CNN SCOTUS Scribe Says You Hurt The Chief Justice's Feelings
Sigh more, asshole.
(Photo by Jabin Botsford – Pool/Getty Images)
Chief Justice Roberts is confounded. He is shaken. He is weary.
As the Supreme Court begins its October term, CNN’s woman inside the beltway, Joan Biskupic, paints a picture of a man simultaneously obsessed with public perception of the Court and utterly unable to see how his rulings undermine its legitimacy.
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“Roberts was shaken by the adverse public reaction to his decision affording Trump substantial immunity from criminal prosecution,” Biskupic writes. “His protestations that the case concerned the presidency, not Trump, held little currency.”
How could Americans not see that he was just calling balls and strikes when he ruled that presidents can do crimes? What is wrong with you people?
The article quotes various former Roberts clerks “defend[ing] him to varying degrees.”
Erin Murphy, a renowned federal appellate lawyer, adopted her former boss’s spin that the case was about protecting the institution of the presidency and ensuring that successive administrations wouldn’t be “coming after previous presidents” in an endless round of tit for tat.
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This is an odd way to describe an opinion that bars the prosecution of a sitting president for any official action, up to and including directing the Justice Department to target his enemies — something Trump has promised to do!
Roman Martinez, also a federal appellate lawyer, if you can even believe it, praised Roberts’s immunity ruling for its “ambiguity as to the scope of the immunity.”
“There’s sorta question marks across different aspects of the opinion on what it means,” he told Biskupic. “We haven’t seen the ending yet.”
Oh, you thought the drafting was a weaselly way to get around the fact that it invented a constitutional doctrine out of whole cloth? Can’t you see what a stroke of genius it was for the Chief to yaddayaddayadda over whether official acts outside the “core” presidential duties (whatever that means) are entitled to absolute or presumptive immunity?
But the apologetics prize goes to HLS professor Richard Lazarus, “a longtime friend of Roberts [who] spent time with him in July immediately after the Trump decision was issued.”
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Writing in the Washington Post in August, he described the immunity ruling as “leaving plenty of room for Trump’s conviction on multiple felony counts.”
The opinion directs the trial court to conduct a fact-intensive inquiry to determine whether Trump’s shitposts summoning a mob to DC and his pressure campaign to force the Georgia secretary of state to “find 11,780 votes” were official acts, and then pass it up to the Supreme Court to let Sam Alito take a Sharpie to it. This provides “a surprisingly clear road map for the successful felony prosecution of Trump,” Lazarus insists.
The professor shrugs off the fact that his buddy suggested but refused to conclude that the pressure campaign to get Mike Pence to toss out the votes of 20 million Americans was part of Trump’s job and thus immune from prosecution:
Yes, the court was more doubtful about whether Trump’s discussions with Pence were likewise outside the scope of presidential immunity. But, while that presents an intriguing legal issue, it has little practical importance for the fundamental question of whether Trump can be prosecuted and convicted of federal felony offenses. At some point, additional evidence or felony offenses just become piling on.
At the risk of piling on Biskupic for accurately reporting on the view from inside One First Street, this profile ignores the inherent contradiction between Roberts’s fixation on his own legacy and his insistence that the Court is a nonpartisan edifice of American society, far above the fray.
Because you can’t claim to be committed to the principles of stare decisis when you utterly disregard precedent the second you have the votes. You can’t claim to be clinging to an “original” approach to the Constitution while inventing a right to wander around the streets with a machine gun. You can’t demand that the citizens revere you when you use your power to thwart their express wishes at every turn. And you can’t claim to be confounded by Trump while inventing new rules expressly designed to empower him and ensure he never faces a reckoning for attempting to overthrow the government.
Biskupic quotes the Chief Justice in 2010 addressing a group of law students: “You wonder if you’re going to be John Marshall or you’re going to be Roger Taney. The answer is, of course, you are certainly not going to be John Marshall. But you want to avoid the danger of being Roger Taney.”
Perhaps in 2010 the answer to that question was unclear. Today it is not.
Cue 1,000 former law clerks turned appellate lawyers to explain how actually he’s just a misunderstood genius …
Analysis: John Roberts remains confounded by Donald Trump as election approaches [CNN]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
