A Quick And Dirty Guide To SCOTUS Malarkey In The Trump Immunity Case

INSIDE: ACB ... Rudy G ... George Washington
UNITED STATES - JANUARY 30: Supreme Court Chief Justice John Roberts listens to President Donald Trump's State of the Union address to a joint session of Congress on January 30, 2018. (Photo By Tom Williams/CQ Roll Call)
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Decoding The Cloaked Language Of The Supreme Court

While we await the Supreme Court’s decision on Donald Trump’s claim that he enjoys presidential immunity from prosecution, let me run through the various forms of disingenuousness to be on the look out for when the ruling eventually comes down. That could be as soon as this morning, or as late as early July. If the court’s slow-rolling of the case thus far is any indication I would expect it later than sooner. But your guess is as good as mine.

Before we get to the fun stuff, it’s important to acknowledge that while Trump’s claim of more or less absolute immunity is completely bogus and detached from the reality of the Constitution, history, and legal precedent, some form of lesser immunity for the president is not on its face ridiculous or absurd.

What gets tricky in the Trump case is that the more the Supreme Court decides to explore and weigh in on lesser forms of immunity (rather than saving that for another day given that immunity for unlawfully remaining in office past the end of the president’s term is out of the question), the greater the chance that it creates insurmountable obstacles to holding a Trump trial before the election. It already has made such a trial nearly impossible. So while in the abstract, a fulsome exploration of presidential immunity could be warranted, it also runs the risk of being a smokescreen.

With that out of the way, here are some of the tells that commonly pepper controversial rulings and the multiple competing opinions they often yield:

Raising The Specter Of Chaos As A Strawman. Many judges, especially conservative ones, fancy themselves as bastions of stability and order amidst universal chaos. That creates all sorts of weird incentives and outcomes, but in controversial cases (see, e.g., Bush v. Gore), judges will decry the prospect of chaos as a justification to take extraordinary steps that defy precedent, stretch legal arguments beyond reason, and achieve desired outcomes. Beware of warnings of hypothetical chaos.

Oversimplifying Complex Issues By Claiming Some Things Are “Obvious.” Often the most glaring sign of a poorly reasoned decision reaching for a preferred outcome is when a judge declares “obvious” things that are clearly not obvious but have the effect of walling off disfavored outcomes right off the bat. Think of it as defining away the problem. In the immunity case, it might look like, “Obviously, the president is entitled to some immunity, so we must decide the scope and extent of that immunity.” Things are rarely obvious in Supreme Court cases, and the more a judge protests that they are, the more suspicious you should be.

Whinging About Being Stuck With A Hard Decision. The whinging is a tell because it often ends up with the judicial branch blaming others (usually, the executive and legislative branches) for making it do its job. Elevating how difficult the decision is, like raising the specter of chaos, is another way of enlarging the rhetorical space in which to deviate from precedent and norm, reach for a decision you want to make anyway, and excuse yourself from having done anything out of the ordinary.

Butchering History. Others have written at length about judges vastly overestimating their skills as professional historians, leading to cherry-picked historical artifacts as justifications for today’s decisions. So you get the gist. The immunity case is ripe for butchering history. But beyond the immediate problems with bad misinterpretations of history is that it lends itself to all of the above tells, too. A case with “great” historical significance can be used in the same way as invoking the specter of chaos to enlarge the options available to the court for doing what it wants to do. Many recent decision have declared historical facts to be “obvious” that are anything but. And many Supreme Court decisions that rely on historical interpretation note how difficult it is to parse history before proceeding to do it anyway, the whinging about the difficulty scale providing another way out to do the thing it wants to do anyway.

There are others, but that’s probably a sufficient cheat sheet for the immunity case. Now we wait. For how long, no one outside the court knows.

SCOTUS Decisions Coming Today And Tomorrow

Still a huge number of Supreme Court decisions to be issued before the end of the term, so expect a flood over the next two weeks. Decisions will be coming at 10 a.m. ET today and tomorrow.

Keep An Eye On Amy Coney Barrett

Supreme Court Justice Amy Coney Barrett has already shown signs of taking a different path as a jurist than had been expected. What we’re seeing doesn’t neatly fall into a liberal v. conservative analysis or originalist v. not originalist prism. It’s more subtle and complicated than that. Some of it I suspect is merely generational, but either way I think it’s too early to label it. Still, it’s worth keeping an eye on.

Here are two installments in the early effort to figure out what she’s doing and why, both tied to a recent Supreme Court decision in a trademark case:

  • Politico: Amy Coney Barrett may be poised to split conservatives on the Supreme Court
  • The New Republic: Amy Coney Barrett Breaks With Supreme Court Originalists

Rudy Rudy Rudy, Tsk Tsk Tsk

TPM’s Josh Kovensky: Rudy Giuliani Is Running The Risk Of Blowing Up His Own Bankruptcy Case

Great Read

WSJ: This Judge Made Houston the Top Bankruptcy Court. Then He Helped His Girlfriend Cash In.

Expecting A Recount In VA-05

Since we checked in yesterday, the tiny lead that state Sen. John J. McGuire III (R-VA) holds over Rep. Bob Good (R-VA) in the GOP primary in the VA-05 has narrowed from 327 to 321 votes. A GOP-on-GOP recount between two MAGA-loving Trumpists in the Big Lie era is gonna be a hoot. Pull up a chair and pass the popcorn.

2024 Ephemera

  • Fox News poll: In a hypothetical two-candidate race, Biden leads Trump among registered voters nationwide 50%-48%, a three-point swing since last month.
  • NBC News: Mystery fundraising firm takes in millions from the Trump campaign
  • Confirmed: The qualifying deadline for the first presidential debate next Thursday has passed and no one qualified other than Biden and Trump.

TPM In The News

Rick Perlstein has a new piece up at The American Prospect about TPM that includes an interview with Josh Marshall:

If you are interested in how the American right went insane, TalkingPointsMemo.com is your actual publication of record, compiling a bountiful archive of the ways “extremism” and “mainstream” merged in the history of the Republican Party from the dawn of President George W. Bush to the present. It was born, in 2000, at a time of new vessels and styles of writing about American politics. It could have become a model for the rest of the news media. It did not.

All in all, Rick offers a distinct take on TPM’s history.

Abortion Watch

  • WSJ: Abortion-Rights Advocates Deploy a New Red State Playbook
  • WaPo: Democrats seek to repeal Comstock abortion rule, fearing Trump crackdown

Ready-Made For A Lawsuit

Louisiana has enacted a new law requiring the 10 Commandments to be displayed in all public school classrooms. The ACLU has already announced that it is suing to block the law as a violation of the Constitution.

Not Something You See Every Day

A Vermont Republican lawmaker who was surreptitiously recorded repeatedly pouring water into a Democratic colleague’s tote bag – tormenting behavior that went on for five months – has apologized for her “disrespectful conduct.”

Love This So Much

Credit: AP/YouTube

A restoration project at George Washington’s Mt. Vernon has unearthed from its cellars 250-year-old jars of preserved fruit.

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