I published an op-ed in today’s New York Times looking back at the Supreme Court’s recent term. I was originally going to write a post saying “The courts are basically doing a good job!” but ultimately came to the conclusion that I have to put a huge asterisk on that.
It’s currently titled “Principled Supreme Court, Unnerving Trump.” (My working title is “The Trump Exception.” A cheekier title would be “Trump Derangement Syndrome.”)
from the very beginning:
At the end of another important term, the Supreme Court issued a major decision that will reshape the law. Like many of the decisions the court makes today, they have been widely criticized in areas such as administrative law as corrupt or illegal.
For the most part, this criticism does not give the Supreme Court enough credit. In case after case, it rightly highlights the importance of appealing to historical understanding rather than imposing modern policy views when deciding constitutional cases. Most of the court’s decisions are principled and reasonable – most but unfortunately not all.
There are two particularly glaring flaws in the court’s performance this year — and they’re especially unfortunate as they relate to Donald Trump.
Start in the middle:
The decision in Trump v. Anderson lacks any real textual and historical basis and is inconsistent with the basic structure of the Electoral College, in which states have primary authority over how to select their slates of electors. What the ruling really does is allow the court to overturn the Colorado Supreme Court decision and avoid the political firestorm that might ensue, without requiring the court to take a side on what happened on January 6. . .
[Trump v. United States’s] The reasoning goes far beyond any particular part of the Constitution or any established constitutional tradition. Its methodology is explicitly based on Nickerson v. Fitzgerald, a policy-making precedent from the 1980s similar to precedent criticized by the Court elsewhere. Justice Barrett joined only part of the majority, writing a unanimous opinion proposing a narrower, more grounded form of immunity limited to core administrative conduct.
what is going on? Critics say that everything the court does is generally unprincipled and illegal, which is incorrect.
Others may argue that the court sided with Trump. . .
More likely, in these cases, the court saw itself as trying to save the country from a disproportionate response by other institutions to Mr. Trump. It contends that lower courts and the Justice Department have succumbed to a form of Trump Derangement Syndrome that is said to plague many liberal elites and even conservatives who have never supported Trump.
at last:
The court is motivated by statesmanship, which the country desperately needs today. The problem is that this statesmanship is a form of results-oriented decision-making that courts have disparaged in other contexts. It trusts states to deal with the homelessness crisis but does not provide voting rights to insurgents, despite the Constitution trusting states to address both problems. It trusts juries to handle fines for securities fraud but not for abuses of presidential power, even though the Constitution trusts juries to handle both matters.
Particularly when dealing with Mr. Trump, the courts were convinced that our other institutions could not be trusted and therefore did not look in the mirror.
You can read the full article here. As noted yesterday, I did a broader and more nuanced analysis of the immunity case on the Divergent Arguments podcast.
