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PRESIDENTIAL IMMUNITY DIDN’T FALL OUT OF A COCONUT TREE  
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Michael Podhorzer
September 15, 2024
Weekend Reading
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_ The six Supreme Court justices who invented presidential immunity
are not 'conservative.' A series of interventions by Federalist
Society judges have rewritten the United States Constitution and
democratic rules in favor of plutocratic interests. _

"John Roberts - Caricature (Painting)", by DonkeyHotey (CC BY 2.0)

 

Today’s excellent _New York Times _reporting, “How Roberts
Shaped Trump’s Supreme Court Winning Streak
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provides blockbuster details on the behind the scenes processes that
led to Trump v. Anderson
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Colorado ballot case), Fischer v. United States
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J6 defendants case), and Trump v. United States
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immunity case). Today’s _Weekend Reading_ hopes to be a useful
companion piece to put the new reporting in context. 

The article begins the story in February 2024, and necessarily reports
on what happened after Roberts’ February 22nd memo. However, this
leaves the impression that addressing the question of presidential
immunity sprung itself on the Court. Indeed, it’s impossible to
imagine that none of the justices formed opinions about the legality
of Trump’s post-election activities until a case came to them three
years later. And, although we didn’t know it at the time, Roberts
and the other justices were fully aware of Ginni Thomas’
encouragement of the insurrection, as well as insurrectionist flags
flying at the Alito residence. 

Yet Roberts made no effort (and seemingly had no interest in)
fashioning an opinion that might have garnered wider acceptance.
Indeed, _THE_ _FEBRUARY 22ND MEMO MAKES CLEAR THAT CHIEF UMPIRE
ROBERTS HAD DECIDED THE FINAL SCORE LONG BEFORE THE PLAYERS TOOK THE
FIELD. _

In a way that is typical of even negative reporting about Roberts,
the _Times _piece’s key paragraph holds back from the full force
of the wholly justifiable conclusion that the final decisions reflect
Roberts’ proactive intentions rather than reactive problem
solving: 

In a momentous trio of Jan. 6-related cases last term, the _COURT
FOUND ITSELF MORE ENTANGLED_ in presidential politics than at any
time since the 2000 election, even as it was contending with its own
controversies related to that day. _THE CHIEF JUSTICE RESPONDED_ by
deploying his authority to steer rulings that benefited Mr. Trump,
according to a New York Times examination that uncovered extensive new
information about the court’s decision making (emphasis added).

The passive tense “found itself entangled” and “the chief
justice responded” inverts reality, as Roberts was responding almost
entirely to entanglements of his own making. But for his
uncompromising approach, Trump v. Anderson could have been quickly and
uncontroversially decided unanimously, Trump v. United States might
have been decided with at least one “liberal” justice, and Fischer
did not have to be decided at all. 

_FISCHER V. U.S._

Let’s begin with the easiest of the three cases mentioned in
the _Times _piece. The article provides no background on _who
decided to entangle the Court _in this case by voting to
grant _cert_. 

SCOTUS routinely rejects appeals with far graver implications than
Fischer in terms of chilling dissent, which was the concern raised in
oral arguments and in the final opinion. A notable example they didn't
take up, despite its having far more egregious and broader
implications for chilling speech, was a case
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a Black Lives Matter protest. The Court allowed the organizer of that
protest, which was non-violent save for a single protester throwing a
rock at a police officer, to be sued for that one protester’s
actions.  

Moreover, the Alito switch on Fischer occurred shortly after the New
York Times reporting about the insurrectionist flags flying at his
homes. Today’s Times report caveats: “While that timing is
suggestive, it is unclear whether the two are linked.” Remember, if
you believe, as basically everyone who wasn’t born yesterday does,
that they are linked, this is an indication that _Roberts saw
Alito GETTING CAUGHT FLYING THE FLAG as the problem – NOT FLYING
THE FLAG IN THE FIRST PLACE, which we know he knew about three years
ago. _

_TRUMP V. ANDERSON_

Unlike _Fischer_, the Court clearly had to take this case. Today’s
reporting confirms what was obvious by the end of oral arguments –
that there was broad agreement among the justices that Colorado had
exceeded its authority in removing Trump from its primary ballot.
Thus, the principles enunciated in the _per curiam _began with
unanimous agreement and could have been delivered with alacrity.  

But Roberts didn’t do that. Instead, he went further than necessary
to settle the case – effectively disabling section 3 of the 14th
Amendment, which prohibits those who “shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof” from holding office. Indeed conservative legal
scholars including William Buade and Michael Stokes Paulson
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as well as retired judge Michael Luttig
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wrote convincingly that disqualification was in order.

For the first time since it was drafted, according to the majority,
the insurrection clause of the 14th Amendment cannot be enforced
unless Congress enacts legislation first. Now, the Amendment has no
power unless Congress enacts legislation first. And the Roberts
majority decreed this while sidestepping the question of whether Trump
had engaged in an insurrection. 

_TRUMP V. UNITED STATES_

Let’s begin by taking a longer view of the relationship between the
Republican appointees and Trump’s efforts to overturn the election
results. Again, it’s not as if the “need” to address the
question of presidential immunity fell out of a coconut tree in
February 2024. Consider: 

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In February 2021, Mitch McConnell and other Republican senators who
voted to acquit Trump publicly stated that they believed he could be
criminally prosecuted. 

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In February 2021, Roberts, and likely most or all of the others were
aware of Ginni Thomas’ encouragement of the insurrection, and
possibly Alito’s wife’s as well. .

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In August 2023 they were aware of the charges for which Trump was
indicted.

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In December 2023, they were aware of Judge Chutkan’s rejection of
Trump’s immunity claims.

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In December 2023, although they clearly thought the broader questions
needed to be decided by them for the ages, they went along with Trump
in rejecting Jack Smith’s request to expedite consideration of
presidential immunity.

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In January 2024, they heard the oral arguments of Trump’s appeal in
which even his lawyers conceded there were aspects of the indictments
that were not covered by presidential immunity. 

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In early February 2024, they were aware of the DC Circuit Court of
Appeals decision.  

The reporting makes clear that most, if not all, of the Republican
appointees had already formed their judgments well before Trump’s
appeal of his unanimous and emphatic loss at the DC Circuit Appeals
Court. But Roberts made no effort (and seemingly showed no interest)
in fashioning an opinion that might have garnered wider acceptance, if
doing so came at the expense of trimming any of the maximalist aims of
the most political justices on the Court. (The article indicates that
in June, Justice Sotomayer “signaled a willingness to agree on some
points in hopes of moderating the opinion.”)

_THAT INDIFFERENCE TO COMPROMISE IS LITERALLY UNPRECEDENTED IN ANY
SUPREME COURT CASE OF SIMILAR MAGNITUDE OTHER THAN BUSH V. GORE DURING
THE VINSON, WARREN, BURGER OR REHNQUIST ERAS._ What insider reporting
there is of the most important decisions before that, whether
it’s _Brown _or _Roe_, reveal strenuous efforts to fashion
decisions that could bring along as large a majority as possible. 

 As I explained in “Tipping the Scales: The MAGA Justices Have
Already Interfered with the 2024 Elections
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and “Breaking the Law: Trump Is the Means, Not the End
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Roberts stands alone in bringing no one outside of his _ipse
dixit_ majority along for any of his most significant rulings. 

First, with respect to election related cases
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the following graph shows the number of important election-related
rulings each Court made since the 1950s, broken down by ideology. The
dark blue represents liberal consensus rulings with 7 or more votes;
the dark red represents conservative rulings where the majority
consisted only of Republican nominees.

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Moreover, the overwhelming majority of civil rights related precedents
overturned by the Warren and Burger courts were decided with at least
7 votes. As well described in various accounts, Chief Justice Earl
Warren worked strenuously to fashion a unanimous opinion in Brown,
which included the assent of Justices Hugo Black (formerly a senator
from Alabama) and Stanley Reed, who initially said he “opposed
abolishing segregation.” By contrast
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none of the civil rights precedents overturned by the Rehnquist Court,
and fewer than 1 in 5 of those overturned by the Roberts Court, had as
many as 7 votes. 

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THE ROBERTS MAJORITY IS NOT “CONSERVATIVE” 

In almost all Supreme Court coverage, the six Republicans are labeled
“conservative” – suggesting that in the context of these cases,
their judgment should be thought of in terms of adhering to eternal
conservative principles. In fact, as I detailed in “To the Supreme
Court, the 20th Century Was Wrongly Decided,
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Federalist Society-approved jurists are allowed to call themselves
“conservative” even though they readily ignore conservative
principles whenever it’s necessary to do so to realize their
substantive aims. Similarly, their commitment to “originalism” has
never been anything more than a post-hoc rationalization for rulings
that have no other plausible explanation than advancing the interests
of the FedSoc coalition.

Just look at this list of major interventions by FedSoc judges that
have had serious consequences for our elections. For more detail on
each intervention, see _Tipping the Scales: The MAGA Justices Have
Already Interfered with the 2024 Elections
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Taken together, these interventions have not only literally decided
who would be president (Bush v. Gore) but have rewritten what had been
the settled rules of democratic elections in favor of those
plutotheocratic interests.

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Shielding Trump from accountability for January 6th and the criminal
conspiracy to overturn the results of the 2020 election.
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Shielding Trump from accountability in the documents case
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The Fischer case
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Gerrymandering the 2022 House Midterms
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Voting Rights (Brnovich) 2021
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Gerrymandering and the 2012 Midterms
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The Voting Rights Act and voter suppression
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Campaign Finance
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_Bush v. Gore
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Thanks for reading Weekend Reading ! Subscribe for free to receive new
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For more Weekend Reading on SCOTUS:

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_Supreme Gaslighting
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_Breaking the Law: Trump Is the Means, Not the End
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_Shelby County Opened the Door to Modern-Day Poll Taxes
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_To the Supreme Court, the 20th Century Was Wrongly Decided
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For more Weekend Reading on Trump Accountability:

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_Justice Can’t Wait
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_What to Expect from Week 3 of Trump’s January 6th Trial (Nothing.
The justices he appointed made sure of that.)
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_America on Trial: If Trump walks, we’re all guilty
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_Weekend Reading is edited by Emily Crockett, with research assistance
by Andrea Evans and Thomas Mande._

_Michael Podhorzer @michaelpodhorzer
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is former political director of the AFL-CIO. Senior fellow at the
Center for American Progress. Founder: Analyst Institute, Research
Collaborative (RC), Co-founder: Working America, Catalist. He
publishes Weekend Reading. (weekendreading.net)_

* SCOTUS
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* Presidential Immunity
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* Federalist Society
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