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

The #ChiefJustice’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 #ChiefJustice tore into the appellate court opinion greenlighting #Trump’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 #SCOTUS should take the case — which would stall the #trial — 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, #ChiefJustice #JohnRoberts wrote. In other words: grant #Trump greater protection from prosecution.

In a momentous trio of #Jan6 related cases last term, the court found itself more entangled in presidential #politics than at any time since the 2000 election, even as it was contending w/its own controversies related to that day.

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

[#JFC that’s it. #DisbandSCOTUS ]

This account draws on details from justices’ private memos, documentation of the proceedings & interviews w/ #SCOTUS 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 #bias & #corruption]
The #ChiefJustice wrote the majority opinions in all 3 cases, incl an unsigned one in March concluding that #Trump could not be barred from #election ballots in #Colorado.

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

During the Feb discussions of the #immunity case, the most consequential of the 3, some of the *#conservative* 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 #election. But #ChiefJustice #JohnRoberts 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 #Sotomayor, the senior liberal, signaled a willingness to agree on some points in hopes of moderating the opinion….

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

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

#ChiefJustice #JohnRoberts’ opinion cited “enduring principles,” quoted Alexander Hamilton’s endorsement of a vigorous presidency, & asserted it would be a mistake to dwell too much on #Trump’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 #conservatives & #liberals saw it as an epic win for #Trump. He & his supporters exulted over the decision, which greatly expanded presidential #immunity & pushed off any trial until well after the #election —if ever. To #Democrats, the #Republican-appointed #SCOTUS justices were brushing away the #violent Capitol attack & abandoning the core principle that no one is above the #law. The #ChiefJustice, who had long said he wanted to keep the court out of #politics, had plunged it deeply in.

Now #JohnRoberts’ opinion is the key doc in a #legal drama playing out this autumn, as the judge presiding over the long-delayed trial, Tanya S. #Chutkan, parses what the court meant and how to move forward. Legal scholars say her job won’t be easy. Despite the #ChiefJustice’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 #law prof & a fmr clerk to #ChiefJustice #JohnRoberts. “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 #Constitution,” said Stephen R. McAllister, a law prof at University of Kansas & fmr clerk to Justice #ClarenceThomas.

#ChiefJustice #JohnRoberts’s Unsigned Opinion

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

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

#SCOTUS’ #conservative supermajority has prevailed in many of the most consequential cases in recent years. This time, #ChiefJustice #JohnRoberts 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 #Trump should remain on state ballots, 4 of the conservatives were pushing to go beyond that & rule that the #Constitution’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, #Congress would have to vote to enforce the #insurrectionist ban.

That left #ChiefJustice #JohnRoberts 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 #AmyConeyBarrett & the 3 #liberals wrote concurrences saying the majority had gone TOO FAR.

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

#FischervUnitedStates, posed the question: Had prosecutors overreached in charging some #Jan6 *rioters* under a #law 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 #obstructing an official proceeding.

More via the great #AnneApplebaum @anneapplebaum

THE #JUDGES WHO SERVE AT #TRUMP’S PLEASURE

The Founders abhorred a #judiciary more #loyal to the Crown than to the rule of #law. But now the independent system they designed is under #threat.

#GiftArticle
#SCOTUS #PartisanCourt #ActivistCourt #ElectionInterference #illiberalism #criminal #extremism #MAGA #Republicans #neoconservatives #radicalization #bias #corruption #DisbandSCOTUS #FuckSCOTUS #SCOTUSreform
https://www.theatlantic.com/magazine/archive/2024/10/judicial-independence-judge-aileen-cannon-trump/679561/?gift=guxsrl_dAdXUP9zqbQPWxexHkeRx4gmx4koAAe8BeUs&utm_source=copy-link&utm_medium=social&utm_campaign=share

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

A wave of #protest engulfed the colonies. In NC, opponents of the decision spurned the order right up until the outbreak of the #Revolution. 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 #SupremeCourt should have lifetime tenure. NY’s acting gov, Cadwallader Colden, who was sympathetic to the #king, developed a grudge…that turned into what one historian called “almost #psychopathic #rage,”

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

Where did these intense feelings about #judicial #independence come from? A few colonists knew the work of the British political #philosopher #JohnLocke or the French essayist #Montesquieu, esp their writings on … #SeparationOfPowers,

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

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

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

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

Eventually, the Framers of the #Constitution arrived at the system we have today. To preserve #independence, #FederalJudges are nominated by #POTUS but must be approved by #Senate. #Congress sets #judicial #salaries, 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 #misconduct, but this is rare—only 15 federal #judges have been #impeached 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, #Congress has not dissolved #FederalCourts whose #judges displease it—which did happen in the more distant past. The idea of #CourtPacking has been considered out of bounds ever since #FDR tried & failed to reshape #SCOTUS in the 1930s by proposing to appoint up to 6 additional justices.

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

Ultimately, #judicial #independence has a more important protection: the #character of the #judges themselves. They have to avoid #political #influence. They have to base their arguments in the #law. They have to at least TRY not to do the bidding of a #president or #governor. This might be the most important convention of all.

Although fears of a #politicized #US #judiciary 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 #social or #political #change—Americans in the modern era have generally assumed that #judges appointed to the highest courts will act in #GoodFaith.

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