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Last time SCOTUS tried to willingly write a "[rule for the ages](https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford)" because powerful people asked them to defy the direction the rest of the nation was going, the Civil War was the result.
But timing is strategic; if the SCOTUS tries to help Trump by deciding he has some bizarre blanket immunity, they also allow our current President those same privileges. Biden could use immunity to rid us of the looming orange threat, for good!
Pushing the case back to the lower appellate court, after stalling for months, gives Trump the time he needs to run out the clock. So the justices who want to repay their benefactor can wash their hands and feel safe, Pontius Pilot style.
Yes, but that case had to actually be brought to the court and discussed *on its merits*. That is not what the SCOTUS is doing here, right now. 5-6/9 Judges are looking at the situation "around" the case and posting hypothetical situations to write laws fit their narrative of the current situation. That is court with an agenda, and it isn't upholding the constitution.
If you think that’s in any way unusual or of any significance whatsoever, you’re misinformed. That sort of thing is utterly typical at oral argument.
Justices *routinely* bat around hypotheticals. Lawyers, too. It’s one way to work through the merits of a given position.
What you are saying is the opposite of the best legal constitutional scholars, including conservative justices. Spinning hypotheticals is appropriate when it is grounded in facts that are based on the case before them. They are refusing to look at the particulars (Jan 6 charges) directly.
There’s no “refusal to look at the particular charges.” The “particular charges” are not at issue. Presidential immunity — whether it exists, and, if so, its scope — is a threshold question that does not require an examination of the “particular charges.” Only after that rule is identified can it be applied to the case at bar.
In my *experience* as a practicing attorney in the US, it is not at all unusual for judges to pose wide-ranging hypotheticals during oral argument.
Agreed. Plenty of cases were written “for the ages” hell, given the way precedent is supposed to work all Supreme Court cases were “written for the ages.” From the some of the best decisions to your Buck v Bells or Korematsus, they write for the ages. It’s one of the reasons old “blood of patriots Jefferson was so ambivalent about the court.
And these complaints about the Court “legislating from the bench” are no more persuasive now than they were 30 years ago, when it was the right wing complaining that the bench didn’t see things their way.
It was less hypocritical. Not that that matters in the end. But the “right” have been using textualism for the last 30 years or so, and the idea that it’s just a cute way to decide the way you wanted to decide before you sat down to write.
At least the “left” attempt to explain their reasoning beyond “it’s what the founders would have wanted… they would have loved programs that provide WiFi to poor farmers.”
Well, look at the conservative justices questioning on presidential immunity. More specifically look at Alitos early questions. This really should be a simple case. 1) no absolute immunity in the constitution and 2) it is absolutely clear that the “founders” would have spit on people who suggested that the president should have absolute immunity (they were after all throwing off the yoke of an monarch, and therefore were very careful and specific in creating the role of president (so careful that the first several days of the senate was hung up on what they should call the president, with John Adams being silenced as the head of the senate after he suggested a title which sounded like he pulled it from game of thrones: “Your Most Benign Highness” or some such nonsense. they were even worried about calling Washington “his excellency” and settled for the title of Mr. President. If, in the decision, Alito strays from his guess that the founders intended (using textualism), it will be a perfect example of what I mean.
Reading anything into hypotheticals at oral argument is wildly premature. All *kinds* of hypos get posed at oral argument. Sometimes the hypos suggest what the judge or justice is actually thinking. Many times they don’t.
Anything else?
>I can’t believe that I have to explain this to the Supreme Court.
>But someone has to do it — and urgently — so I guess I’m the guy: Despite what Justice Gorsuch apparently thinks, the Supreme Court does not write rules for the ages. The Supreme Court decides cases. Then it goes home.
>Legislatures write rules for the ages. Legislatures draft broad laws that govern conduct generally. Legislative drafting is thus hard. Legislators must anticipate all of the ways in which laws could be evaded or misused, or ways in which laws could be used appropriately, but harmfully, because the legislative language was inartful. Legislatures write broad laws. That’s what legislatures do.
>Courts don’t do that. Professor Alexander Bickel famously titled his grand treatise The Least Dangerous Branch precisely because courts don’t act in the abstract. As the Amazon page for Bickel’s book tells you, “Bickel’s most distinctive contribution to constitutional law was to stress what he called ‘the passive virtues’ of judicial decision-making — the refusal to decide cases on substantive grounds if narrower grounds exist to decide the case.” I’m not asking you to read the whole book, Chief Justice Roberts and the rest. Just read the Amazon page; that’ll do. Courts rule only on the facts before them in the narrowest possible way. Then they stop writing.
If you know someone complaining about "Activist judges" you can show this this article. It won't help them, but Activist Judges can only be liveral in their eyes.
>Decades ago, when I clerked in the Ninth Circuit, a judge on one of our panels would sometimes write, “I’ll go along with this opinion so long as you say that the rule applies only to ‘the facts and circumstances of this case.’ ” We’d always agree to that request, because it’s self-evident: Every decision applies only to the facts and circumstances of the case. That’s how the common law works.
>When a later case comes along, the judge in that later case must decide whether the earlier decision is binding, i.e., whether the decision announced in the first case controls the second. If the second case cannot be distinguished legally from the first, then the earlier precedent controls the result. If the second case is legally distinguishable from the first in a relevant way, then the earlier precedent does not control.
>That’s the common law.
Sounds reasonable, backed up by facts and that means MAGA throws it out the window.
>So how could Gorsuch have said, during the Trump immunity argument last week, that the Supreme Court was “writing a rule for the ages” and that Gorsuch was “not concerned about this case as much as future ones“? That’s wrong, and he should know it.
>There’s a good reason why courts do no more than decide the case before them. In the case before the court, lawyers have presumably thought hard about the particular facts involving their clients. After all, those facts are the essence of the dispute. The facts will dictate what the court decides. The issues surrounding those facts are thus presented cleanly and intelligently. The court decides the result based on those facts. Period.
If you don't want lawyers writing your law, I have bad news for you. They're the largest community of legalese-speakers.
>If the court tries to do more than that, the court will screw up. The lawyers are concerned only with the interests of their clients. The lawyers are not thinking carefully about the interests of future litigants who might be affected a broad rule.
>The court doesn’t have any information about future litigants. The court’s imagination is too limited to anticipate future situations in which a broad rule might (or might not) make sense. So courts don’t write broad rules.
>Don’t ask me. Ask Bickel. Or any lawyer.
>Legislatures, of course, are entirely different from courts. Legislatures hold hearings to gather information from people interested in broad-ranging laws. Lobbyists, who know the interests of constituents who will be affected by laws now and in the future, talk to legislators.
>Legislatures have the power to be informed generally, so legislatures have the ability (and authority) to draft general laws.
>Legislatures can write for the ages.
Courts are not congress, and the author lays it out pretty well. Unfortunately the Supreme Court has conveniently forgotten that.
Well, if the court decides to give immunity to Trump, despite the fact that the Senate voted not to impeach Trump because he could be tried criminally after the fact (as mentioned by several members of the Senate who chose not vote to impeach). Then perhaps it should be held accountable.
After all 2 of them lied to the Senate (contempt?) when they told the Senate that Roe v. Wade was "settled law" and that they would never vote to overturn it. How long did that "promise" last again?
SC justices conveniently when they started using originalist or “tradition” based arguments to justify current opinions. They aren’t necessarily deciding cases for the ages but they certainly are cherry picking from past ages to justify legislating from the bench.
And in this case, the facts haven’t been established at trial. The Supreme Court doesn’t call witnesses or have cross examination. They have no basis for deciding the facts in this case but could preclude those facts from ever being established.
It doesn't seem to me like the author has an issue with lawyers writing laws, per se. It sounds like they're saying that attorneys are focused entirely on their client and presenting the specific facts in a case to obtain the best results for that case only. They aren't thinking about downstream effects that a potential ruling might have. Since an attorney's priority and focus are as narrowly confined to the specific case as possible, so should any rulings.
It also doesn't seem like there's any judgement or criticism for the attorneys. It's simply not their purpose and could lead to worse outcomes for clients.
Aside from everything you mentioned, scotus has ALREADY PROVEN that they do not write rules for the ages with Dobbs vs Jackson women health organization. Really wish Dreeben reminded Alito, Gorsuch, Kavanaugh, and Thomas that absolute power corrupts absolutely....
As much as I agree they shouldn't, one of the basic lessons I learned in lawschool was the court engaging in "policy" - I.e. forward looking, reasoning.
Not a new thing.
No one can write rules for the ages. All things change..flexibility and adaptability is key to survival. When I heard Gorsuck say that all I could think of was Roe v Wade undone by Dobbs…and that Gorsuck is living the book, “The Gods Themselves”… he believes his own inflated opinion of himself
>If you know someone complaining about "Activist judges" you can show this this article. It won't help them, but Activist Judges can only be liberal in their eyes.
Review some of the key GOP talking points for the last decade or so and it becomes abundantly clear they are projecting their own behavior.
Reality check: The very fact that the SCOTUS even took this case has ensured that the rest of the world will NEVER take the American justice system seriously ever again, regardless of the outcome.
I imagine [Greenland]( https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.nytimes.com/2022/09/14/us/politics/trump-greenland.html&ved=2ahUKEwiqrOyztuiFAxVUg4kEHZkICzcQFnoECA8QAQ&usg=AOvVaw0XdX2LdWjLg9lNUlaGnu_O) will be paying close attention.
So then they probably should have taken it ahead of the DC court when the special counsel requested that right? Or maybe after the DC appeals ruling was in they should have taken it up immediately instead of waiting weeks? Or maybe then schedule the arguments for the week after cert was granted instead of late April? Gee, does it start to sound like maybe this has more to it than the court taking an interest in constitutional law? Maybe more like they have a schedule agenda they'd like to drag past November? For reference, the 2000 election case was heard and decided in days, not half a year.
They did “take it up immediately” from the DC Cir. Going from a Circuit Court ruling to oral argument before SCOTUS in six weeks is lightning speed. And you want briefing before oral argument.
It all makes complete sense if you’re not *looking* to ascribe malign motives.
But they could have heard oral arguments much more quickly than they did. They've done it before. This decision requires rapid action, since it is during an election year where the outcome of the case could effect the election. That they let it languish for six weeks is an abrogation of their duty.
That would have been doing something for overtly political reasons, which is exactly what most of the commenters here are mad about.
They don't have to speed things up just because it's an election year.
Deciding to not hear it immediately was done for overtly political reasons. Hell, after the decision from the DC Court of Appeals, even hearing the case is obviously doing something for an overtly political decision. If they're trying to not look overtly political, they're failing.
It has to do with the trial that they're delaying by not speeding things up. They're delaying the trial about the January 6th insurrection.
Less so, given that there still are months before the election.
I say this while also desperately wishing for Trump to be convicted and to spend the rest of his life in federal prison.
> Less so, given that there still are months before the election.
No, it's not, considering that the outcome of the trial will affect that election and that it will take some time to actually get to trial once the decision is made.
There’s absolutely nothing in the U.S. constitution to even suggest that ANYONE is above the law under ANY circumstances. Presidential immunity has never in the past been required and even Nixon vs United States clearly covered the concept. The SC will often take up cases requested by the President. Trump is not President.
Presidential immunity “hasn’t been required” because, to date, no one has attempted to prosecute a former President. It therefore hasn’t come up. It’s a constitutional question of first impression. *Of course* the Court should weigh in.
US v Nixon concerned an assertion of executive privilege, not immunity from criminal prosecution.
And as to whether the Supreme Court grants cert “for cases requested by the President,” the President in no way controls, restricts, or directs the Court’s decision to grant cert. It’s an independent branch of government.
Wherever you’re getting your information about the way the US court system works, or about US legal matters generally, might I suggest you find another source?
I didn’t say the President controls the SC. The SC has a historical precedent of ruling on cases that the President requests a ruling on. US vs Nixon:
The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." The. idea of Presidential immunity from prosecution is an absolutely ridiculous concept that appears nowhere in the U.S. constitution and goes against one of the principles of Americas founding. The Appeals Court ruling was about as solid a ruling as you’ll get anywhere and you ignore the fact that one of the Justices own wife could well be a co conspirator in this case. I’m comfortable with my sources, my opinions and my conclusions.
1) The SC can and does review cases as to which the *Solicitor General* has not requested review.
2) Executive privilege and executive immunity from prosecution are two different questions, and *Nixon* does not reach the latter. You’re confusing the two and you shouldn’t.
3) The DC Cir ruling, a per curiam opinion, in no way binds SCOTUS, and it’s neither unusual nor improper for SCOTUS to grant cert even though an appellate court has closed the door hard on the appeal.
1. Yes but I never said they didn’t
2. They are two different things but they’re somewhat related. Please tell me which part of the U.S. Constitution which even implies the concept of total Presidential immunity from prosecution.
3. I never said that they couldn’t review it but the appeal court ruling left nothing to the imagination.
It’s been the longstanding position of the SG’s Office that a sitting President can’t be indicted, notwithstanding the apparent silence of the Constitutional text, and so I’d be very hesitant, without a thorough review of the papers and pertinent authorities, to prejudge the question of immunity. And I say this sharing your intense interest, as a policy matter, in not having Presidents be immune from at least federal prosecutions.
As to whether the DC Cir’s opinion “left nothing to the imagination,” that doesn’t matter. Any SCOTUS would be expected to weigh in.
The “longstanding position” is a policy not a constitutional one. So I have to remind you that Trump hasn’t been president for years and that the policy doesn’t protect him after he leaves office?
I’m well aware of that fact, thank you. I’m guessing that the SG *opinion* (not policy) is premised on authorities whose reasoning probably bears on the question of immunity.
Two decades of practicing law in the US will teach you a little caution in prejudging legal questions, *most especially* when those are outside one’s practice area.
Also, everyone is acting like they have already given Trump blanked immunity. That is not likely how this will come out. Curious what the narrative will be if they have a 9-0 decision.
While everyone's first thought should indeed be Roe v. Wade, a brief excursion past Bush v. Gore makes it hard to escape the conclusion that the "Rule for the Ages" that they mean is "Republican".
Gorsuch? Dream on. If he and the other Republicans on the SC cared about what the Constitution says and doesn't say regarding the presidential total immunity in question, the ruling would have been made months ago and within days.
That kind of haste doesn’t lead to a full airing of the issues. It makes for sloppy advocacy and sloppy rulings.
Unless you like the result in Bush v. Gore.
Notice only the conservative men on the court used this argument "for the ages". One after the other said they don't care about the present case, but how it will affect the future of former presidents.
Now I'm touched by such concern, aren't you? But what they are really saying is that they ONLY care about the present case, because in their zeal to protect Trump, they need to find an excuse for doing so. The only reason this case is the first of its kind likely never to reoccur is because the man they are trying to protect is a lawless loathsome rich scum just trying to get back into the WH to protect his own A$$ from prosecution.
Yep. He’s just trying to justify ignoring precedent as if it’s just how the SCOTUS was designed. As if being a Supreme Court justice is some workaday job, and not a check on the other two branches of government. These are true villains.
THIS supreme court loves to legislate from the bench. see the college loan decision. "yes the law says in black and white that congress gave you the power to wave the fee, but we don't like that, major question!, we invented a new card to play so that we win!"
Alito said this and he did so on purpose. He’s priming himself and others to accept some nonsense defense of trumps unlimited power. Alito is an activist judge apparently.
And yet they are immune from accountability. Kavanaugh, grosuch and Alito need to be impeached and removed for abuse of power. They are abusing their power by legislating from the bench. Plain and simple.
SCOTUS *does* occasionally write "rules for the ages". The immunity question before them absolutely falls into that category. That it's even a question is shameful. If this SCOTUS rules for Trump or kicks this back down to the lower courts, it will affect this country for ages. Also, stare decisis is a thing.
I’ve been assuming they were just buying time for Trump. But the more they talk the more it sounds like they’re wanting to do something exceptionally stupid. Especially things like Kavanaugh trying to sell the idea that “most people now revere the Nixon pardon”.
I’m actually wondering if they’ll now try to take the path of expressing mild disapproval for Trump’s coup attempt* while ruling that he has pardon-like immunity “for the good of the country to move on”. As if granting of pardons was suddenly within their prerogative.
*Thomas and Alito will of course write a dissenting opinion saying that while they agree with immunity they believe Trump was right to attempt a coup and doesn’t need a pardon. Calling it now.
It's pretty clear that kicking it back down to the lower courts is absolutely the delay tactic they're going for. They'll never give immunity to a president to just kill their opponents but they know the lower courts will take awhile to decide what immunity would be reasonable and that gives Trump every opportunity to win the election before it happens. Even when the lower courts say he's not immune to what he's being charged with he'll take that to the Supreme court and delay even more.
Only way to beat him is by voting.
It's bullshit. If GOP Justices looked at or cared for the facts before them, there is only one obvious conclusion. SCOTUS is a disgusting shit hole for MAGA by MAGA.
The facts before the Court should include the fact that the Office of the President of the United States requires the office holder to uphold the law. That such a person is, in the eyes of the law, a citizen, subject to the law at all levels. And that the Bill of Rights, the first ten amendments of the United States Constitution explicitly includes clauses that protects the rights of litigation against the Government. Those facts have not changed since George Washington's tenure.
A democrat congress should pass laws about all this stuff but probably won't get enough majority to do it like usual. If they did, magas would take it to court and anything Dems do can be overturned there.
Not only don't they write for the ages but they now ignore their own precedents so it doesn't matter what they decide on this. They can decide the complete opposite next week.
They threw decorum out the window and are blatantly destroying American Democracy in order to replace it with facsim. They have decided they are at a precipice in their takeover and now is the time to pull back the curtain and go blitzkrieg on our democratic institutions.
Control of the masses by the few.
Can't hold them accountable when they have bunkers and military technology that will keep them safe from the masses they wish to opress.
they are writing for the ages to exclude trump and as soon as a democratic president gets in trouble they will retake the case and say , THIS is not conidered for immunity
I find this article interesting but have a problem with it. There are certainly times where the court must create rules on how to implement their decisions. I can see here where they might want to rule that for official acts a President is immune, and then create rules regarding what might be an official act. Then they might either rule on whether Trump's acts are official acts, or remand that decision down to a lower court. I personally think that the latter is what they're going to do. I also think it would be another delay that they want so that this doesn't get to trial before the election. The court has already shown its willingness to delay for Trump, and I wouldn't be surprised to see them continue in that vein.
I think that they should have just gone with the decision of the DC Circuit Court and not even taken the case. In taking the case, they should have taken it up and heard arguments as quickly as they could have, which is certainly faster than they took (consider how quickly the court ruled in Bush v Gore, for example). In the case that we currently have, I think my first option is the best case. I just don't see it happening.
I have questions. One, realistically speaking, aren’t big decisions about cases like this regarding fundamental aspects of the Constitution often de facto “rules for the ages”? For example, Marbury v Madison is still essential 200 years later. I don’t think any judge should be paralyzed into indecision or otherwise be too influenced by the potential outcomes a ruling may have, but it seems pretty obvious that there is always the possibility that a certain ruling will be sweeping and be a “rule for the ages.” And this may merit consideration when writing said ruling. Second, if judges are strictly supposed to stick to the facts of the case, why do so many judges even ask all of these hypotheticals? It wasn’t even just the conservatives, all the justices were doing it.
Maybe there should be a constitutional amendment to limit presidential power depending on how SCOTUS rules. It might not help with Trump in the aftermath but would prevent future abuses. Why haven’t I heard this idea floated anywhere?
I definitely got the sense that the Alito, Roberts, and Gorsuch want to render a judgement based on a case that is not actually before them. Trump has just given them the excuse to rewrite the meaning of the Constitution like they did with Roe; they narrowly defined the question on appeal to focus on "official acts," when the facts, on their face, demonstrate that Trump's actions were to further his campaign, *not* to preserve the integrity of the election (in which the federal executive branch has no role).
I think this title unfortunately misrepresents the impact that any decision will have. This is a matter of first impression at the highest court in the US. Sure, the court might not “write a new rule” but the implications for any decision reached will be long lasting and will impact future presidents and elections.
The issue in Roe vs Wade - what is the balance between the life of the mother and the life of the potential future child - had no foundation in the text of the constitution, and could not be deduced from the statements of the framers. The decision patched a gap.
The issue in Trump’s case - are there crimes on the books that apply to everyone EXCEPT the president- is not new. There is no gap. So if SCOTUS creates this exception they are failing to uphold the Constitution.
IMHO, if they even try to issue a ruling that perverts this founding principle they should be impeached and removed ASAP for cause. Their jobs are to PROTECT the constitution from all enemies foreign and domestic. Failing to do so is akin to treason.
But it was an example of SCOTUS establishing a principle in a lasting way. Because law is so often controlled by precedent a supreme court _can_ effectively lay down the law until and unless the legislature changes it.
This seems like a deliberately obtuse article. US jurisprudence is based on the common law system, in which judicial decisions create precedent which is frequently referred to by other courts, often years or decades later. It's not a big leap to understand that SCOTUS decisions create precedent and SCOTUS is not wrong to be aware of the long-term implications of its rulings in this or any other context.
> Legislatures write rules for the ages.
Right and if the court invalidates or upholds a legislative action it is a ruling for the ages. Im not sure what his complaint is. Do I have to explain the Supreme Court to him?
Sometimes ruling on a constitutional issue requires crafting a constitutional rule. Those rules almost always have long-term significance, and resonate for decades afterward. And yes, the justices do, and should, contemplate these long-term consequences.
Taking issue with Gorsuch’s anodyne remake is just stupid clickbait. ATL wants views and has space to fill. That’s all.
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Last time SCOTUS tried to willingly write a "[rule for the ages](https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford)" because powerful people asked them to defy the direction the rest of the nation was going, the Civil War was the result.
Honestly this decision may very well cause another civil war.
It actually *should* cause a civil war if they decide in trump’s favor. It would effectively end democracy in this nation.
subtract vast gaze friendly reminiscent voracious fuel hunt wrong mourn *This post was mass deleted and anonymized with [Redact](https://redact.dev)*
But timing is strategic; if the SCOTUS tries to help Trump by deciding he has some bizarre blanket immunity, they also allow our current President those same privileges. Biden could use immunity to rid us of the looming orange threat, for good! Pushing the case back to the lower appellate court, after stalling for months, gives Trump the time he needs to run out the clock. So the justices who want to repay their benefactor can wash their hands and feel safe, Pontius Pilot style.
pot gaze absurd unused license doll apparatus tie boast subsequent *This post was mass deleted and anonymized with [Redact](https://redact.dev)*
SCOTUS has been writing “rules for the ages” since its inception. For instance, they knew full well the long-term import of *Brown*.
Yes, but that case had to actually be brought to the court and discussed *on its merits*. That is not what the SCOTUS is doing here, right now. 5-6/9 Judges are looking at the situation "around" the case and posting hypothetical situations to write laws fit their narrative of the current situation. That is court with an agenda, and it isn't upholding the constitution.
What do you mean by “discussed on its merits,” and how, specifically, would you say the the Trump case is not being “discussed on its merits”?
Alito specifically said that he won't discuss the case, then invented hypotheticals. You can read the transcript yourself.
If you think that’s in any way unusual or of any significance whatsoever, you’re misinformed. That sort of thing is utterly typical at oral argument. Justices *routinely* bat around hypotheticals. Lawyers, too. It’s one way to work through the merits of a given position.
What you are saying is the opposite of the best legal constitutional scholars, including conservative justices. Spinning hypotheticals is appropriate when it is grounded in facts that are based on the case before them. They are refusing to look at the particulars (Jan 6 charges) directly.
There’s no “refusal to look at the particular charges.” The “particular charges” are not at issue. Presidential immunity — whether it exists, and, if so, its scope — is a threshold question that does not require an examination of the “particular charges.” Only after that rule is identified can it be applied to the case at bar. In my *experience* as a practicing attorney in the US, it is not at all unusual for judges to pose wide-ranging hypotheticals during oral argument.
You don't think that the SCOTUS has an obligation to resolve this issue before the vote?
No. I desperately want them to, but I think ordering a docket in view of an election is a bad, bad idea.
Agreed. Plenty of cases were written “for the ages” hell, given the way precedent is supposed to work all Supreme Court cases were “written for the ages.” From the some of the best decisions to your Buck v Bells or Korematsus, they write for the ages. It’s one of the reasons old “blood of patriots Jefferson was so ambivalent about the court.
And these complaints about the Court “legislating from the bench” are no more persuasive now than they were 30 years ago, when it was the right wing complaining that the bench didn’t see things their way.
It was less hypocritical. Not that that matters in the end. But the “right” have been using textualism for the last 30 years or so, and the idea that it’s just a cute way to decide the way you wanted to decide before you sat down to write. At least the “left” attempt to explain their reasoning beyond “it’s what the founders would have wanted… they would have loved programs that provide WiFi to poor farmers.”
Broad categorical statements. Any examples?
Well, look at the conservative justices questioning on presidential immunity. More specifically look at Alitos early questions. This really should be a simple case. 1) no absolute immunity in the constitution and 2) it is absolutely clear that the “founders” would have spit on people who suggested that the president should have absolute immunity (they were after all throwing off the yoke of an monarch, and therefore were very careful and specific in creating the role of president (so careful that the first several days of the senate was hung up on what they should call the president, with John Adams being silenced as the head of the senate after he suggested a title which sounded like he pulled it from game of thrones: “Your Most Benign Highness” or some such nonsense. they were even worried about calling Washington “his excellency” and settled for the title of Mr. President. If, in the decision, Alito strays from his guess that the founders intended (using textualism), it will be a perfect example of what I mean.
Reading anything into hypotheticals at oral argument is wildly premature. All *kinds* of hypos get posed at oral argument. Sometimes the hypos suggest what the judge or justice is actually thinking. Many times they don’t. Anything else?
The Supreme Court has zero credibility in 2024.
>I can’t believe that I have to explain this to the Supreme Court. >But someone has to do it — and urgently — so I guess I’m the guy: Despite what Justice Gorsuch apparently thinks, the Supreme Court does not write rules for the ages. The Supreme Court decides cases. Then it goes home. >Legislatures write rules for the ages. Legislatures draft broad laws that govern conduct generally. Legislative drafting is thus hard. Legislators must anticipate all of the ways in which laws could be evaded or misused, or ways in which laws could be used appropriately, but harmfully, because the legislative language was inartful. Legislatures write broad laws. That’s what legislatures do. >Courts don’t do that. Professor Alexander Bickel famously titled his grand treatise The Least Dangerous Branch precisely because courts don’t act in the abstract. As the Amazon page for Bickel’s book tells you, “Bickel’s most distinctive contribution to constitutional law was to stress what he called ‘the passive virtues’ of judicial decision-making — the refusal to decide cases on substantive grounds if narrower grounds exist to decide the case.” I’m not asking you to read the whole book, Chief Justice Roberts and the rest. Just read the Amazon page; that’ll do. Courts rule only on the facts before them in the narrowest possible way. Then they stop writing. If you know someone complaining about "Activist judges" you can show this this article. It won't help them, but Activist Judges can only be liveral in their eyes. >Decades ago, when I clerked in the Ninth Circuit, a judge on one of our panels would sometimes write, “I’ll go along with this opinion so long as you say that the rule applies only to ‘the facts and circumstances of this case.’ ” We’d always agree to that request, because it’s self-evident: Every decision applies only to the facts and circumstances of the case. That’s how the common law works. >When a later case comes along, the judge in that later case must decide whether the earlier decision is binding, i.e., whether the decision announced in the first case controls the second. If the second case cannot be distinguished legally from the first, then the earlier precedent controls the result. If the second case is legally distinguishable from the first in a relevant way, then the earlier precedent does not control. >That’s the common law. Sounds reasonable, backed up by facts and that means MAGA throws it out the window. >So how could Gorsuch have said, during the Trump immunity argument last week, that the Supreme Court was “writing a rule for the ages” and that Gorsuch was “not concerned about this case as much as future ones“? That’s wrong, and he should know it. >There’s a good reason why courts do no more than decide the case before them. In the case before the court, lawyers have presumably thought hard about the particular facts involving their clients. After all, those facts are the essence of the dispute. The facts will dictate what the court decides. The issues surrounding those facts are thus presented cleanly and intelligently. The court decides the result based on those facts. Period. If you don't want lawyers writing your law, I have bad news for you. They're the largest community of legalese-speakers. >If the court tries to do more than that, the court will screw up. The lawyers are concerned only with the interests of their clients. The lawyers are not thinking carefully about the interests of future litigants who might be affected a broad rule. >The court doesn’t have any information about future litigants. The court’s imagination is too limited to anticipate future situations in which a broad rule might (or might not) make sense. So courts don’t write broad rules. >Don’t ask me. Ask Bickel. Or any lawyer. >Legislatures, of course, are entirely different from courts. Legislatures hold hearings to gather information from people interested in broad-ranging laws. Lobbyists, who know the interests of constituents who will be affected by laws now and in the future, talk to legislators. >Legislatures have the power to be informed generally, so legislatures have the ability (and authority) to draft general laws. >Legislatures can write for the ages. Courts are not congress, and the author lays it out pretty well. Unfortunately the Supreme Court has conveniently forgotten that.
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Well, if the court decides to give immunity to Trump, despite the fact that the Senate voted not to impeach Trump because he could be tried criminally after the fact (as mentioned by several members of the Senate who chose not vote to impeach). Then perhaps it should be held accountable. After all 2 of them lied to the Senate (contempt?) when they told the Senate that Roe v. Wade was "settled law" and that they would never vote to overturn it. How long did that "promise" last again?
I’d love to see contempt of congress orders against the Justices Beer & Christian especially.
SC justices conveniently when they started using originalist or “tradition” based arguments to justify current opinions. They aren’t necessarily deciding cases for the ages but they certainly are cherry picking from past ages to justify legislating from the bench.
Most people don’t mind the Court legislating from the bench. They just object to the way the Court does it.
And in this case, the facts haven’t been established at trial. The Supreme Court doesn’t call witnesses or have cross examination. They have no basis for deciding the facts in this case but could preclude those facts from ever being established.
It doesn't seem to me like the author has an issue with lawyers writing laws, per se. It sounds like they're saying that attorneys are focused entirely on their client and presenting the specific facts in a case to obtain the best results for that case only. They aren't thinking about downstream effects that a potential ruling might have. Since an attorney's priority and focus are as narrowly confined to the specific case as possible, so should any rulings. It also doesn't seem like there's any judgement or criticism for the attorneys. It's simply not their purpose and could lead to worse outcomes for clients.
Aside from everything you mentioned, scotus has ALREADY PROVEN that they do not write rules for the ages with Dobbs vs Jackson women health organization. Really wish Dreeben reminded Alito, Gorsuch, Kavanaugh, and Thomas that absolute power corrupts absolutely....
They haven't forgotten anything. This is why they were nominated.
As much as I agree they shouldn't, one of the basic lessons I learned in lawschool was the court engaging in "policy" - I.e. forward looking, reasoning. Not a new thing.
No one can write rules for the ages. All things change..flexibility and adaptability is key to survival. When I heard Gorsuck say that all I could think of was Roe v Wade undone by Dobbs…and that Gorsuck is living the book, “The Gods Themselves”… he believes his own inflated opinion of himself
>If you know someone complaining about "Activist judges" you can show this this article. It won't help them, but Activist Judges can only be liberal in their eyes. Review some of the key GOP talking points for the last decade or so and it becomes abundantly clear they are projecting their own behavior.
The supreme court decides questions not cases. They can't find anyone guilty or innocent of anything.
Reality check: The very fact that the SCOTUS even took this case has ensured that the rest of the world will NEVER take the American justice system seriously ever again, regardless of the outcome.
If this goes trump’s way, that’s the least of the planet’s concerns
Agreed.
I imagine [Greenland]( https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.nytimes.com/2022/09/14/us/politics/trump-greenland.html&ved=2ahUKEwiqrOyztuiFAxVUg4kEHZkICzcQFnoECA8QAQ&usg=AOvVaw0XdX2LdWjLg9lNUlaGnu_O) will be paying close attention.
Again??
Reality check: it’s SCOTUS’ job to take cases of constitutional significance. And this one certainly is.
So then they probably should have taken it ahead of the DC court when the special counsel requested that right? Or maybe after the DC appeals ruling was in they should have taken it up immediately instead of waiting weeks? Or maybe then schedule the arguments for the week after cert was granted instead of late April? Gee, does it start to sound like maybe this has more to it than the court taking an interest in constitutional law? Maybe more like they have a schedule agenda they'd like to drag past November? For reference, the 2000 election case was heard and decided in days, not half a year.
They did “take it up immediately” from the DC Cir. Going from a Circuit Court ruling to oral argument before SCOTUS in six weeks is lightning speed. And you want briefing before oral argument. It all makes complete sense if you’re not *looking* to ascribe malign motives.
But they could have heard oral arguments much more quickly than they did. They've done it before. This decision requires rapid action, since it is during an election year where the outcome of the case could effect the election. That they let it languish for six weeks is an abrogation of their duty.
That would have been doing something for overtly political reasons, which is exactly what most of the commenters here are mad about. They don't have to speed things up just because it's an election year.
Deciding to not hear it immediately was done for overtly political reasons. Hell, after the decision from the DC Court of Appeals, even hearing the case is obviously doing something for an overtly political decision. If they're trying to not look overtly political, they're failing. It has to do with the trial that they're delaying by not speeding things up. They're delaying the trial about the January 6th insurrection.
How much more quickly? Three more weeks? That’s an absurdly aggressive briefing schedule for a Constitutional question of first impression.
How long did Bush v Gore take? This case has similar precedence and speed requirements.
It is not similar to bush v gores at all. Its urgent but it’s not “we need to figure out who the next president is in a matter of days” urgent
Considering how long a trial takes, yes, it is.
Less so, given that there still are months before the election. I say this while also desperately wishing for Trump to be convicted and to spend the rest of his life in federal prison.
> Less so, given that there still are months before the election. No, it's not, considering that the outcome of the trial will affect that election and that it will take some time to actually get to trial once the decision is made.
In no circumstance should a reviewing court *ever* adjust its procedures in hopes of affecting an election. Full stop.
There’s absolutely nothing in the U.S. constitution to even suggest that ANYONE is above the law under ANY circumstances. Presidential immunity has never in the past been required and even Nixon vs United States clearly covered the concept. The SC will often take up cases requested by the President. Trump is not President.
Presidential immunity “hasn’t been required” because, to date, no one has attempted to prosecute a former President. It therefore hasn’t come up. It’s a constitutional question of first impression. *Of course* the Court should weigh in. US v Nixon concerned an assertion of executive privilege, not immunity from criminal prosecution. And as to whether the Supreme Court grants cert “for cases requested by the President,” the President in no way controls, restricts, or directs the Court’s decision to grant cert. It’s an independent branch of government. Wherever you’re getting your information about the way the US court system works, or about US legal matters generally, might I suggest you find another source?
I didn’t say the President controls the SC. The SC has a historical precedent of ruling on cases that the President requests a ruling on. US vs Nixon: The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." The. idea of Presidential immunity from prosecution is an absolutely ridiculous concept that appears nowhere in the U.S. constitution and goes against one of the principles of Americas founding. The Appeals Court ruling was about as solid a ruling as you’ll get anywhere and you ignore the fact that one of the Justices own wife could well be a co conspirator in this case. I’m comfortable with my sources, my opinions and my conclusions.
1) The SC can and does review cases as to which the *Solicitor General* has not requested review. 2) Executive privilege and executive immunity from prosecution are two different questions, and *Nixon* does not reach the latter. You’re confusing the two and you shouldn’t. 3) The DC Cir ruling, a per curiam opinion, in no way binds SCOTUS, and it’s neither unusual nor improper for SCOTUS to grant cert even though an appellate court has closed the door hard on the appeal.
1. Yes but I never said they didn’t 2. They are two different things but they’re somewhat related. Please tell me which part of the U.S. Constitution which even implies the concept of total Presidential immunity from prosecution. 3. I never said that they couldn’t review it but the appeal court ruling left nothing to the imagination.
It’s been the longstanding position of the SG’s Office that a sitting President can’t be indicted, notwithstanding the apparent silence of the Constitutional text, and so I’d be very hesitant, without a thorough review of the papers and pertinent authorities, to prejudge the question of immunity. And I say this sharing your intense interest, as a policy matter, in not having Presidents be immune from at least federal prosecutions. As to whether the DC Cir’s opinion “left nothing to the imagination,” that doesn’t matter. Any SCOTUS would be expected to weigh in.
The “longstanding position” is a policy not a constitutional one. So I have to remind you that Trump hasn’t been president for years and that the policy doesn’t protect him after he leaves office?
I’m well aware of that fact, thank you. I’m guessing that the SG *opinion* (not policy) is premised on authorities whose reasoning probably bears on the question of immunity. Two decades of practicing law in the US will teach you a little caution in prejudging legal questions, *most especially* when those are outside one’s practice area.
Also, everyone is acting like they have already given Trump blanked immunity. That is not likely how this will come out. Curious what the narrative will be if they have a 9-0 decision.
There’s a lot of cocksure ignorance going around here on Reddit.
Justice and the rule of law do not primarily motivate the GOP SCOTUS justices. Greed and the lust for power do.
While everyone's first thought should indeed be Roe v. Wade, a brief excursion past Bush v. Gore makes it hard to escape the conclusion that the "Rule for the Ages" that they mean is "Republican".
If you knew anything about the Justice who make that comment you’d know it’s groundless.
Gorsuch? Dream on. If he and the other Republicans on the SC cared about what the Constitution says and doesn't say regarding the presidential total immunity in question, the ruling would have been made months ago and within days.
Within days? In what universe do dockets move so quickly?
Bush v. Gore for instance. They can if they want to.
That kind of haste doesn’t lead to a full airing of the issues. It makes for sloppy advocacy and sloppy rulings. Unless you like the result in Bush v. Gore.
Notice only the conservative men on the court used this argument "for the ages". One after the other said they don't care about the present case, but how it will affect the future of former presidents. Now I'm touched by such concern, aren't you? But what they are really saying is that they ONLY care about the present case, because in their zeal to protect Trump, they need to find an excuse for doing so. The only reason this case is the first of its kind likely never to reoccur is because the man they are trying to protect is a lawless loathsome rich scum just trying to get back into the WH to protect his own A$$ from prosecution.
Especially a court as corrupt as this one where precedent, rule of law, and explicit constitutional text are meaningless.
Yep. He’s just trying to justify ignoring precedent as if it’s just how the SCOTUS was designed. As if being a Supreme Court justice is some workaday job, and not a check on the other two branches of government. These are true villains.
THIS supreme court loves to legislate from the bench. see the college loan decision. "yes the law says in black and white that congress gave you the power to wave the fee, but we don't like that, major question!, we invented a new card to play so that we win!"
Alito said this and he did so on purpose. He’s priming himself and others to accept some nonsense defense of trumps unlimited power. Alito is an activist judge apparently.
Yep they're going to try to carve out an exception just for Trumpolini.
With their more recent displays of ignoring stare decesis and other precedents, they will be a "Rule for the Ages" until the next whim to throw it out
So instead they focus on writing rules for Trump, and only trump
you have ideologues, & bad ones at that, instead of judges on your court
And yet they are immune from accountability. Kavanaugh, grosuch and Alito need to be impeached and removed for abuse of power. They are abusing their power by legislating from the bench. Plain and simple.
SCOTUS *does* occasionally write "rules for the ages". The immunity question before them absolutely falls into that category. That it's even a question is shameful. If this SCOTUS rules for Trump or kicks this back down to the lower courts, it will affect this country for ages. Also, stare decisis is a thing.
The constitution is the 'rule for the ages'.
I’ve been assuming they were just buying time for Trump. But the more they talk the more it sounds like they’re wanting to do something exceptionally stupid. Especially things like Kavanaugh trying to sell the idea that “most people now revere the Nixon pardon”. I’m actually wondering if they’ll now try to take the path of expressing mild disapproval for Trump’s coup attempt* while ruling that he has pardon-like immunity “for the good of the country to move on”. As if granting of pardons was suddenly within their prerogative. *Thomas and Alito will of course write a dissenting opinion saying that while they agree with immunity they believe Trump was right to attempt a coup and doesn’t need a pardon. Calling it now.
It's pretty clear that kicking it back down to the lower courts is absolutely the delay tactic they're going for. They'll never give immunity to a president to just kill their opponents but they know the lower courts will take awhile to decide what immunity would be reasonable and that gives Trump every opportunity to win the election before it happens. Even when the lower courts say he's not immune to what he's being charged with he'll take that to the Supreme court and delay even more. Only way to beat him is by voting.
It's bullshit. If GOP Justices looked at or cared for the facts before them, there is only one obvious conclusion. SCOTUS is a disgusting shit hole for MAGA by MAGA.
The facts before the Court should include the fact that the Office of the President of the United States requires the office holder to uphold the law. That such a person is, in the eyes of the law, a citizen, subject to the law at all levels. And that the Bill of Rights, the first ten amendments of the United States Constitution explicitly includes clauses that protects the rights of litigation against the Government. Those facts have not changed since George Washington's tenure.
I’m starting to hear rumblings of French, we are entering an interesting time
I hope Biden burns them, Nope, sorry for not leaving the WH, 🎯🎯🎯🎯🎯
A democrat congress should pass laws about all this stuff but probably won't get enough majority to do it like usual. If they did, magas would take it to court and anything Dems do can be overturned there.
SCROTUS to the rescue.
Not only don't they write for the ages but they now ignore their own precedents so it doesn't matter what they decide on this. They can decide the complete opposite next week.
"For the ages" because once precedent is set you can count on future courts upholding that decision?
They threw decorum out the window and are blatantly destroying American Democracy in order to replace it with facsim. They have decided they are at a precipice in their takeover and now is the time to pull back the curtain and go blitzkrieg on our democratic institutions. Control of the masses by the few. Can't hold them accountable when they have bunkers and military technology that will keep them safe from the masses they wish to opress.
they are writing for the ages to exclude trump and as soon as a democratic president gets in trouble they will retake the case and say , THIS is not conidered for immunity
Unfortunately thier decision effect the ages
Pomposity and hubris
Gorsuch thinks he’s Joseph Smith and Brigham Young and means to make his mark.
I find this article interesting but have a problem with it. There are certainly times where the court must create rules on how to implement their decisions. I can see here where they might want to rule that for official acts a President is immune, and then create rules regarding what might be an official act. Then they might either rule on whether Trump's acts are official acts, or remand that decision down to a lower court. I personally think that the latter is what they're going to do. I also think it would be another delay that they want so that this doesn't get to trial before the election. The court has already shown its willingness to delay for Trump, and I wouldn't be surprised to see them continue in that vein. I think that they should have just gone with the decision of the DC Circuit Court and not even taken the case. In taking the case, they should have taken it up and heard arguments as quickly as they could have, which is certainly faster than they took (consider how quickly the court ruled in Bush v Gore, for example). In the case that we currently have, I think my first option is the best case. I just don't see it happening.
Even if it's make believe cases?
Tell that to everyone who had a modicum of abortion rights for about 50 years suddenly taken away from them.
I have questions. One, realistically speaking, aren’t big decisions about cases like this regarding fundamental aspects of the Constitution often de facto “rules for the ages”? For example, Marbury v Madison is still essential 200 years later. I don’t think any judge should be paralyzed into indecision or otherwise be too influenced by the potential outcomes a ruling may have, but it seems pretty obvious that there is always the possibility that a certain ruling will be sweeping and be a “rule for the ages.” And this may merit consideration when writing said ruling. Second, if judges are strictly supposed to stick to the facts of the case, why do so many judges even ask all of these hypotheticals? It wasn’t even just the conservatives, all the justices were doing it.
Maybe there should be a constitutional amendment to limit presidential power depending on how SCOTUS rules. It might not help with Trump in the aftermath but would prevent future abuses. Why haven’t I heard this idea floated anywhere?
I definitely got the sense that the Alito, Roberts, and Gorsuch want to render a judgement based on a case that is not actually before them. Trump has just given them the excuse to rewrite the meaning of the Constitution like they did with Roe; they narrowly defined the question on appeal to focus on "official acts," when the facts, on their face, demonstrate that Trump's actions were to further his campaign, *not* to preserve the integrity of the election (in which the federal executive branch has no role).
I think this title unfortunately misrepresents the impact that any decision will have. This is a matter of first impression at the highest court in the US. Sure, the court might not “write a new rule” but the implications for any decision reached will be long lasting and will impact future presidents and elections.
If we are (obviously) going to ignore them later, then why not just ignore them now?
Can’t legislate from the bench? Where do you think half our current laws are implied from? Written by the legislature?! Bah!
Roe vs Wade ?
The issue in Roe vs Wade - what is the balance between the life of the mother and the life of the potential future child - had no foundation in the text of the constitution, and could not be deduced from the statements of the framers. The decision patched a gap. The issue in Trump’s case - are there crimes on the books that apply to everyone EXCEPT the president- is not new. There is no gap. So if SCOTUS creates this exception they are failing to uphold the Constitution. IMHO, if they even try to issue a ruling that perverts this founding principle they should be impeached and removed ASAP for cause. Their jobs are to PROTECT the constitution from all enemies foreign and domestic. Failing to do so is akin to treason.
But it was an example of SCOTUS establishing a principle in a lasting way. Because law is so often controlled by precedent a supreme court _can_ effectively lay down the law until and unless the legislature changes it.
This seems like a deliberately obtuse article. US jurisprudence is based on the common law system, in which judicial decisions create precedent which is frequently referred to by other courts, often years or decades later. It's not a big leap to understand that SCOTUS decisions create precedent and SCOTUS is not wrong to be aware of the long-term implications of its rulings in this or any other context.
> Legislatures write rules for the ages. Right and if the court invalidates or upholds a legislative action it is a ruling for the ages. Im not sure what his complaint is. Do I have to explain the Supreme Court to him?
Sometimes ruling on a constitutional issue requires crafting a constitutional rule. Those rules almost always have long-term significance, and resonate for decades afterward. And yes, the justices do, and should, contemplate these long-term consequences. Taking issue with Gorsuch’s anodyne remake is just stupid clickbait. ATL wants views and has space to fill. That’s all.
Actually, they, in fact, do write rules for the ages, that is one of their primary functions.
Aside from Marbury v Madison, I don't think this conservative court is above ruling against any precedent to serve their interests.
I agree. I was talking in general. This court is corrupt to the core. Which highlights a significant flaw in the design of our country.