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PaperclipPerfector  5mo ago (text post)   23799 thread views

Culture War Roundup for the week of June 17, 2024

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Is there any decision the District of Columbia Court of Appeals could have issued that SCOTUS would not have granted cert on?

Yes, probably. The Roberts faction on the court absolutely doesn't want to have to wade into Presidential immunity questions unless they're forced to, but the lower opinion here is incredibly broad, completely dismissing virtually any Presidential immunity from (federal) criminal prosecution, and that was condoned by the appeals court. I'd find it funny, in a number of ways, were it to actually become the standing law, but it's as close to forcing SCOTUS to handle matters as possible.

That still doesn't explain the slow walk, though. The DC opinion was so broad that all SCOTUS has to do is what they're probably going to do anyway — issue an opinion that recognizes immunity in certain circumstances but not others and then kick the case back down to the trial court without saying anything about the facts of that particular case. Then the trial court's ruling gets appealed and the high court doesn't have to rule on it until next year.

It's more likely that they're just running behind. I don't think anyone has any theories on why the other 17 cases are taking so long.

If you expect a glorified GVR or per curium (or even a per curium-with-dissentals), perhaps, but I'll put money that SCOTUS will be doing a good deal more than that. Punting the case back to a lower court without seriously delineating the bounds of any immunity risks the matter popping right back up in a way that they still can't ignore, possibly before the election even if the trial itself wouldn't have gotten out before then anyway. Trump (or Smith) will appeal regardless, but the part where we're here because multiple different federal judges couldn't forsee any problems with papering over limits on prosecution of a former President with "prosecutors themselves are constitutionally bound to not abuse their office" (and somehow managed to avoid laughing).

For contentious issues and conventionally-argued questions, there may not even be an clear boundary of the decision for months after oral arguments. And I fully expect Roberts will be trying til the last second to try to fumble together a 'bipartisan' consensus.

I do agree other causes are part of the generally slower pace -- court-watchers regularly point to increased security procedures post-Dobbs-leak as part of a trend of slower, later opinions. I just can't come up with an explanation for why people expect a complex issue that was argued near the end of the last session to be more heavily prioritized other than the political ramifications, and they're not even good political ramifications.

I wasn't trying to imply that. I think they will delineate limits but I'd be surprised if they get into specifics. Trump's argument is that he's entitled to absolute immunity, and I doubt the justices would go for that. I also doubt they'll let the circuit court decision stand, which means that they're going to have to delineate the bounds of presidential immunity. The problem is that,.since no alternate standard was proposed, neither side has made substantive arguments under that standard, and the current court has been reluctant to make substantive rulings based on arguments the parties didn't make. I'm not saying that they'll punt, just that any decision they give isn't likely to change much in the short term.

I think the defense basically conceded that acts while President while not acting qua president are not entitled to immunity. Other acts are unless there is impeachment and conviction. I suspect that is what the court will decide.

I am not convinced. As best I can tell the court of appeals is correct that there is no precedent for criminal immunity for the president. Even if they had decided to make up some line I'm skeptical the line they made up would be one that satisfied 6/9 of the justices on the Supreme Court.

As best I can tell the court of appeals is correct that there is no precedent for criminal immunity for the president

And where once the closest thing to a serious criminal prosecution of a president was a speeding ticket, now there's precedent saying there is zero criminal immunity for anything.

Even if they had decided to make up some line I'm skeptical the line they made up would be one that satisfied 6/9 of the justices on the Supreme Court.

I'm skeptical that Roberts, Barrett, and Gorsuch would have jumped at an interlocutory appeal had the lower court precedent not writ destiny that they'd be seeing two or three Presidents facing criminal charges within their remaining terms.

I'm curious what you think the content of the circuit's decision would be so that SCOTUS doesn't grant cert.

If the circuit says "there exists some presidential immunity for constitutionally granted powers but Trump's conduct is outside that" do you think they grant cert?

I think a district court opinion that actually tries to separate individual official acts from those of a private actor or political candidate, and recognizes the extent various immunities are intended to protect the papers and deliberations of official acts, would made it much harder from Trump to get cert. A lot of courtwatchers who like Trump even less than I do take that tack.

There's no guarantees, but without that blanket permission slip for charging every other living President, there's just nowhere near the urgency. Whether criminal or not, the majority of acts in the indictment here fall outside of the outer bounds of the President's roles, some even by Trump's own defense's own admissions. There's none of the time pressures that were present for the ballot rules, so on. I don't think it would have been good to punt, but this court absolutely is willing to punt whenever possible.

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