises about doing highly dangerous constitutional/existential stuff, am I really supposed to ignore it if most evidence points to it being bluster, though rooted in strong and (I think) genuine feeling? Biden makes noise about court packing. I actually rate this as concerning, I do try to be fair. Trump makes noise about election stuff. Both of these concern core interests. However, court packing would likely fail, whereas election denialism stuff... might succeed? IS that fair? I could possibly be nudged in either direction on Biden court packing. Is my feeling on Trump a sign of TDS? Or is it simply a case of listening to what he literally talks about all the time and treating it at face value on the off-chance it's not superficial but real?
I'm going to make that an actual question. Broadly: does the recent adage "if someone tells you who they are, believe them" hold water when it comes to presidents and what they say?
You're obviously allowed to think that, but it's a ludicrously low number. Trump had 4 years in which he did not harm the Constitution or the rule of law at all. He had policies which were adjudicated unconstitutional, and he modified them to satisfy the courts, but that's about it.
No. Even if someone were to have shown "bribery" (which they simply have not), that would not constitute "[acting] unconstitutionally in a big or blatant way", it would merely be unlawful. Nor is one's supporters rioting at the Capitol that either.
Biden, on the other hand, has his administration actually prosecuting his opposition, and there is evidence of co-ordination between his administration and New York's prosecution of his opposition. That's a threat to our system right there.
To be clear, unlike apparently many Democrats, I'm actually relatively unafraid of so-called "lawfare". Even if it turns "against" Biden. I trust the courts, at least broadly speaking, to deal in facts and weigh evidence. Still, I'm a realist. I know not all the decisions will be perfect, and not all judges are either. See for example Judge Cannon in the Florida case, which seems to me to be a very, very open-and-shut, slam dunk case, tricky procedural classified stuff notwithstanding. I don't like how she has been treating the case. I won't lose sleep over it, just be a little disappointed. This legal aspect is not something I consider to be an existential threat from Trump, even in the Democrat's worst case on this issue.
Parts of the system you can see working even now. The House investigated Biden a million times, as is their right, even if the left complained about it loudly. Guess what? They really didn't find anything at all. The best they could do was an attempted ouster of Garland, which was pretty flimsy, and the vote margins demonstrated that. Even Trump not being removed from office after impeachment I begrudgingly think is the system working. The two party system is pretty flawed but still delivers roughly expected results. I still agree with Mitt Romney's vote and speech on the issue, but if Trump had tried an even more blatant or flagrant bribery scheme than he did, he would have been removed, GOP reluctance or not. I don't love the threshold we've established, but one exists.
Still, a single term is still relative weak evidence. I already agreed about how Trump's first term is evidence for his constitution-abidingness, even though it's weak. We're talking about an inherently rare event, which is tricky from a statistics perspective. My whole thing is, the best we can do is watch the rhetoric. I don't see Biden making inflammatory claims, other than a brief flirtation with court packing, which he ended up sidestepping and burying. I do see Trump making inflammatory claims and ones that seem to violate several constitutional principles. Grains of salt are needed of course. We're not in wartime, so that helps. And I think most attempts to totally defy the Constitution would fail. I'm just explaining one aspect of my vote that I think other people share, even if they haven't thought about it in the same detail. They don't like gambling with existential risk! Saying "oh the risk is low" is not an effective counter-argument and misses the whole point of the objection.
I'm also unafraid of lawfare, because the vast, vast, vast majority of Democrat's have not committed anything close to Trump, and even the most wacky Trump +80 rural county in the middle of Texas or Oklahoma actually will have issues finding 12 jurors (that any Biden/Hillary/Obama/etc. defense team will basically six of) to convict random Democratic officials of whatever crimes people want to charge them with.
Like, there are actual laws about classifield documents or falsifying business records, regardless of your belief of Trump's guilt or innocence. There's not the laws on the books for the random stuff the Right is upset over - and hey, as with good ole' Gold Bars Menendez, if there are actually corrupt Democrat's so be it - as a left-wing social democrat, the more corrupt ones are usually more moderate. Menendez is being replaced with a much more progressive nice Asian-American 41 year old who will be in that seat for the next 30 years.
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Thatt's not just subjective, it's so subjective that your conclusion entirely depends on the subjective part. I mean, I could say "Biden has a 5-10% chance of cutting off aid to Sarael" or "Biden has a 5-10% chance of nationalizing Twitter" based on nothing whatsoever, and the percentage is small enough that it would be hard to argue exact numbers.
It's harder and we have to be very honest and transparent about our assumptions, but not impossible. There are a still some obvious guardrails to rare claims. For example, I flat out do not think anyone could make even a half-compelling case for Biden nationalizing Twitter. Few things happen to our complete surprise, when it comes to policy. Biden has talked about court reform before, so it entered the realm of plausibility. Zero people with any power have made nationalizing Twitter arguments, so it's not. Kind of Overton window type stuff, here. Trump has talked about deploying the military in controversial circumstances at least five times, so it enters the realm of discussion and analysis.
Then pick a different example. There has to be some unlikely scenario. Let's go with your original court packing one.
You care about unlikely scenarios that happen at the 5-10% level, yet you don't care about unlikely scenarios that happen at the 3-5% level. Even assuming I fix the numbers so it isn't exactly at 5 (which is covered by both ranges), that's making a really, really, fine distinction. I simply would not be able to estimate such things with enough precision to say "well, maybe it's as high as 3-5%. but it couldn't possibly be as high as 5-10%". And I highly doubt you could really make such estimates either. It's not only subjective, but it can't be anything else; you're pulling numbers out of your hat.
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