I've been trying to write this post since the day of oral arguments in the Immunity case, which google tells me was over two months ago. This has me stunned: I honestly thought it had been only a month. Since we're finally getting the opinion today, I'm rushing to get my thoughts out in the interest of seeing whether I have any clue about what's about to come. On a side note, I've apparently learned nothing in the decades since my last serious attempt at finishing college.
There isn't any time left to make this more organized, and everytime I've tried to write this out I ended up spinning my wheels on getting the language and formatting right anyway, so this will just be a bunch of bullet points. It would rapidly get tedious if I prefaced every point with 'in my opinion' and other such qualifiers, but since I'm not a lawyer or even particularly well-informed about the Court, just insert them mentally before any declarative statements.
Thanks for this post; it reflects a lot of thought and provides a bunch to chew on.
- For Roberts, this is The Big One. The case that will determine his legacy. It will be more important to his place in history than Citizens United, more than the Obamacare decision, more even than Dobbs. When a superstar of conservative jurisprudence like Michael Luttig says this will be the most consequential court decision in the history of the Republic, that carries a lot of weight.
I have to disagree with this. As you note below, the legal outcome is obvious—there’s no way there can be presidential immunity without explicitly turning the presidency into an autocracy. Rubber-stamping an obvious conclusion isn’t legacy-defining in the way that things like Citizens United and yesterday’s Chevron case will be.
Moreover, by dragging the decision out so far, the issue is effectively mooted for Trump so long as he finds a way to take power after the next election.
That is the key outcome of this case, regardless of what the Court formally announces today.
- Roberts has probably been pulling out every political tool, every bit of politesse and internal political capital he has to try to get this as close to unanimous as he can get. The timing of this decision leads me to believe that the delay was part of a deal Roberts struck with Alito et al: In exchange for them coming on board with the obvious decision- the only legally viable or even possible decision, given the facts- they demanded the opinion be postponed as long as possible. Long enough that there was virtually no realistic scenario that a trial, let alone a jury verdict, would come before the election. If I am right about this, then that would seem to imply that the decision will be a massive rejection of any claims of absolute immunity.
This seems plausible. Though I wouldn’t be surprised if it was a 7-2 decision and some Justices (maybe Roberts, maybe Alito and Thomas) sat on their opinions long enough to prevent a trial before the election.
- Because Alito is Alito, however, there will be caveats. He will assert that while the Court of course has jurisdiction in this or any matter it chooses to to address for any reason it chooses to give, if it even chooses to give any- You got a fuckin' problem with that?!?!- and that even the President must bend the knee to their authority, he has reservations about this particular case involving this particular president. There will be some very narrow immunity for even criminal official acts, less immunity for criminal non-official acts, and a lot of quibbling about the distinction between the two categories. He'll bitterly concede The People's need to proceed with these prosecutions, but he'll make sure SCO knows that he is going to be watching them like a hawk, so they'd better mind their p's and q's or he'll shut them down so fast it'll make their little heads spin, and for the last time, GET OFF HIS LAWN!
50 quatloos says Alito finds in favor of absolute immunity, but isn’t close to a majority.
- I'm also willing to bet that Roberts factored in the possibility of Thomas and Scalito going rogue if they didn't like the deal they were offered. School's out for summer, so there isn't a lot he will be able to do to them if they decide to start screaming to the press, and two Associate Justices of the Supreme Court of the United States could do incalculable damage to the american political process if they went renegade during perhaps the most crucial presidential election in US history. With only a few months to go before the election and fewer until the canonical First Monday in October, if they weren't given major concessions, they would absolutely be capable of embarking on the judicial equivalent of a terrorist campaign.
That seems unlikely. Thomas and Alito are getting more than they could have dreamed of with this Court, and they succeeded in delaying this case long enough to prevent trial before election, which was really all they needed.
- Fuck it takes me a long time to write. Time's essentially up, so I'm going to stop. I have a whole lot of other thoughts I may add later. If they are correct, I hope you'll trust that I came up with them before the opinions were released.
Thanks again for an interesting piece of writing!
Also, we’re maybe a minute from the decision being announced, so my post has a good likelihood of being the most quickly and hilariously proven wrong post in SoapBox history.
Edit: Yup, wrong, wrong, wrong. Somehow I managed to underestimate the corruption of this Court.
