78. "Writing a Rule ... for the Ages"

The real problem with Thursday's argument in the Trump immunity case is the extent to which it reveals a Supreme Court poised to paint itself into a deeply problematic (and unnecessary) corner

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

Not surprisingly, the prompt for this week’s “Long Read” is Thursday’s (much-discussed) marathon oral argument in Trump v. United States—on whether former President Trump is immune from prosecution for his alleged role in the events leading up to, and on, January 6. If the argument is any guide, the justices are looking to resolve a lot more than that narrow question—something that would be, in my view, a colossal mistake, and an easily avoidable self-inflicted wound. But first, the (other) news.

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On the Docket

The Court is now officially done with oral arguments for its October 2023 Term. (There’s always the chance that the Court holds a hastily scheduled argument over the summer, but there’s no current case in which the need for such an unusual move seems even remotely possible.) As we expected, most of the Court’s energy last week was devoted to its last week of scheduled hearings—not just the Trump argument, but the … troubling… argument in the EMTALA/emergency abortion case (about which I wrote in Thursday’s bonus issue), and Monday’s argument in the Grants Pass homelessness case.

The only orders out of the Court came in last Monday’s regular Order List, in which the Court doubled the number of cases on the calendar for the October 2024 Term—by granting certiorari in two new disputes: a case about whether a party that obtains a preliminary injunction that effectively resolves a dispute is a “prevailing party” entitled to attorneys’ fees; and a challenge to the Biden administration’s ban on “ghost guns,” which the Court has already put back into effect twice through orders granting emergency relief. That was it.

Turning to this week, we may get more grants for next term in the Order List that we expect at 9:30 ET today, but the Court has no other business on its official calendar. It is not currently supposed to take the bench again until next Thursday (May 9), which it has designated as a “possible” decision day. And although there are a bunch of pending emergency applications, none are calling out for an immediate decision. All of this is to say that we may not hear much from the Court this week after this morning—as the justices turn toward the task of drafting and finalizing the 40-or-so remaining decisions in argued cases between now and the end of June.

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The One First “Long Read”:
The Trump Immunity Argument

You’ve probably already seen a fair amount of media coverage of Thursday’s oral argument in the January 6 immunity case. That coverage seems to have coalesced around two takeaways: That it is unlikely that a majority of the Court will hold that Trump is immune from the January 6 prosecution, but also that a majority of the justices seem interested in identifying at least some circumstances in which former presidents can’t be criminally prosecuted for conduct undertaken while in office—whether by articulating an immunity for “official acts” (whatever those are), or by imposing some kind of clear statement rule before (some?) criminal statutes can be applied to presidential conduct. Some of the takes have been measured; some have been … less so. But I think a lot of the analyses have been talking past each other by not focusing on how the justices understand exactly what the task is that’s in front of them.

To that end, perhaps the most revealing line of the 160-minute(!) oral argument came toward the end—when Justice Neil Gorsuch emphasized that the justices were struggling with hypotheticals and line-drawing problems entirely because the Court is “writing a rule … for the ages.”¹

That was a remarkably revealing statement, and one that, in my view, underscores the real problem that the Court has created for itself in the Trump case.

Earlier in the argument, a different exchange made clear how the Court could avoid all of that. In response to some very sharp and precise questions from Justice Amy Coney Barrett (who, as my colleague John Fritze notes over at CNN, has really stood out in recent arguments), John Sauer, representing former President Trump, conceded that there are substantial aspects of the four counts in the January 6 indictment that, in his view, are not related to any “official acts” by then-President Trump. That is a remarkable—and remarkably important—admission, for it effectively concedes that, even if the Supreme Court recognizes some kind of “official act” immunity, the January 6 prosecution can still go forward, at least in part. If we start from that baseline, then the only question that the Court has to decide is whether any of the January 6 charges, specifically, are on the “immunity” side of the line (and my own sense is that a majority might well say that the answer is “no”).

But with only a few exceptions, the rest of the argument focused more on hypotheticals than on the specific charges that have been leveled against Trump in the January 6 case. From SEAL Team Six to self-pardons to corrupt bargains to the Japanese American internment camps, the justices seemed awfully interested in the articulation of an overarching, forward-looking rule that would properly account for every relevant historical (and hypothetical future) case—and noticeably un-interested in talking about the specifics of Trump’s alleged conduct before and on January 6. Hence Gorsuch’s quip about a “rule … for the ages,” and argument analyses reading into these questions the worst possible motives for the justices asking them.

If a majority of the Court believed that presidents ought to be subject to criminal prosecution for any crimes they commit in office, that wouldn’t be such a fraught enterprise; a categorical “no immunity” rule would be just as easy to write as an opinion that’s good for only this particular train. But the argument made clear, beyond peradventure, that at least five justices believe, for different reasons, that at least some presidential conduct should be un-prosecutable (my count here includes the Chief Justice and Justices Thomas, Alito, Gorsuch, and Kavanagh), whether because of immunity or because of limits they think ought to be imposed on the applicability of general criminal statutes to the official conduct of a sitting president (the “clear statement” argument). So one majority thinks some presidential conduct can’t be prosecuted; another majority appears to think at least some of Trump’s conduct can be. If that is where the Court is, then it has two choices: Write an opinion that draws a line to govern all cases, or simply hold that the January 6 case can go forward, without resolving the contours of presidential immunity in future cases.

There are lots of reasons why the latter, narrower option ought to be more attractive to justices from across the ideological spectrum. In 2004, a relatively unknown D.C. Circuit judge named John Roberts so summarized the “cardinal principle of judicial restraint”: “if it is not necessary to decide more, it is necessary not to decide more.” Here, if a majority of the Court believes that the January 6-related charges can be prosecuted, it ought to be fairly quick work to hold as much and make explicit that the Court is just not deciding the issue as applied to any other cases. Indeed, there are lots of examples, some more controversial than others, of the Court thus limiting its holdings in prior cases. Yes, allowing these charges to go forward requires at least a modicum of line-drawing, but only enough to explain why these offenses can be tried. This is the exact move that a unanimous Court made in the Watergate tapes case—holding that, although there was such a thing as “executive privilege,” it had to give way in Nixon’s case because of case-specific reasons that … have not recurred. Almost exactly 50 years later, we’re still waiting for the Court to further articulate the cases in which executive privilege can be overcome.

The broader option, whatever its value to law school casebooks, poses three distinct problems in the near-term: First, and most practically, it is likely to be much harder to write, which means, among other things, that it will take the Court longer to hand down such a decision. That may not bother the justices much, but given how much any delay benefits Trump at this point (and how much the Court could have already moved faster in how it has handled this case), the longer this takes, the more the justices are at least opening themselves up to charges that, willfully or not, they are necessarily helping Trump, even if they end up ruling against him. It may not be entirely fair to blame the justices (or, at least, only the justices) if it turns out that the January 6 prosecution can’t take place before the election, but it seems undeniable that, in that circumstance, a lot of people will.

Second, however long it takes them to do it, any forward-looking line that the justices draw will necessarily identify conduct that future presidents can engage in without any fear of criminal prosecution. Given how difficult a successful impeachment would be in our contemporary political climate (in which it’s unlikely that the Senate would convict unless the party opposite the President has a supermajority, or something close to it, in that chamber), specifically defining such a law-free zone could be exceptionally dangerous—something akin to the “loaded weapon” about which Justice (Robert) Jackson so famously warned in his Korematsu dissent.

At one point during Thursday’s argument, Justice Alito publicly worried about how, without immunity, future presidents might unlawfully try to remain in office if they fear prosecution by their successors. Given how we got here, one response might be to describe such a worry about future cases as “chutzpah.” But the more significant point is that having the Supreme Court expressly recognize a core of constitutionally immunized presidential behavior could incentivize comparably unlawful behavior by future officeholders—especially toward the end of their term, when members of Congress might hide behind easily debunked arguments that impeachments can’t continue once the officer has left office.

Third, and perhaps most importantly, there is the broader message that such a decision would send no matter when it comes down or what it immunizes in the long term. As regular readers of this newsletter know, I try to give the justices, especially those with whom I typically disagree, the benefit of the doubt as to their good faith. But faith is a two-way street. In that respect, I often come back to something my colleague, friend, and former dean Ward Farnsworth wrote two decades ago about Bush v. Gore: “those who accuse the majority of having partisan motives underestimate the good faith of the justices; but those who acquit the Court of partisan behavior may overestimate the utility of good faith as a constraint on wishful thinking.”

Indeed, with all respect to those who reacted to the tenor of Thursday’s argument with unbridled horror, it’s possible to imagine that some of the questions from the more right-leaning justices on Thursday were as much worried about the specter of a future President Trump pursuing bogus charges against (former) President Biden as they were concerned about the other way around. But that’s exactly the problem with how the justices appear to be approaching this case: As I’ve written about (at length) with respect to the Colorado ballot disqualification case, the Court has to be especially careful when it wades into the waters of high constitutional politics. One way to protect itself is to speak with one voice. Another way is to hold as little as possible. But a divided decision that goes out of its way to decide questions beyond those presented in the instant case, even with the best of intentions and purest of motives, is fraught with peril; indeed, although Chief Justice Taney’s racist rhetoric didn’t help, going way beyond what it needed to hold in a deeply misbegotten attempt to lower the political temperature is the true analytical shortcoming of Dred Scott.²

The Court may yet surprise us. Maybe Chief Justice Roberts, who at least at oral argument appeared to be the median vote in this case, can persuade his colleagues of the need for a narrow, consensus ruling—and the serious risks of anything else. I’m skeptical not because, as some have suggested, Thursday’s argument reveals a Court that wants to insulate Trump from accountability for January 6. Rather, I’m worried because there appear to be five or more justices who think that they have an obligation to do more than is required in the instant case—apparently without regard for the very real institutional and political costs such a move could (and, I fear, would) incur.

There are lots of contexts in which it makes sense for the Court to declare a broad, forward-looking principle to guide future cases—especially when lower courts regularly confront the same issue, or when relief in future cases depends upon the Supreme Court having already established a particular constitutional rule (as with respect to qualified immunity and federal post-conviction review). In those contexts, at the very least, guidance from the justices can help reduce the need for the Court to take second- and third-generation cases. And in the qualified immunity and habeas contexts, such guidance is often the only way that future plaintiffs can win.

But to this point in American history, Trump is, fortunately, a class of one. The more that the Court tries to hand down a ruling that doesn’t reflect that fact (or that reflects it only through a fractured and fractious disposition), the more that it will be making an error for the ages, rather than a rule for them.

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SCOTUS Trivia: Earlier Access to Official Citations

I tweeted about this when it first appeared last year, but the Court’s new “Reporter of Decisions,” Rebecca Womeldorf, has already implemented one significant reform that will be of interest to anyone who prefers citing as many Supreme Court decisions as possible to their official source (the U.S. Reports).

In the old days, it would take 3-4 years from when a Supreme Court decision would come down to when the Court would release the “preliminary part” for the corresponding volume of the U.S. Reports. Thus, any citation to recent Supreme Court decisions was necessarily forced to rely upon unofficial sources—West’s Supreme Court Reporter; Lexis’s Lawyers’ Edition; or others. This didn’t usually matter all that much; those reporters tend to be pretty darn accurate. But there’s a reason why official sources are preferred.

Well, the Supreme Court’s website is now providing official citations to decisions of the Court within weeks of those decisions coming down (and, it appears, is also working backwards to provide citations to rulings from the last few terms, as well). So as opposed to a lag of 3-4 years, now there’s a lag of only 3-4 weeks. A quick glance at the Court’s website shows that there are official citations for every decision through FBI v. Fikre, from March 19 (601 U.S. 234 (2024), for those who are scoring at home).

Again, this may matter to only three of you. But to the three of you who, like me, take special satisfaction from citing recent cases properly, this is good trivia.

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Until then, happy Monday, everyone. I hope that you have a great week!

1. Whether intentionally or not, this line from Justice Gorsuch harkens back to the debate over exactly what Secretary of War Edwin Stanton said when President Abraham Lincoln died shortly after 7:22 a.m. on April 15, 1865: Whether it was “now he belongs to the ages,” or “now he belongs to the angels” (or, maybe, neither). FWIW, I’m on team “ages,” although it’s easy to agree with Adam Gopnik that “Lincoln belongs to both.”

2. In a nutshell, Taney went out of his way to strike down the Missouri Compromise (which Congress had already repealed in the Kansas-Nebraska Act) after holding that, because Dred Scott was enslaved, he could not be a citizen for purposes of federal diversity jurisdiction. In other words, after holding that the Court lacked subject-matter jurisdiction to do … anything, Taney went further to invalidate a defunct Act of Congress—only the second time, to that point, that the Court had struck down a federal statute.