4548

Needless to say, the court will only use this newfound power to stop the government from doing things like preventing climate catastrophe, having fair elections, or interrupting the flow of all wealth, power, and rights to a handful of Republican doners.

They will leave in place all rules that the government uses to jail brown children, punish political enemies with the power of the Justice department, and engage in nonstop profiteering from high office.

4549

Good piece highlighting that the Court is basically always conservative. I guess the process of putting people on the Court more or less produces justices who side with conservative ideals - i.e. the preservation of elite power and privilege.

http://www.lawyersgunsmoneyblog.com/2019/07/the-warren-court-of-the-60s-was-a-massive-historical-outlier

4550

My guess is that Trump is trying to figure out if he can issue the Census with the Citizenship Question, and then issue Presidential Pardons to anyone who gets in legal trouble. It seems to be the kind of thing Trump would love.

4551

ISTM that the government lawyers here are ignoring Roberts’ opinion. He told them they had to go back to the trial judge and provide the real justification for adding the question. They’re talking about thinking up another reason (therefore another pretext) and offering it to SCOTUS.

I don’t think SCOTUS will listen. They’ve already ruled on the case and remanded it back to the trial court.

And Roberts has basically framed the task in a way that the government can’t win. Everyone knows that strong evidence shows the real reason for the question is to suppress minority votes. If the government offers any reason other than that, it is a lie — another pretext — and everyone knows it, and they fail to convince the judge they’re telling the truth. On the other hand, if they offer the truth, it’s an Equal Protection violation, and the trial court is free to find that.

I guess the government lawyers have figured that out, but Trump hasn’t. Of course the real question is, what if they just ignore the whole thing and add the question anyway?

4552

At least as far as I can tell from Scotusblog, they’re only (at this stage) asking the Supreme Court to provide instructions for the trial judge.

4553

Ah. I wasn’t able to get even that much clarity from the transcript of the hearing yesterday.

4554
4555

This is an interesting take on Roberts’ surprising opinion in the Census case and what it might mean for the Court.

It’s maybe too much to be hoped for, but if Roberts could be pushed to some kind of judicial sanity by irritation at being treated like an idiot by the administration, that would be a good thing.

4556

Heh, we’ll see. This is the guy who developed the doctrine that some obscure law from 1925 could conveniently (for big business) be applied to most “take it or leave it” consumer contracts in existence and got rid of the legal right for them to sue in a class action. He knew what he was doing: protecting the powerful.

4557

I don’t expect him to stop protecting the powerful. He’s a conservative, and that’s what conservativism is. On the other hand, if he has a natural resistance to being treated like a fool or a lackey, and that natural resistance flares up in positive ways, I’d welcome it.

4558



4559

At least their Holiday weekend was mostly ruined in the process.

4560
4561

One of the Twitter commentors in Rick Hasen’s Twitter feed put it this way: ‘Did they walk around Main DOJ with scooper full of poop and just ask, “Whose gonna handle this for us in return for a cushy no-show job at a conservative think tank next year? And short-listing for the bench someday?”’

I’ve seen my share of scooper-full-of-poop legal assignments in my day but this one might be at or near the top.

4562

John Paul Stevens has passed away.

4563

Under what circumstances would someone have the standing to challenge the DOJ opinion that a sitting President cannot be indicted? And who would have that standing?

I ask because it seems to me that this policy spells real trouble for the future. It was bad enough before, when most Presidents felt obliged to comply with basic norms, and when, on the occasions when they didn’t — Nixon comes to mind — the members of Congress from their own party felt obliged to at least threaten action.

It’s worse now, however, because it is clear that the members of at least one party, if not actually both, do not feel obliged to comply with any norms except insofar as those norms align with their own ambitions. In those circumstances, the DOJ policy has to go, and that probably means it has to be invalidated as a form of legal reasoning.

It won’t be enough for a new President to take power and then try to force the DOJ to reverse the policy, for two reasons: First, no President is likely to ever do that, whether for good reasons or craven ones. And second, any policy voluntarily reversed can be voluntarily reinstated by a different President later.

So, who is challenging it? Who can, under the law?

4564

IANAL, but I believe the DOJ sets the policy for prosecution, so it’s kind of like asking who’s the Supreme Court for the Supreme Court. There’s Congressional oversight and also the Inspector General, but that’s distinct from setting policy.

4565

Ultimately, Congress can. For instance, they could pass a law that prevents special prosecutors from treating the president differently than anyone else.

4566

Great point

4567

I am a lawyer, and this is correct. Prosecutions are an executive branch function, and the executive can exercise discretion as to what crimes are prosecuted.

Your remedies for a criminal President under the Constitution are impeachment, or more generally Congress refusing to work with the President to enact an agenda. I know that doesn’t do anything to stop the problem you have identified, but it is how the Constitution is designed.