Monday, August 3, 2020

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. 


  1. Good post! J. Roberts reminds me of the Richard Sherman role in the movie Seven Year his mind he's the super suave, Rachmaninoff-playing, debonair seducer, but to the rest of us, he's a bumbling goof with wild daydreams. I can picture J. Roberts thinking he's up in the leagues of the Marshall, as important as Lincoln, etc., and thinking about the profound effect he'll have in history...but, in the meantime many think he can't even do a workmanlike job drafting a solid, sensible opinion in a single case. You'd need the diagram for the windmill he's jousting to really appreciate how wonderful he is!

    He's also a vacuum in a spot that requires strong leadership, which leads to the problems discussed above. Nature abhors that- see good blog post above... But I'm sure he thinks 'his' style of leadership is the ne plus ultra that puts him in lofty heights...

  2. Blackman's article begs the question. For it to make sense, we have to implicitly accept the premise that CJ Roberts isn't the leaker.

    1. From the article:

      "So far, I have presumed that Roberts is merely an innocent bystander in this process. Of course, there is the possibility that Roberts himself spoke to the press, or authorized others to do so on his behalf. If he did, the chief justice cannot lead by example. Here, the fish would rot from the head. If the justices know the chief is leaking information, they can be expected to respond in kind to get their own stories out. And Roberts would be in no position to lecture others."

  3. "immediately issue a public statement, on his own behalf, about the leaks."
    Were he to do that, he'd move this issue, from its current state (of mattering only to afecionados of inside baseball), into the most famous non-ruling in history.

    Were these leaks to have involved classified nat. security dope, he'd likely need to move, lest key DS players get tempted to go nuclear on that problem.
    As long as it's just domestic issues, he'll let the afecionados twist in the wind.

  4. Leaks are the order of the day. Trial by public is just another lynch mob.

    Considering Federalist # 78, the judiciary, the purposely designed weaker leg of the triad and an “intermediate body between the people and the legislature“ with the people being superior, the juridical leg should be independent and circumspect.

    As expressed by Publius, the fear is a judiciary in league with another branch.

    The Constitution is sacrosanct, yet, admittedly, imperfect and subject to interpretation. However, the Constitution is the basis of all thought of law to be considered by the judiciary. Today, no, for a long time, the judiciary as constituted in the Supreme Court has allowed foreign thoughts on law to guide it’s decisions. Yes, the Constitution is not sacrosanct using this expansive view.

    Regarding Chief Justice Roberts, how do you govern such a body? This is not a defense of him, but a an injection of reality.

    Post-constitutionalism is real and has been in effect for a long, long time.

    T anna D

  5. IDK; I don't find Roberts to be a stand-up guy. I see him as one who avoids personal conflict for the most part regardless of the "noise" created by the leaks... in hopes that it will eventually die down or go away. He's not a pro-active person IMO. It's a shame he's in that position.

    1. Looking from the outside in, I'd say anyone that undermines the English language to give one side a victory (Obamacare) is proactive...


  6. Is there a reason the CNN "reporting" is to be believed? It seems to me MSM is continually engaged in developing The Narrative, which is about shaping public opinion, not reporting the news, or even the "news."

    I don't see how prior blatant lies and fake news can be overlooked--and then take this "reporting" as straight. There's no credibility, and no integrity left in the MSM. And CNN is one of the chief purveyors of fake news.

    Gell-Mann amnesia effect takes hold.