Some geopolitical events define a generation. In my lifetime, I thought they would be the collapse of the Soviet Union, 9/11, the election of President Obama, the election of President Trump, the COVID-19 pandemic, and January 6th. Watergate, the moon landing, the assassination of JFK, Pearl Harbor and more. In these moments, everyone remembers where they were when it happened, and after it happens, people say things are always different.
The Supreme Court, as a continuing institution, has always had to discuss these epoch-making events in one form or another. Two cases decided this semester offer a glimpse into how the courts and history will view the COVID-19 pandemic and January 6th. Murthy v. Missouri and Fisher v. United Statesthe court casually mentioned each incident.
At the height of the pandemic, Judge Breyer would come up with statistics on how many people might have died without various safety measures. But in MurthyJudge Barrett’s majority opinion said little about why the Biden administration relies on social media companies to suppress certain information. Although Judge Barrett was not particularly sympathetic to First Amendment claims, I got the distinct impression that she believed the government’s actions were frivolous—especially in hindsight. (We all remember how many people wore masks at her rose garden ceremony.)
and in FisherChief Justice Roberts called those who breached the Capitol “supporters of then-President Donald Trump.” Just a “crowd”. Not a bunch of rebels. Justice Jackson used stronger language – “angry mob”. Judge Barrett simply called them “thugs.” Nothing comes close to our language uprising. (Sorry Will and Mike.)
If you had told me on January 7, 2021, that the court would refer to the pandemic and election certification in such bland terms, I would have been skeptical. But here we are. When disasters are in the rearview mirror, they become calmer. Despite everything that has happened over the past three-plus years, Donald Trump has a good chance of being re-elected. Does anyone remember the rushed impeachment trial after he left office? Does anyone else care about part three? (Sorry Will and Mike.)
So maybe I’m wrong. Maybe the pandemic and January 6 are not a generation-defining moment. These events were not the culmination of a deep-seated and long-standing social movement. Instead, they are blips that come out of nowhere and are gone as soon as they are over. People seem to have left them.
I realize this is apostasy in law professor circles, but if Trump wins the election, President Biden (or whoever is in office at the time with the Presidential Success Act or the 25th Amendment) should Issue a full pardon. In reality, it doesn’t matter whether the president issues such a pardon. On January 20, 2025, Trump will definitely fire the special prosecutor, instruct the attorney general to dismiss the prosecution, and may even pardon himself. Biden’s pardon would at least require Trump’s acceptance — perhaps one could view that acceptance as some kind of act of penance. This is how Gerry Ford viewed his pardon of Nixon. However, Trump may not reject the pardon, which would itself be a symbolic act. If Biden loses, his political career is over and he can shoulder the political burden.
The tougher burden is whether New York’s governor will issue a pardon. I doubt it, but I don’t think this sentence will have any impact until Trump completes his second term.
