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Great thoughts and great read. A lot of work! My initial two reactions to the decision were basically, 1) the whole thing about official acts not being able to be used as evidence just seems so... flagrantly stupid? Despite the rest seeming reasonable. I viewed this as an explicit help-Trump flag rather than a genuine desire to get at the law. And after thinking about it a little more and reading the arguments, 2) yeah, under this majority arrangement, bribes for pardons is... almost bulletproof legal, or de facto absolutely non-prosecutable, which is absolutely batshit crazy. I mean, I'm sure they felt that pardons were enough of a 'different topic' that maybe they didn't want to touch that hot potato, but it seems strange to discuss the whole issue of presidential criminality without talking about it. And it's even more aggravating that bribes for pardons is most likely to occur at the end of a President's term, when impeachment basically is not on the table anymore, at least according to a number of arguments we heard back around Trump's impeachment.
I'm impressed by Barrett in her time on the court so far. Not knowing how the Court decisions work exactly, are judges allowed to hew directly to Barrett's view, since without her there is no majority opinion?
It's not flagrantly stupid. It's the Court reacting to factors that this particular Court usually pretends does not exist -- that lower courts and prosecutors will simply ignore, deliberately misinterpret, and work around its decisions, and that juries may be politically biased:
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Yeah, I'm kind of worried that that was a motivation, but I'm not sure. I know the evidence was talked about at the oral arguments, but surely it shouldn't have been enough to get five justices to sign onto it, with that level of reasoning? I imagine there was some cajoling to get what level of agreement they had.
My question about pardons was closer to that if pardons are one of the core powers, over which the executive has conclusive and preclusive authority, as the majority says, wouldn't that mean that he would be absolutely immune from criminal prosecution (but not impeachment) in the exercising of that power? But it's more complicated than that, as Barrett and Roberts have an exchange (page 6 or so for Barrett and maybe 32 or so for Roberts, if memory serves me) over bribery, where he thinks pointing to the record of the official act would be permitted? I really didn't understand what he was saying there. But it seems like he considers bribery distinct from the act itself.
I've also been impressed by Barrett. She's more principled than Kavanaugh and Roberts, is good at statutory interpretation, and I think I also like her approach to originalism and history the best out of the justices.
Joining her opinion: yes, you can join concurrences. In this case, the main effect of that, assuming the sets of things they joined was the same as her, would be that there would not be enough justices for the evidence portion to be an official holding of the court, as it would not have enough justices, but the rest would be.
In some hypothetical where it was joining opinions in such a way that nothing commands a majority, the rule is that they decide the outcome of the case based on what has a majority (e.g. to rule in favor of one party), and whoever has the narrowest position is taken as the precedent to be followed by lower courts. Yes, that's not always the most clear.
One noteworthy example of that happening was in Regents v. Bakke, where four justices were for affirmative action, four justices against it, and one not okay with racial preferences in themselves, but only for the sake of racial diversity. The latter position was followed, later reaffirmed, and is how we eventually ended up with diversity becoming the justification for racial preferences.
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Roberts's opinion is endorsed by six justices except for section III-C, and by five justices in section III-C. Five is a majority of nine.
Oh, oops, duh. That's a pity. Does it work like that in general, though (say one other joined her instead of the majority)?
She joined the majority, except in the one section, so most of it is not an instead, except for the evidence part.
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