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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?
Can someone help me understand the continuing opposition to Citizens United? I didn't pay a lot of attention to Supreme Court news back in 2010, so I wasn't following the details of the controversy. But I remember the kerfluffle around Alito (allegedly) mouthing "not true" when Obama said, during a state of the union speech, that the ruling would "open the floodgates for special interests, including foreign corporations, to spend without limits in our elections." But the Supreme Court's ultimate decision seemed so obviously correct that I'm amazed it was ever disputed at all--and the fact that, years later, some people continue to consider it an egregiously bad opinion is totally baffling to me.
Here's my quick and dirty understanding of the constitutional issue in that case (please correct me if it's wrong): Citizens United was a nonprofit corporation that made a documentary video criticizing Hillary Clinton. They wanted to 1. show the video on cable TV and 2. advertise the video on cable and broadcast TV. The Federal Election Commission wouldn't let them, because federal campaign finance laws prohibited corporations and unions from spending money to advocate for or against a candidate in an election. The Supreme Court ruled in favor of CU, finding that the provisions of the federal statute in question constituted a ban on political speech and were, therefore, unconstitutional.
Isn't this ... obviously right? Like, if "freedom of speech" means anything, it has to mean that advocacy groups can publish a criticism of a politician. The FEC's counterarguments all seem really lame, like saying the First Amendment doesn't apply to corporations because they have too much money (what if they don't? And what about rich individuals--are they unprotected by the 1A too?), or because their views don't necessarily reflect the views of the public at large (since when does that permit restricting someone's speech?), or because some shareholders might not agree with the corporation's position (which is equally true of media corporations; does the 1A not apply to "the press"?). I really struggle to see how anyone could agree that these arguments justify the FEC's position. On the other hand, the idea that Congress can ban political speech--the most important kind, for First Amendment purposes--about a presidential candidate, no less--just because the speaker is a body of multiple people joined together, rather than the same people acting alone--seems both arbitrary and clearly unconstitutional. (Especially in the guise of campaign finance laws, which in my opinion should have some connection to, you know, financing someone's campaign, rather than restricting independent criticism of a politician.)
I like to think that the Obama-esque critique of CU is more sophisticated than just "corporations BAD!" But that seems to be the thrust of both Obama's SOTU soundbite and, from what I've read of it, Justice Stevens' dissent. (Stevens also complains that the Court went beyond the narrow issues raised by the parties, but I guarantee you that's not why people are still up in arms about this case years later.)
Well, nonprofits are NOT fundamentally different than companies. In terms of the deep fundamentals. I know they are in practice, but in theory, I feel strongly this is not the case! We choose as a society, and as a government, to let them be a little more free with how they raise and spend money because we think that they can bring some social good by doing so, and feel bad about making that super hard for them. Thus we allow them to avoid taxes and certain regulations, often in exchange for following other, different regulations to make sure they actually are categorized correctly. These categories are defined by law, not by any fundamentals.
It's worth taking a second look at good old Amendment 1:
Note that things we consider nonprofits do not in fact line up clearly with the Constitutional categories stated here. Churches are kind of the same thing as Religion, but not entirely! We choose to treat many as nonprofits. How much is convenience, how much is moral arguments as above, and how much is force of ultimate law? Of course note that the Religion bit comes with a different vibe, where it's bad to prohibit free exercise, and they can't establish religion, but presumably there is some sort of sense that mild restrictions on churches might not necessarily prevent free religious (individual) exercise, though by and large we have chosen not to go there. The Press is kind of a bunch of news corporations, but some are nonprofit and some are for profit. Free Speech is something that can't be abridged, and this is connected with the Press stuff via punctuation, but also a bit of a different point, often taken individually. Note that lawyers and scholars have built up some other common law stuff around these, so the text isn't exactly self-sufficient (many free speech exceptions exist despite the language being, on its face, pretty clear: NO ABRIDGING) and caution is warranted to not get too carried away.
Overall however, it's clear The Press is clearly something special and different. I'm not familiar enough with the legal distinction, though maybe I should be. When we talk about corporations, however, we are back to the whole idea that you correctly called out about associations of people. This is tricky. The sound bite that this declared "corporations are people" is not too far off. You seem to agree that functionally speaking, corporations are similar enough to people that we might as well treat them as people (for free speech purposes at least).
It's treating presumably individual rights to apply to big groups of people with no critical thinking involved at all, in the opinion of detractors, that is one holdup. What about makeup of the corporation, does that matter? What if there are a bunch of noncitizens in the company? Running the company? If people within the company disagree, isn't this kinda like "taking away" speech opportunities of the minority view, and giving it to the majority view, which creates a disproportionate effect similar to silencing speech, in effect? Another counter-argument was more of a common law objection about corruption. If a person has and spends a lot of money, maybe that's fine, but if they spend it in a way that is less close to "I have a political opinion" and more close to quid pro quo stuff, maybe that's less fine? Accordingly, you might notice a few precedent cases called into question by the decision included some explicitly about this very issue, collisions with anti-corruption legislation (which in a common sense and common law direction is going to be given some weight). In other words, spending money isn't quite equivalent to speech, it really, really depends on what the money is for. In fact, the SC still distinguishes between direct and indirect (i.e. PAC) contributions AFAIK for only this reason, the corruption potential, though the practical implementation of this leaves... something to be desired.
tl;dr;be less talky: All this long comment to say that your assessment that the case came down to "common sense" conflicting with the actual, practical meaning of the law (and Constitution) is probably correct. But common sense does show up in many First Amendment cases, so this expectation wasn't wholly emotional. And "common sense", though ill defined, is broadly popular.
Thanks for the response. I agree that nonprofit vs. for-profit corporations is not really a relevant distinction ... but Citizens United did not rely on that distinction, so it doesn't have anything to do with the outcome of the case.
Not that clear, actually. There is a live debate about whether the "Freedom of the Press" clause protects "the press" as an industry (professional journalists, newspapers, and media corporations) or "the press" as a type of speech-related activity, which anyone can do. The linked article argues for the latter interpretation, which I think is clearly the better view.
SCOTUS expressly held "We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process ... Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process." In other words, SCOTUS did not address whether Congress could restrict corporate speech based, specifically, on foreign ownership, but since the statute in question applied to all corporations, the statue was not "narrowly tailored" to that concern.
The Court addressed, and rejected, that argument on the following grounds: (1) it applies equally to media corporations, and nobody believes the government should have the power to restrict political speech by e.g. newspapers; (2) there's little evidence such abuses could not be corrected through the procedures of corporate democracy; (3) the statute in question is clearly inadequate to address such concerns, because those concerns implicate all speech in all media at all times, but the statue only applies to certain kinds of political speech, in certain media, at certain times close to an election; and (most importantly, IMO) (4) the statute is at the same time overinclusive--again, not "narrowly tailored"--because it covers all corporations, including those with only a single shareholder. I think these points add up to a pretty compelling argument that the statute in question was "narrowly tailored to address a compelling government interest," but, again, it left open the possibility that Congress could pass a narrower law that would satisfy the constitution.
This issue was also addressed by the court, and found wanting. The big reason is that CU's spending was an "independent expenditure"--it did not give any money to any political candidate, nor to any political party, nor did it coordinate with any candidates or parties. It didn't even endorse a particular party or candidate; it just criticized Hillary Clinton. If CU's spending could be construed as a quid-pro-quo, so could just about any form of political advocacy. Obviously, politicians probably appreciate it when private parties (corporate or otherwise) are critical of their opponents, and unscrupulous politicians might even be tempted to show favoritism as a result--but that clearly doesn't justify Congress banning independent criticism of political candidates!
If by "common sense conflicting with the actual meaning of the law", you mean that ignoramuses misinterpreted, and continue to misinterpret, the Court's "probably correct" decision, I suspect you are likely correct. And in the sense that ignoramuses, in this matter and many others, vastly outnumber those who actually know what they're talking about, I agree that the decision was likely not "broadly popular." But I don't agree that SCOTUS perpetrated a "needless own-goal," in your words, by arriving at a well-reasoned and probably correct decision, just because it was misrepresented and misunderstood by left-leaning pundits and their gulls.
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