Yes, the court gave Trump a win on Monday — but don't be fooled: Even there, the Supreme Court was consolidating power for itself. That wasn't all on Monday, either.
We have a new letter to CJ Roberts. It ends thusly:
"In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Court whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people."
When has Congress stripped the Supremes of jurisdiction? They have certainly made some Supreme Court jurisdiction optional, to control an overloaded docket, but when have they removed jurisdiction?
I remember when people suggested removing SCOTUS jurisdiction over abortion. It never happened, because no one was short-sighted enough to try it.
Congress can also impeach the president. Until recently, common sense prevented them from doing so except in the most extreme of situations; lowering the threshold for it would lead to any yahoo in Congress doing so for any reason. Clinton's impeachment moved us closer to the edge.
Which brings us to today. Impeachment has been "weaponized", to use the current phrase. Attempts to restrict the Supreme Court's jurisdiction would go over the same cliff, as each attempt would lower the hurdle for the next. What was done at first with the highest intentions, would end up mere acts of revenge.
The supreme court can make the rules, and is doing so. What it can't do is enforce them. That function ultimately always comes down to law enforcement officials authorized to carry weapons, and they are under the control of the executive branch (at whatever level of government - federal, state, or local). They are the ones who raid, arrest, seize property, guard buildings and proceedings, and so forth. Of course those men and women would have to obey their orders, but that's a different problem. So if the court thinks it can control a Trump administration determined to defy it, I highly doubt it. While the same would apply to a Democratic administration, I don't think our side understands power this way, and is unlikely to do so until the other side is fully in control. Power can be exercised only either by consent or by force. We are still trying consent now, but force looms in the wings.
"What the framers clearly meant by the term 'checks and balances' is that due to the many difficult questions raised in the course of governing, a supreme court is necessary to hold both the legislative and executive branch in check and serve as the pillar on which the scale pans of these branches balances. Obviously, the judicial branch is meant to hold the plumb line and tighten the balancing screws to maintain the separation of powers that the founding fathers intended." -John Roberts (probably)
"Trump’s sentencing in N.Y. hush money case postponed until September"
"Donald Trump’s lawyers are seeking to vacate his New York hush money conviction based on Monday’s Supreme Court ruling on presidential immunity." [Washington Post]
The political graveyard is full of once-good people-- and institutions-- who thought they could control Trump, but were, instead, corrupted by him. He lured them by his promise of unfettered power used in a "good" cause; an example would be evangelical Christians who declared him their "knife fighter", claiming his lack of principles made him a good Defender of the Faith, worth turning a blind eye to as long as he accomplished their goals. Anyone can see the effect this had on them.
Now the conservatives on the Supreme Court has appointed him their knifefighter, believing that they can control him. We will see. To corrupt a well-known saying, the political graveyard ain't half-full yet.
This just occurred to me so I have not had a chance to test it: what if Nixon faced this issue? Would the "official acts" doctrine still be a sine qua non if he had chosen to test the waters? What am I missing in the analysis?
SCOTUS has been utterly corrupted - two of them in particular, in another time, would have been told they need to go or been impeached for blatant violations of the code of conduct/ethics. As I'm sure you know, SCOTUS has made bribery of any government official very hard or impossible to prosecute and while bribery of the President is specifically unlawful in the constitution, their order saying all official acts are presumed immune and none of them can be used in a prosecution, essentially makes bribery of a president unable to be prosecuted - another "how on earth can they not have thought of that" part of this ruling. So no, SCOTUS hasn't realized what it unleashed, it thinks the 3 dissenters were just being hysterical, and it has generated a lot more unnecessary work for lower courts by not merely addressing the issues in this Jan 6 case against the convicted felon but trying to rule 'for the ages'. But as you're the lawyer and I'm just a mad citizen of the world, I look forward to your perspective after you've thought about it some more. Seems to me the decision was based on partisan bias and special interests wanting the convicted felon to not be hampered in his Project 2025 objectives should he win the election in November. Logical legal analysis of the case wasn't the top priority. The DC appeals court did that and if SCOTUS didn't have its own agenda it was pushing, it would have denied cert. IMHO.
I will have to think about that one. I am retired and have to consult my old text books, etc. - - and give it some more thought. BTW, read Carlos Lozada's book "What We Were Thinking". Awesome analysis of the current contretemps; he read 150 other published books on it. I am on my second run-through on the book, because it is so dense. Pass it on..
Cut to the chase: SCOTUS watched as the Democrats (unmindful that what goes around comes around) were creating a Brazil/Argentina style system that would literally handcuff former presidents. The republic wouldn't end, but the executive would be forever hamstrung. FDR, had he lived, would have been sued for Japanese internment. JFK would have been prosecuted for assassinating Diem. Johnson for conducting war without a Congressional declaration. Nixon for taping without participants permission, among many things. Bush the Younger for lying about WMD. Obama for a drone-kill on a US citizen.
If you want just about every ex-president to go to jail, this is how to do it.
Roberts didn't say it--but it was time to stop the lawfare circus. Half of the electorate looked at the Trump lawsuits and decided justice is a crock. It was a tipping point. SCOTUS saved the system.
The Supreme Court upheld the Japanese Detention Act passed by Congress during WW2. How could FDR have been sued for it?
The Supreme Court ruled that Nixon had to turn over his tapes to Congress. If Presidents are engaging in war without Congress declaring war, that violates the Constitution. Congress approved the invasion of Iraq even though the IAEA said they hadn't found WMD in the nearly 2 years they had been working there and they needed a couple more months to finish their survey. They could try to sue Bush for lying but their own laziness was equally at fault. And maybe it's not such a bad thing if Presidents don't lie to Congress in order to sacrifice US military and spend taxpayer money in questionable wars. And maybe it's not such a bad thing if Presidents don't assassinate people in other countries unless they're members of Congressionally designated terrorist. organizations.
SCOTUS has immunized a President for bribery, corruption and even murder if carried out using the DOJ and his official office. As Jackson said in argument, it would enable a criminal enterprise to be run out of the Oval Office. SCOTUS has turned the White House into the Kremlin and you think this is good?????????????
Can this Court possibly overturn a Senate conviction of an impeached president, despite the Impeachment Clause endowing the Senate with "sole powers to try impeachments"?
Can Congress, under Art. III §2, cl.2, actually strip *this* SCOTUS of appellate jurisdiction in cases, e.g., concerning "presidential immunity"? Is *Marbury* all-encompassing and *judicial review* absolute, regardless of enumerated powers of Congress in re: the federal courts?
Our only hope is to gain a trifecta in the White House and Congress. The more state assemblies and judicial and gubernatorial elections we can win, the better.
If the official acts of POTUS are above the Constitution, then SCOTUS cannot even define whether the acts are "official', because the powers of SCOTUS are established by the Constitution. So SCOTUS has written itself out of the picture. They have, essentially, forfeited the power of reviewing the acts of POTUS.
Once, my stepfather confronted his accountant about an error. "But that's just a result of the system we're using," she answered. "Mrs. Lewis, you ARE the system", he said.
I would be more confident of the process described in your answer if SCOTUS had a different membership.
We have a new letter to CJ Roberts. It ends thusly:
"In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Court whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people."
The Supreme Court is a problem.
The consolation is that if we make it through this moment, Congress still has the power to strip SCOTUS of its jurisdiction on executive immunity.
Strip ‘Em of a lot of other power, too, while you’re at it.
I'm not sure how you'd do that.
When has Congress stripped the Supremes of jurisdiction? They have certainly made some Supreme Court jurisdiction optional, to control an overloaded docket, but when have they removed jurisdiction?
It's not about "when have they done it", it's the fact that they constitutionally CAN do it.
I remember when people suggested removing SCOTUS jurisdiction over abortion. It never happened, because no one was short-sighted enough to try it.
Congress can also impeach the president. Until recently, common sense prevented them from doing so except in the most extreme of situations; lowering the threshold for it would lead to any yahoo in Congress doing so for any reason. Clinton's impeachment moved us closer to the edge.
Which brings us to today. Impeachment has been "weaponized", to use the current phrase. Attempts to restrict the Supreme Court's jurisdiction would go over the same cliff, as each attempt would lower the hurdle for the next. What was done at first with the highest intentions, would end up mere acts of revenge.
LOL Okay. This conversation is done; you're obviously in your own cinematic universe.
ad hominem. Those who know, understand.
This is an unuConstitutional
court of 6. It. MUST be dealt
with.
The supreme court can make the rules, and is doing so. What it can't do is enforce them. That function ultimately always comes down to law enforcement officials authorized to carry weapons, and they are under the control of the executive branch (at whatever level of government - federal, state, or local). They are the ones who raid, arrest, seize property, guard buildings and proceedings, and so forth. Of course those men and women would have to obey their orders, but that's a different problem. So if the court thinks it can control a Trump administration determined to defy it, I highly doubt it. While the same would apply to a Democratic administration, I don't think our side understands power this way, and is unlikely to do so until the other side is fully in control. Power can be exercised only either by consent or by force. We are still trying consent now, but force looms in the wings.
"What the framers clearly meant by the term 'checks and balances' is that due to the many difficult questions raised in the course of governing, a supreme court is necessary to hold both the legislative and executive branch in check and serve as the pillar on which the scale pans of these branches balances. Obviously, the judicial branch is meant to hold the plumb line and tighten the balancing screws to maintain the separation of powers that the founding fathers intended." -John Roberts (probably)
Akin to "who will bell the cat?" problem...
"Trump’s sentencing in N.Y. hush money case postponed until September"
"Donald Trump’s lawyers are seeking to vacate his New York hush money conviction based on Monday’s Supreme Court ruling on presidential immunity." [Washington Post]
Delay Delay Delay.
That's what good lawyers get paid to do, in many cases...
Alito and Thomas also get good perks.
The political graveyard is full of once-good people-- and institutions-- who thought they could control Trump, but were, instead, corrupted by him. He lured them by his promise of unfettered power used in a "good" cause; an example would be evangelical Christians who declared him their "knife fighter", claiming his lack of principles made him a good Defender of the Faith, worth turning a blind eye to as long as he accomplished their goals. Anyone can see the effect this had on them.
Now the conservatives on the Supreme Court has appointed him their knifefighter, believing that they can control him. We will see. To corrupt a well-known saying, the political graveyard ain't half-full yet.
it's so important to look at those last four in context of each other
An Easter Egg. The Unitary Executive. “The
Framers “sought to encourage energetic, vigorous, decisive,
and speedy execution of the laws by placing in the hands of
a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the
Constitution divides among many.” So, the right kind of President can issue a proclamation exempt from the APA?
This just occurred to me so I have not had a chance to test it: what if Nixon faced this issue? Would the "official acts" doctrine still be a sine qua non if he had chosen to test the waters? What am I missing in the analysis?
Analysts online (Jill WineBanks etc) said this level of immunity given to Nixon would have meant he didn’t need to resign or be pardoned
Interesting. Stay tuned, I guess. Who knows? Does USSCt realize what it unleashed among us? Happy 4th, anyway.
SCOTUS has been utterly corrupted - two of them in particular, in another time, would have been told they need to go or been impeached for blatant violations of the code of conduct/ethics. As I'm sure you know, SCOTUS has made bribery of any government official very hard or impossible to prosecute and while bribery of the President is specifically unlawful in the constitution, their order saying all official acts are presumed immune and none of them can be used in a prosecution, essentially makes bribery of a president unable to be prosecuted - another "how on earth can they not have thought of that" part of this ruling. So no, SCOTUS hasn't realized what it unleashed, it thinks the 3 dissenters were just being hysterical, and it has generated a lot more unnecessary work for lower courts by not merely addressing the issues in this Jan 6 case against the convicted felon but trying to rule 'for the ages'. But as you're the lawyer and I'm just a mad citizen of the world, I look forward to your perspective after you've thought about it some more. Seems to me the decision was based on partisan bias and special interests wanting the convicted felon to not be hampered in his Project 2025 objectives should he win the election in November. Logical legal analysis of the case wasn't the top priority. The DC appeals court did that and if SCOTUS didn't have its own agenda it was pushing, it would have denied cert. IMHO.
I will have to think about that one. I am retired and have to consult my old text books, etc. - - and give it some more thought. BTW, read Carlos Lozada's book "What We Were Thinking". Awesome analysis of the current contretemps; he read 150 other published books on it. I am on my second run-through on the book, because it is so dense. Pass it on..
FYI Steve Vladeck just said on the Jack podcast that this immunity decision would have made Nixon immune from prosecution
Wow. And his reasoning was.... (I am not familiar with Steve V- - being a newcomer to the substack culture).
Cheers.
Cut to the chase: SCOTUS watched as the Democrats (unmindful that what goes around comes around) were creating a Brazil/Argentina style system that would literally handcuff former presidents. The republic wouldn't end, but the executive would be forever hamstrung. FDR, had he lived, would have been sued for Japanese internment. JFK would have been prosecuted for assassinating Diem. Johnson for conducting war without a Congressional declaration. Nixon for taping without participants permission, among many things. Bush the Younger for lying about WMD. Obama for a drone-kill on a US citizen.
If you want just about every ex-president to go to jail, this is how to do it.
Roberts didn't say it--but it was time to stop the lawfare circus. Half of the electorate looked at the Trump lawsuits and decided justice is a crock. It was a tipping point. SCOTUS saved the system.
You should thank him and the five others.
“Cut to the chase” is not a figure of speech for “I’d like to say the opposite thing,” but, OK.
The Supreme Court upheld the Japanese Detention Act passed by Congress during WW2. How could FDR have been sued for it?
The Supreme Court ruled that Nixon had to turn over his tapes to Congress. If Presidents are engaging in war without Congress declaring war, that violates the Constitution. Congress approved the invasion of Iraq even though the IAEA said they hadn't found WMD in the nearly 2 years they had been working there and they needed a couple more months to finish their survey. They could try to sue Bush for lying but their own laziness was equally at fault. And maybe it's not such a bad thing if Presidents don't lie to Congress in order to sacrifice US military and spend taxpayer money in questionable wars. And maybe it's not such a bad thing if Presidents don't assassinate people in other countries unless they're members of Congressionally designated terrorist. organizations.
SCOTUS has immunized a President for bribery, corruption and even murder if carried out using the DOJ and his official office. As Jackson said in argument, it would enable a criminal enterprise to be run out of the Oval Office. SCOTUS has turned the White House into the Kremlin and you think this is good?????????????
Chris knows this.
Can this Court possibly overturn a Senate conviction of an impeached president, despite the Impeachment Clause endowing the Senate with "sole powers to try impeachments"?
What do I think is the right answer? No, they cannot.
Would these new evidentiary rules hinder the prosecution of impeachment hearings?
What do I think is the right answer? No, they should not.
Can Congress, under Art. III §2, cl.2, actually strip *this* SCOTUS of appellate jurisdiction in cases, e.g., concerning "presidential immunity"? Is *Marbury* all-encompassing and *judicial review* absolute, regardless of enumerated powers of Congress in re: the federal courts?
Our only hope is to gain a trifecta in the White House and Congress. The more state assemblies and judicial and gubernatorial elections we can win, the better.
If the official acts of POTUS are above the Constitution, then SCOTUS cannot even define whether the acts are "official', because the powers of SCOTUS are established by the Constitution. So SCOTUS has written itself out of the picture. They have, essentially, forfeited the power of reviewing the acts of POTUS.
Am I missing something?
You are.
By your logic, the limits of anything defined by SCOTUS as a power of another branch cannot be defined by SCOTUS.
That's not the way it works, though. Anything outside of those limits are *not* that power — hence, able to be reviewed by SCOTUS.
Thank you. A good answer.
Once, my stepfather confronted his accountant about an error. "But that's just a result of the system we're using," she answered. "Mrs. Lewis, you ARE the system", he said.
I would be more confident of the process described in your answer if SCOTUS had a different membership.