Why You Can’t Call The Roberts Court ‘Conservative’ Any Longer

INSIDE: Donald Trump ... Steve Bannon ... Joe Biden
WASHINGTON, DC - JANUARY 31: U.S. Supreme Court Justice John Roberts arrives at the U.S. Capitol for the Senate impeachment trial of U.S. President Donald Trump, on January 31, 2020 in Washington, DC. Today Senators ... WASHINGTON, DC - JANUARY 31: U.S. Supreme Court Justice John Roberts arrives at the U.S. Capitol for the Senate impeachment trial of U.S. President Donald Trump, on January 31, 2020 in Washington, DC. Today Senators are expected to debate and then vote on whether to include additional witnesses and documents. (Photo by Mark Wilson/Getty Images) MORE LESS
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The most consequential decision yet from the six-justice Roberts supermajority was sandwiched between President Biden’s debate pratfall Thursday night and this morning’s Supreme Court decision on former President Trump’s immunity from criminal prosecution. So before it gets wiped clean from the front pages, I want to just take a moment before the immunity decision comes down to re-cast the current court.

The Supreme Court’s decision Friday to overrule Chevron will have vast consequences, many of then unseen or hard to detect, but one of the things we were discussing internally Friday as we assessed the Supreme Court’s term and its four years with a 6-3 conservative supermajority is how the defining characteristic isn’t conservatism at all but the accrual of power to the judiciary at the expense of the executive and legislative branches.

Rather than taking a conservative view of the role of the courts – a modest, humble, restrained posture that is wary of its own power and applies it carefully – the Roberts supermajority has taken a radical course where the judiciary is increasingly the final arbiter not just on the law but on the facts, the interpretation of those facts, the application of those facts in given situations, and the technical, scientific, and professional implications of those facts in the real world.

There’s nothing conservative about it, and you only have to look to conservatives’ exact same complaints about the Warren and especially the Burger courts to see the obvious. We’ve taken to calling the court “right wing” rather than conservative because it’s a more precise description (though it’s still a pretty blunt term). Rather than being driven by a guiding conservative judicial philosophy, however odious it might have been, the current Supreme Court is most consistent when it comes to consolidating power for itself. For more on this:

  • Lisa Needham: SCOTUS completes the biggest power grab in modern US history
  • Kim Wehle: The right-wing Court just made another massive power grab
  • Judd Legum: Supreme power grab

Trump Immunity Decision Coming From SCOTUS This Morning

Today is the final day of announced decisions by the Supreme Court before it breaks for the summer. The big remaining case for our purposes is the Trump immunity case that is blocking/slow-rolling his prosecution in the Jan. 6 case in DC.

The Supreme Court convenes at 10 a.m. ET. It has more than one decision to issue today; if I had to guess, I would say the immunity decision will be the final one in that batch, both because of its significance and because it was the last case in which the court heard oral arguments this term and because Chief Justice John Roberts is expected to author it.

Please join us for live coverage this morning as we make sense of the immunity decision and its implications for the timing and direction of the Jan. 6 case against Trump.

In the meantime, I’d refer you to what I wrote a few days ago about the various forms of disingenuousness to be on the look out for from the justices when the immunity ruling comes down.

Not Many Clues From SCOTUS’ Other Jan. 6 Decision

An unusual lineup that saw Justice Ketanji Brown Jackson join the right-wing majority and Justice Amy Coney Barrett defect to write a dissent with Justices Elena Kagan and Sonia Sotomayor produced a decision that narrowed the application of a key obstruction statute used in the prosecution of Jan. 6 rioters.

The opinion didn’t provide much in the way of hints on the how the court would come down in the immunity decision. As for its implications for the Trump prosecution, it doesn’t seem as dire as initially feared when the court took the case, but the real-world impacts are going to take some time to watch play out.

How The Criminal Justice System Works For Non-Trumps

Radley Balko:

As someone who writes and reports on those everyday abuses, it’s been especially surreal to hear these typically wealthy, often very powerful people simultaneously claim that police, prosecutors, and courts are unfair and biased against them and far too permissive and lenient with everyone else.

The truth is that Trump has been getting the criminal justice system’s “platinum door” treatment from the start. His cases are unusual in that he’s a former president. But his status and political position have helped him far more than they have hurt him.

Balko is essentially putting some meat on the bone of Wilhoit’s law.

Steve Bannon To Prison

Former Trump campaign manager and White House adviser Steve Bannon is set to report to federal prison today to begin serving a four-month sentence for contempt of Congress for his refusal to comply with a subpoena from the Jan. 6 committee, after the Supreme Court Friday rejected Bannon’s last-ditch appeal.

Trump Prosecution Miscellany

Sweeping up some of the developments from late last week that got swamped by the presidential debate:

  • MAL: U.S. District Judge Aileen Cannon rejected Donald Trump’s claims that the FBI misled the court to obtain the search warrant for Mar-a-Lago, but in the same order she called for two bizarro evidentiary hearings on other specious pre-trial claims by Trump that will continue to drag the case out at a snail’s pace.
  • MAL: Cannon still hasn’t ruled on Special Counsel Jack Smith’s motion to modify the terms of Trump’s release to prevent him from savaging federal law enforcement. Instead, she gave both sides until Friday to file yet another round of briefs on the matter.
  • GA-RICO: Former Trump White House Chief of Staff Mark Meadows has been involved in a quiet legal battle to obtain from the National Archives documents from his time in the West Wing to use in his defense of the criminal charges in the Georgia RICO case. That effort spilled into public view last week for the first time.

Good Read

Greg Sargent: Trump’s Shameless, Corrupt Wooing of Plutocrats Is Suddenly Backfiring

Where Does Biden Go From Here?

Round II of post-debate analysis:

Debate Fallout: How The Bigs Are Covering It

  • CNN: Democrats fear replacement scenarios as much as keeping Biden
  • Politico: Biden’s family privately criticizes top advisers and pushes for their ouster at Camp David meeting
  • NYT: Biden’s Family Tells Him to Keep Fighting as They Huddle at Camp David
  • AP: A private call of top Democrats fuels more insider anger about Biden’s debate performance
  • Politico: Whitmer Disavows ‘Draft Gretch’ Movement

Oklahoma Follow Louisiana’s Lead On Bible In Classroom

Whereas Louisiana passed a law requiring the Ten Commandments be posted in every public school classroom, Oklahoma’s state superintendent of public instruction took it upon himself to order that the Bible be taught in public schools.

The Stunning Collapse of New York’s Congestion Pricing

WSJ: “The epic collapse in New York shows how a fear of dramatic change can give the status quo stubborn power over those trying to solve some of America’s most intractable challenges. That leaves policymakers nibbling at the edges of deeply rooted problems, even after investing huge sums of money and political capital.”

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    Graham: Does Iran get a nuclear weapon because they think Joe Biden’s so compromised, he’s not going to do anything about it?

    If only Biden hadn’t trashed the agreement which limited Iran’s ability to produce fissionable material . . ., oh, wait . . .

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