Answer: Theoretically, the court is supposed to release them as they are done. Count me as skeptical, however, that it has not decided the immunity case. It sure looks to me and other informed court watchers that at least a couple justices are dragging their feet, giving felon and former president Donald Trump a week or so more to run out the clock before the election.
A reader asks: Wouldn’t term-limited Supreme Court justices and other federal judges pander for post-term riches and positions?
Answer: Better than accepting lavish gifts when one is still on the court! Most proposals for term limits envision the justices would remain on the federal bench, but at a lower court level. Judges do retire voluntarily now, so the potential for future jobs already exists.
A reader asks: I just read one donor pledged $50 million to Trump, another $20 million to President Biden. Is that allowed?
Answer: Sadly, yes. There are limits on direct donations to a campaign (“hard money”) or to a party, but there are no limits on giving to third-party, ostensibly independent groups — e.g., super PACs, Section 501(c)(4) groups — that can run ads and engage in other campaign-related activity.
A reader asks: Many people are expecting SCOTUS to maximize delay by sending the immunity case back to Judge Tanya S. Chutkan for analysis of which acts were presidential and which were private, thus ensuring there will be no trial before the election. On the “MissTrial” podcast, Danya Perry suggested Chutkan could do that analysis by holding a “mini-trial,” bringing in witnesses and experts to talk about the facts of the case. So we might not get the trial of Trump, but we would get all the facts in front of the public before the election. What do you think about this idea?
Answer: Yes, several legal gurus have suggested this. It may not get the wall-to-wall coverage a trial would, but the public would have the benefit of some damning evidence. It’s a poor substitute for a full trial that, absent Supreme Court stalling, could have been held and completed already.
A reader asks: Hypothetical: Second-term President Biden is able to convince a next-term Democratic majority Senate to curtail the filibuster and pass term limits on Supreme Court justices. Question: Would the sitting justices have to be grandfathered in, allowing them to serve out their lifetime appointments, or could the Senate implement term limits effective immediately, on a schedule such that the most senior justice would need to vacate his seat every two years until we have nine sitting justices with 18-year terms? In the latter scenario, I think every sitting justice would minimally be able to serve 18 years or more.
Answer: It all depends on how Congress would draft it. The problem is that the constitutionality of all of these variations would ultimately be decided by the Supreme Court. Hmmm, I wonder how it would come out? If struck down, the alternative (aside from impeachment, which is virtually impossible) would be a constitutional amendment for term limits or court expansion.
A reader asks: During the debate, Trump needs to be checked on the spot for the sorts of obvious lies he spouts with regularity. It shouldn’t be up to Biden but to a fact-checker in attendance. Is there a plan for that?
Answer: It is not clear whether the moderators will do any of this, but there is no independent fact-checker present. Afterward, I expect pundits to have a field day with Trump’s torrent of lies.
A reader asks: What would the Republican Party and its MAGA minions do if Trump … [had a health episode]. … Would they still run with him as a candidate?
Answer: If it happens before the convention, the convention would actually pick the nominee (as in the old days)! If after the convention, the Republican National Committee would choose. There is no real mechanism if the president-elect becomes incapacitated after the election but before the inauguration. The inauguration would have to go forward, whereupon the 25th Amendment would control.
At Thursday’s debate, Biden would do well to focus on the ethically challenged and ideologically extreme Supreme Court as well as lower judges (who are also incompetent in some cases) such as District Court Judges Aileen Cannon and Matthew Kacsmaryk, whom Trump appointed. The prospect of a Supreme Court filled with Justice Clarence Thomas clones and lower courts stocked with Aileen Cannons should be enough to panic reasonable voters.
“US farmers turn towards Biden over Trump’s past agricultural policies,” the headline in the Guardian explained. “A growing number of rural Americans now plan to vote for Biden, fearing Trump could cost farmers again.” Hmm. Not a perspective you often see in U.S. political coverage.
“While Joe Biden remains unpopular with farmers … results from a host of 2022 midterm races suggest that at the state and local level, support for Democratic party candidates in rural America may be rebounding,” the piece continued. “Moderate Democrats in swing states such as Pennsylvania, Michigan and Arizona, as well as Gibbs’ Ohio outperformed Biden’s 2020 presidential election figures by as much as 15%, according to analysis by Third Way, a pro-Democratic party thinktank.”
The reporter actually went to Shelby County, Ohio, to talk to people with particular interests. How had they been affected by the current and prior presidents’ policies? Examining what Trump actually did and how it affected a traditionally conservative voting bloc is something we should see more of in our horserace-dominated political coverage. The report also drilled down on Biden’s actual record. “Research shows that under the Biden administration, farming incomes have increased significantly, in large part due to government assistance and a post-pandemic bump in demand for agricultural products.”
Informative, detailed, policy-focused. More papers should try it!
The Supreme Court on Friday ruled in United States v. Rahimi. A case that never should have been brought, it challenged whether a state could prevent a domestic abuser from owning a gun. How could the court possibly prevent states from regulating guns so dangerous that people with criminal records should not be able to get them? The court was in this position because of an opinion two years earlier, New York State Rifle & Pistol Association, Inc. v. Bruen, which essentially required courts to find some analogous restriction from the time of the Second Amendment in order to uphold a gun safety law. Well, no domestic abuse laws back then, so no regulations to protect abuse victims now!
In concurrence, Justice Ketanji Brown Jackson put the blame where it belongs:
I write separately because we now have two years’ worth of post-Bruen cases under our belts, and the experiences of courts applying its history-and-tradition test should bear on our assessment of the workability of that legal standard. This case highlights the apparent difficulty faced by judges on the ground. Make no mistake: Today’s effort to clear up “misunderst[andings],” … is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them. . . .
The tests we establish bind lower court judges, who then apply those legal standards to the cases before them. In my view, as this Court thinks of, and speaks about, history’s relevance to the interpretation of constitutional provisions, we should be mindful that our common-law tradition of promoting clarity and consistency in the application of our precedent also has a lengthy pedigree. So when courts signal they are having trouble with one of our standards, we should pay attention.
Put more simply, “originalism” does not work in practice. Forcing courts to transport us back to the 18th century (before domestic abuse laws, voting rights for women, the industrial age, etc.) creates uncertainty, chaos and horrific results. If we insist on locking in gun rights in 1791 and due process in 1868, we will have an America that virtually no one wants to live in, a legal system that is unworkable and a society in which disfavored groups lose progress made over centuries.
Frankly, Jackson’s observation is on target with virtually any topic (e.g., guns, legislative deference, equal protection, substantive due process) because originalism in the hands of her colleagues has become a results-oriented exercise to roll back the habits, laws and values of modern America. It’s not simply that some justices cherry-pick history to reach the right-wing results they want; it’s that the entire exercise is unworkable and perverse.
Next week I’ll have my online chat, so please submit your questions. Questions submitted after next Wednesday will go to my next Mailbag newsletter.
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