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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?
My impression of the financial things were that it was Thomas just coming along on trips with his friend, and that this was mostly just lefty journalists looking for any means possible to discredit the court now that it's making rulings they don't like. That said, I get trying to avoid the appearance of impropriety.
I'd pin Dobbs as the thing that most hurt their reputation in the recent past, though I'm not certain of that.
That said, you certainly are right that some of the justices are not making their decisions in order to placate public opinion, but to accomplish their agenda. But has Thomas, for example, ever done otherwise? I think they're mostly just honest, if motivated.
Yeah, it's tough because reading all the ProPublica reports, it seems Thomas and Crow are like, legitimate friends. I do feel strongly about appearance of impropriety being the standard to shoot for, though, so... yeah. I sympathize with the difficulty of having to be really fucking careful about who your friends are, but at the same time I feel like yeah, they DO need to be really fucking careful who their friends are. Otherwise maybe turn down the nomination. I'd love to see some of that happen once in a while.
I mean my fundamental bias but one I'll defend is that these guys are just people. People are usually relatively honest and normally motivated. I will say that if for decades you are taking ultra-luxury trips, but in the back of your head you know if you piss them off too much they might stop, that kind of thing does tend to distort thinking just a hair. And there's no way you're taking weeks and weeks of vacations with people and you never talk politics? Ain't no way.
What I saw one article advocate for, I'd love for it to be the case, is to ask actual questions, high-quality ones that are answerable, in the confirmation hearings to try and get a better sense for some fundamental values and styles of different potential justices. Things like these (not a perfect list) that include stuff like when was the last time you changed your mind? What's a bias you struggle with? What kind of effect would you like to have on the court? Could you explain more details on why you lean originalist/textualist/etc?
I suspect the court will be fine. I would go nuclear is court-packing or something similar happened, no matter who. I strongly, strongly advocate for what the conversation should really center on: Maybe let's talk about some Constitutional Amendments to the Supreme Court process? I'm open to that. Would necessarily need to be bipartisan. In practice, I'm not super sure what it would take (if even possible) for the GOP to get on board something like that however. Maybe make some sort of general, government ethics amendment?
Why it rings hollow to me is there wasn’t the same concern over Sotomayor taking millions in advances from a publisher while not recusing on a case that they directly were involved in. That is, the complaint about Thomas seems politically motivated. The ones about Alito are just silly (and we did learn that you should find someone who loves you the way Mrs Alito loves flags).
According to Fix The Court which has a nice list of missed recusals and seems to be pretty evenhanded, this happens a fair amount, more than I'd like. An earlier case, according to details I see from them (but opinions and speculation my own), possibly was missed due to the publisher being Knopf by name at the time, which in reality was a subsidiary of Penguin who was named. Beyond that, it appears many justices simply make long sheets of specific companies, and don't always update them correctly nor properly do their due diligence in looking deeper. For example, in the more recent publisher example, Gorsuch also failed to recuse for the same reason, and Breyer accidentally recused because his list was out of date!
I feel strongly about reform but am pretty clear eyed about the recent stuff being dramatized. I thought it was in this thread, but I guess not -- the Alito stuff as I've said is garbage and that was clear pretty early on. While you could say "maybe they are picking on Thomas specifically" they have found enough unrelated and significant ethical lapses I'm convinced, and think it's pretty clear to those who have investigated, that there's an actual pattern there.
What I’m saying is if I thought most of the criticisms were actually concerned about the integrity of the court, then I wouldn’t have as much an issue. But as it is, I think the vast majority of the criticism is simply people who don’t like the court’s rulings looking for ways to undermine the court.
I see the left do this all of the time. When they controlled the court, it was sacrosanct. The moment it switches hands, we start hearing about its legitimacy. Republican attacks on the court historically were about theory of law; democrats aren’t talking about theory of law. Democrats did the same thing with Twitter and Elon. Once he unlocked a major communication platform from their grip, Elon became a far right racist. Funny how that works.
That's fine. I've observed that I'm more likely than most to be willing to examine arguments made in bad faith in spite of them being made in bad faith. Partly because I don't think bad faith is as common as popularly perceived, but also because I'm skeptical that most people can safely and accurately enough tell the difference. It's through this lens that I'm sympathetic to current court criticisms. Related: persecution complexes. Doesn't mean the persecution isn't real, but it does tend to distort perception. I genuinely believe that the right has a persecution complex far beyond anyone on the left, except for maybe Marxists.
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