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, seeking to retake the , had made a bold, last-ditch appeal to the justices. He wanted them to block his fast-approaching trial on charges of attempting to overturn the 2020 election, arguing that he was protected by presidential . Whatever move made could have lasting consequences for the next , the scope of presidential & the court’s own battered reputation.

The ’s Feb 22 memo, jump-starting the justices’ formal discussion on whether to hear the case, offered a scathing critique of a lower-court decision & a startling preview of how the high court would later rule, acc/to several people from the court who saw the document.

The tore into the appellate court opinion greenlighting ’s trial, calling it inadequate & poorly reasoned. On one key point, he complained, the lower court judges “failed to grapple w/the most difficult questions altogether.” He wrote not only that should take the case — which would stall the — but also HOW the justices should DECIDED it.

“I think it likely that we will view the separation of powers analysis differently” from the appeals court, wrote. In other words: grant greater protection from prosecution.

In a momentous trio of related cases last term, the court found itself more entangled in presidential than at any time since the 2000 election, even as it was contending w/its own controversies related to that day.

responded by deploying his to STEER RULINGS that BENEFITED , acc/to a NYT examination that uncovered extensive new info about the court’s decision making.

[ that’s it. ]

This account draws on details from justices’ private memos, documentation of the proceedings & interviews w/ insiders, both conservative & liberal,who spoke on the condition of anonymity because deliberations are supposed to be kept secret. [I thank them for providing evidence of such blatant & ]
The wrote the majority opinions in all 3 cases, incl an unsigned one in March concluding that could not be barred from ballots in .

Another case involved a highly unusual switch. In April, the assigned Justice to write a majority opinion saying that prosecutors had gone too far in bringing obstruction charges against some Capitol *rioters* []. But in late May, took it over.…

During the Feb discussions of the case, the most consequential of the 3, some of the ** justices wanted to schedule it for the next term.

That would have deferred oral arguments until Oct & almost certainly pushed a decision until after the . But provided crucial support for hearing the historic case earlier, siding w/the liberals.

Then he froze them out. After he circulated his draft opinion in June, Justice Sonia , the senior liberal, signaled a willingness to agree on some points in hopes of moderating the opinion….

Though the often favors consensus, he did not take the opening. As the court split 6 to 3, vs , Justice started work on a 5-alarm dissent warning of to .

In his writings on the case, seemed confident that his arguments would soar above , persuade the public, & stand the test of time. []

’ opinion cited “enduring principles,” quoted Alexander Hamilton’s endorsement of a vigorous presidency, & asserted it would be a mistake to dwell too much on ’s actions. “In a case like this one, focusing on ‘transient results’ may have profound consequences for the separation of powers & for the future of our Republic,” he wrote. “Our perspective must be more farsighted.”

…Both & saw it as an epic win for . He & his supporters exulted over the decision, which greatly expanded presidential & pushed off any trial until well after the —if ever. To , the -appointed justices were brushing away the Capitol attack & abandoning the core principle that no one is above the . The , who had long said he wanted to keep the court out of , had plunged it deeply in.

Now ’ opinion is the key doc in a drama playing out this autumn, as the judge presiding over the long-delayed trial, Tanya S. , parses what the court meant and how to move forward. Legal scholars say her job won’t be easy. Despite the ’s reputation as a methodical craftsman, many experts, both conservative & liberal, say he produced a disjointed, tough-to-interpret opinion.

“It’s a strange, sprawling opinion,” said William Baude, a University of Chicago prof & a fmr clerk to . “It’s hard to tell what exactly it is trying to do.”

Others said the ruling was untethered from the law. “It’s certainly not really tied to the ,” said Stephen R. McAllister, a law prof at University of Kansas & fmr clerk to Justice .

’s Unsigned Opinion

…In Feb, the justices heard arguments on a provocative question. The ’s , adopted after the Civil War, contains language barring from holding office. So could kick off the ballot in its primary, creating an obstacle for his presidential campaign?

From the start of the justices’ private discussions of the case, , it was clear that the court was going to say no…. Allowing states to excise candidates from ballots in a national was out of the question, the justices agreed. With sparse & cryptic text in the amendment, & little case , to guide them, they raised various ideas for the court’s ruling & rationale.

supermajority has prevailed in many of the most consequential cases in recent years. This time, told his colleagues he wanted the decision to be unanimous & unsigned. In any politically charged case, agreement among the justices made the decision more authoritative. He even said he would consult individually w/everyone to discuss what they would accept — a rare step.

While all 9 justices agreed that should remain on state ballots, 4 of the conservatives were pushing to go beyond that & rule that the ’s prohibition would require congressional action. Such a decision would provide even greater protection for Trump: To prevent him from taking office if he won re-election, would have to vote to enforce the ban.

That left in control of the outcome. He LINGERED over the choice…. Ultimately, he sided w/the 4 conservatives in an opinion that he wrote but that was issued unsigned. Justice & the 3 wrote concurrences saying the majority had gone TOO FAR.

The case w/the potential to undermine charges against , spurred behind-the-scenes footwork by the justices, incl the mysterious reassignment of a majority opinion.

, posed the question: Had prosecutors overreached in charging some *rioters* under a originally aimed at white-collar crime? Of the ~1,500 people who had been indicted in the Capitol attack as of June, when Fischer was decided, ~250 cases included a charge of an official proceeding.

In Dec 1761, King George III dispatched an order to the American colonies. In a recent defiance of convention, some American colonial had been appointed for life, the same tenure that British judges enjoyed. Now the intended to make it clear that all colonial judges were to serve only “at the pleasure of the crown.”

A wave of engulfed the colonies. In NC, opponents of the decision spurned the order right up until the outbreak of the . In NJ, the gov disobeyed it & was promptly removed from office. In NY, the colonial assembly continued to argue that judges on its colony’s should have lifetime tenure. NY’s acting gov, Cadwallader Colden, who was sympathetic to the , developed a grudge…that turned into what one historian called “almost ,”

ending w/him accusing of seeking to “obtain a most extensive over the Minds of the rest of Mankind.” 4yrs later, a angered by unfair taxes…hanged Gov Colden in , smashed…his coaches, & threw the bits of wood into a huge bonfire….

Where did these intense feelings about come from? A few colonists knew the work of the British political or the French essayist , esp their writings on … ,

[okay @anneapplebaum ’s writing is just beautiful, glorious in its accurate historical references & pure lyricism]

which gives different branches of the ability to check & balance one another, preventing any from accruing too much . But most people, probably including the that burned Gov Colden’s carriages…, wanted for the same reason they wanted a : instinctive resentment of distant, arbitrary, illegitimate royal .

That instinct stayed w/them. In #1776, the accused the of having “made dependent on his Will alone, for the tenure of their offices, & the amount & payment of their .” A decade later, delegates to the Constitutional Convention of 1787, although bitterly about many things, stayed on the need for federal judges.

One SC delegate to the convention thought ’ salaries should be high, to attract “men of the first talents.” worried that if could raise & lower salaries at will, then judges might be hesitant to rule against members of . To solve this problem, he suggested pegging salaries to the price of wheat “or some other thing of permanent value.”

Eventually, the Framers of the arrived at the system we have today. To preserve , are nominated by but must be approved by . sets , which cannot be reduced. Judges have lifetime tenure, so they don’t fear that they will be removed for any particular decision. They can be impeached by Congress for , but this is rare—only 15 federal have been since 1789, all but 5 of them before 1937.

But in practice, they are also constrained by norms & conventions. Since the early 20th century, for instance, has not dissolved whose displease it—which did happen in the more distant past. The idea of has been considered out of bounds ever since tried & failed to reshape in the 1930s by proposing to appoint up to 6 additional justices.

Since 1957, when Dwight Eisenhower sent federal troops to Arkansas, to enforce , powerful have mostly agreed to honor & enforce the decisions of , a convention that had been flagrantly defied by several southern governors of that era. (It had been defied earlier, too, by President , who, when ruled in 1832 that treaties made w/the Cherokees must be respected, was alleged to have said, “Let him enforce it”…)

Nonilex

Ultimately, has a more important protection: the of the themselves. They have to avoid . They have to base their arguments in the . They have to at least TRY not to do the bidding of a or . This might be the most important convention of all.

Although fears of a date back to the fights between the Federalists & the Jeffersonian Republicans in the very early days of the republic—& although they have reemerged at just about every important moment of or —Americans in the modern era have generally assumed that appointed to the highest courts will act in .

The political philosophers of the early republic, the authors of the , & the -school professors of the present day have all mostly assumed that federal judges will strive, in the words of Alexander , to “unite the requisite integrity with the requisite knowledge.”

@Nonilex and there's some saying about "assume" that is not highly complementary, IIRC