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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?
Yeah, I don't imagine any concessions from Republicans unless forced to it. They've finally managed to get a hold of the court, after nearly a century of leftist control, and now, all of a sudden, it's everyone's talking about how the justices (but only the conservative ones) are corrupt, and how the court's extreme and biased (never mind all the different splits), and that the court needs to be reformed. There's something of a double standard. (And I do genuinely think that the conservative justices are less likely to make decisions from their political views, because they have more of a judicial philosophy of the senses of the text already being set in stone, not just what they want it to be.)
Regarding propriety and trips and so forth: I'm kind of torn over how seriously this should be taken. It's obviously politically motivated and going looking to do harm to the justices that they hate, and I'd be very surprised if there were anything nefarious going on. I'd certainly not expect him to be influenced by money; he seems to always be ruling for his own, radical in its lack of regard for precedent, vision of what the constitution said, often alone. I certainly imagine he talks politics with Crowe, but I'd be surprised if that affected his jurisprudence, as he doesn't just rule according to whatever suits current Republican preferences. And I don't know that I think it's all that good of an idea to reward bad action from the left like that, when I'm pretty sure that it wouldn't have affected anything. I'm curious how general the recent lesson is about other figures on the right, that you can ignore cancellation now, so long as you have a conservative base, and you don't treat the problems as serious just because your opponents treat them as serious. That is, I don't know if treating them as real would simply serve to undermine tte court's credibility by there being a consensus that something is wrong. At the same time, it would genuinely be better if there wasn't this that could be used to attack them.
I also like the questions, but I don't know how well they would be applied in practice. I anticipate that those in Congress would use them in order to probe for weaknesses to jump on, and so the judicial nominees would try to answer in ways that said the least that they could be attacked for, instead of seeking to be the most revealing.
For the reasons above I'd be hesitant to go along with a push to constitutionally reform the court—capitulating would give credence to the complaints and make people more likely to think that the court is currently bad, when, in my view, it's the best court we've had in a long while. If it would genuinely make it hard to complain about the court, I'd be for it, but I don't expect that, and would anticipate the opposite. I'd also worry that something like term limits would serve to further politicize the court, by enshrining in law something intended to balance the court in a partisan manner, instead of just assuming that everyone has an obligation to be fair interpreters.
Something of a double standard, maybe, but not all the way. Right-wing people for years have complained about the Court doing too much that is legislation-adjacent, doing outright activism, or imposing liberal social values, and those arguments were accompanied by arguments about maybe not corruption as explicitly, but certainly ideological capture and bias (claims that all the liberal colleges are brainwashing law students, and I think there were complaints about lifelong appointments too). We have conveniently forgotten these argument simply because they haven't happened as loudly recently, but I do remember them! They probably aren't exactly equal to current complaints.
I like your comment and the thoughtfulness there. It's possible my dream of avoiding even the appearance of impropriety is unrealistic, but I don't think so. Ideally, court reform conversations would be actual conversations, where we can talk about exactly this sort of thing like "are term limits even going to be helpful, or would they backfire?" This can cause us to rationally examine what parts of the SC do and don't work. We might find some parts actually DO work better than the public thinks, in the process. In other words, I think opening reform as a valid discussion would result in more light than heat. There's already plenty of heat and I think legitimizing the discussion might be a good release valve. Related: somewhat unusually, I don't love the idea of term limits for Congresspeople, I think it would only worsen the revolving door, and ignores how lawmakers also gain positive experience and specializations over time. Monetary reform for campaigns and politics generally might be a better Amendment candidate. Or simply pushing for better stock divestment, etc.
The idea behind the questions is that the current questioning process is relatively effective about determining left-right axis location, but not very effective in determining the other axes. As shown in some of the discussions here, many justices form their own brands, and there's stuff like the 3-3-3 split. Maybe better questions can allow the Senate to be more predictive in locating a nominee's position on other axes besides the simple and often ill-suited ideological one.
Allow me to take back the concessions I made on Thomas.
Fix the Court gives me the vibe of a one or two person outfit with strong personal views. I think they were and are an okay starting point for tracking recusals more broadly, which was my reference. I don't think I ever used them as a source, and probably would not use them as a source, for more of the in detail financial reporting about gifts. ProPublica is a stronger team and I think they are doing good work that's fairly evenhanded. They usually state what they know and approximately how certain they are (e.g. they will say if they looked at direct proof, it's hearsay, they found corroboration of trip, etc.) I've read almost all of their stuff all the way through, and a few counterclaims all the way through as well. Now don't get me wrong, it's not like they are saints without an agenda. But I feel they typically adhere to decently good journalistic standards, near as I can tell.
IMO, the link provided does a guilt by association trick, combined with a strawman. It talks about FTC almost the entire article, when they aren't really the experts nor the original source for most of the scandal claims. In fact I expect FTC to have errors. ProPublica less so. What it says specifically about ProPublica, a drive-by broadside right at the end:
I happen to know exactly what they are talking about in the second article. The article cited refers readers to some of the earlier reporting and assumes readers read those. The original reporting that first broke the trips went into extreme detail about exactly what the rules and laws were about trips (which often differed) and the ethical debate behind them. I think they thought, and I partially agree, that re-treading the same ground in an article framed explicitly as an update to a previous story was less necessary. The update article cited is only like two pages. The original investigation was something more like 20 pages. Obviously the original can go into more detail. And in the original articles, you can clearly see that they advance the (substantive!) argument that rules allowing transportation to not be disclosed are not only something that seems unethical to the average person, but furthermore, cruises and yacht trips are not only transportation, they are also lodging. Again, I refer you to my argument that we want to hold SC justices to a "appearance of impropriety" higher standard, which is not just my projection or wish, it's the explicit policy goal of the Supreme Court ITSELF. Why would it be bad to hold them to their own moral standard?
The inclusion of a single error also deliberately ignores quite a few cases where, as PP mentions, they actually did find legitimate issues that various Justices later fixed. A single error on a single trip does not discredit the reporting. Most of their reporting focused on a few other examples where more info was available. For example, the numerous luxury retreats. Or the New Zealand yacht trip that did happen, and wasn't disclosed, and we know for a fact this happened because, among other evidence, we have a photo of Thomas' handwritten thank you in a book he gave to a yacht worker mentioning the trip. And finally, a smear is not a smear if... it's true. Their main point is that there is no enforcement mechanism for ethics rules, that at least some justices are skirting common-sense disclosures due to rule technicalities, and the fact that we can only find out about these concerning things via extensive and laborious investigation is, yes, concerning for everyone!
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You're right that there were complaints both ways about judicial activism. I happen to think the left does more of it, and is more openly motivated by whatever they want to be true, but fair enough.
I think more policy conversations in general would be good. But how would you propose they happen? I think, perhaps unusually in our history, though I'm not sure about that, a lot of politics is governed by the lowest common denominator: whatever appeals to the most people online, oriented towards their respective bases. (That's not exactly right, but close enough). How do you manage a constructive conversation like that? You could have one, but you'd have to avoid making it about scoring points. I'm sure some politicians are sincere enough and sufficiently non-cynical to do this. But even then, you'd still have to make it be something that reaches the collective consciousness to get traction, unless you can manage to get enough behind the scenes. But it's popular legitimacy that matters mostly when we're looking at it from the view of the polarization of the discourse, not what Congress, for example, thinks, so behind-the-scenes isn't quite what we're asking for here.
I like the Free Press's debates, even if there used to be better debates.
Good point regarding questions. Having them asked by a sympathetic person would help.
Ideally, we would hold some sort of convention in total secrecy, then the convention would release a list of possible proposals for reform and ask the public which option they would prefer. We could then have a period of public parlor talk and debate. If the big parties avoided immediately staking out a stance, I think there would be a decent chance of people selecting a favorite. The convention system is sadly almost never used anymore, but can be very effective.
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