The Troubled SCOTUS--And Our Troubled Constitutional Order

The fact that the SCOTUS, under the shapeshifting 'leadership' of CJ Roberts, is leaking like a sieve and seemingly unable to arrive at principle decisions on important matters comes as no surprise. It's been a long time coming. Professor Josh Blackman addresses the current mess of leaking that has undermined this third branch of our government in an article at Newsweek: A Supreme Court Divided Cannot Stand. John Roberts Must Step up or Step Off. For my own part, I have to question whether the deep philosophical divisions of the country--the fact that the legal establishment is openly at war against what IMO remains a public consensus regarding our constitutional order--may preclude any solution such as Blackman sketches out. For what it's worth, however, and to draw attention to the way in which these philosophical divisions are undermingin the very foundations of our constitutional order, I append some excerpts. Note that Blackman offers "five steps" that he'd like Roberts to take, but I only include four.

I offer these excerpts for two reasons. The first is obviously that they highlight the importance of the upcoming election. It seems that for decades now the SCOTUS has been a constant issue in presidential elections, but increasingly so. The second reason is because the inability--the unwillingness?--of the Roberts Court to enforce any discipline on the Judicial Branch since the inauguration of the Trump presidency may play a role in how AG Barr approaches a DC Circuit that is openly trampling basic Separation of Powers issues.

As I was preparing this post, I received an email from a friend, regarding the Flynn case. I responded, in part:

I agree that what's happening is a blatantly unconstitutional trespass against Executive branch powers. I believe Barr and Trump would be justified in defying the DC Circuit as Andrew Jackson defied the SCOTUS (although I would disagree with Jackson's action). The difficulty in this situation is that such an action would become a major campaign issue, and one that would be difficult for Trump to communicate to the country.  So the timing is tricky. From this standpoint I could fault Barr for failing to act sooner re Flynn. Of course, I don't know what was going on behind the scenes, but my belief is that the action taken could have happened sooner.

Given all that, at this point I see only two options 1) play it out, knowing that Flynn WILL ultimately be exonerated but that his use as a witness may have to wait--possibly past the election, or 2) make an extraordinary appeal to the SCOTUS--which is in a deeply troubled state as it is. If the SCOTUS took such an extraordinary appeal, I believe Barr would prevail--it's hard for me to believe that Roberts would be able to wriggle out of a forthright decision, given Ginsburg's own powerful and very recent opinion on a closely related matter. 

That's part of the problem. Barr appears to be the only person who is in a position to address this. If this were happening against the interests of Dems, you can bet that there'd be a hue and cry. Demands in the House and Senate to rein in an out of control judiciary. We've seen with all the "resistance judges" throwing up dubious restraining orders against Trump initiatives that Trump and Barr can expect no help from the GOP Senate. 

With that, Blackman:

The Supreme Court has turned into a sieve. Last week, CNN reporter Joan Biskupic published a four-part series that revealed the high court's private deliberations. Even worse, the leaks were designed to advance specific narratives about which justices are strong and which are weak. ... There is only one person who can restore order to the Court: Chief Justice Roberts. 

Alas, I doubt the George W. Bush appointee is up to the task. Roberts fancies himself the second coming of the great Chief Justice John Marshall. Not even close. ... Unless he can rise to the occasion, and plug these leaks, the Roberts Court will tear itself apart. A Supreme Court divided cannot stand. If Roberts cannot unite the Court, he must leave it. 

I'm not sure Professor Blackman appreciates the deep historical differences between the time of John Marshall and our current crisis. That, to me, explains what I find to be an air of unreality about his--undoubtedly good faith--recommendations.

Never before has the Supreme Court's cloak of secrecy been lifted so high and so quickly. ... Now we know with intimate details how the justices squabbled over abortion, LGBT discrimination, immigration, Trump's tax returns and more. 

... 

Chief Justice Roberts must do something to stanch these leaks. The Court cannot continue to function as an institution with its members sniping at each other through the press. ... 

That much is certainly true, but the question remains whether the philosophical differences tearing our country apart preclude a functioning judiciary at a constitutional level. Even as we see those differences manifesting themselves at the criminal trial court level.

What should the chief justice do? Here are five steps he can take to bring the Court back in order. 

First, the chief justice must immediately issue a public statement, on his own behalf, about the leaks. He should declare these leaks unacceptable, and announce that he is investigating the breaches of confidentiality. He cannot simply deny reality. The Court needs an emergency tourniquet to stop the bleeding. Roberts has no problem criticizing members of the other branches. He issued a public statement rebuking President Trump's tweet about Obama judges and Trump judges. He condemned Senator Chuck Schumer of New York, the Democratic leader, who said the justices had "released the whirlwind," and "will pay the price" for "awful decisions." And during the Senate impeachment trial, he "admonish[ed]" both Republicans and Democrats to stop using "language that is not conducive to civil discourse." But in his own house, Roberts has failed to enforce any rules of order. The chief justice needs to bring the same moral clarity he brought outside the Supreme Court to his own chamber. 

Regrettably, there is every reason to believe Roberts only favors transparency for the other branches, and not his own. ... 


Second, ... The chief must find a way to get all nine of his colleagues to sign a statement that condemns the leaks, and promises to end them. 

... 

Fourth, Roberts should talk to every law clerk, staff member and employee of the Court, one at a time. Unlike the justices, they can be fired. If any staff members are implicated in leaking, they should be publicly reprimanded. Future clerks need to know there are consequences for such actions—even if a justice authorized the leaks. ... 

... 

So far, I have presumed that Roberts is merely an innocent bystander in this process. ... 

If by next July, Roberts cannot step up to this challenge—either through his own ineptitude or his own malfeasance—then he should step down from the Court. ... 

I can live with Roberts' frustrating legal reasoning—it will have a short shelf-life. 

... 

However, I cannot abide by a crumbling Supreme Court.