SCOTUS Hangs Up On Oral Arguments For The Term | The Choas Of Faithless Electors | The Power And Precedent Of Presidential Immunity
May 13, 2020
CHAOS IS A LADDER
|Today the Supreme Court heard its final oral arguments of the term in cases that both concern “faithless electors.” Many justices appeared uncomfortable with the chaos that could come from allowing electors to disregard the outcomes of the popular vote in their states, signaling that the Supreme Court may not tamper with the workings of the Electoral College. In fact, “chaos” was basically the word of the day. JUSTICE SAMUEL ALITO said at one point of electors becoming free agents, “The consequences could be chaotic.” JUSTICE BRETT KAVANAUGH also suggested SCOTUS should avoid rocking the boat on the issue noting, “We shouldn’t facilitate or create chaos.”
ED BOARD OVERTURE
|The Editorial Board of The Wall Street Journal thinks that when it comes to faithless electors, federalism should carry the day. “The Supreme Court is right to settle this ahead of what looks to be a fiercely contested 2020 election. While the Founding-era ideal of an Electoral College of philosopher-kings may be appealing in the abstract, the Constitution leaves responsibility for selecting and regulating electors to the states. Those that want to enforce electors’ pledges should be allowed to do so.”
ICYMI
|The justices yesterday did a marathon of arguments, listening to over three hours of debate over subpoenas for PRESIDENT TRUMP’S financial records. CNN put together a list of takeaways from those arguments which centered around whether the president can stop Congress from getting his financial records, and whether he can stop a grand jury investigation in Manhattan from getting his tax returns. Among the takeaways, CNN points out that Trump’s attorney, JAY SEKULOW, argued for the president to have total immunity while in office. JUSTICE ELENA KAGAN noted on the matter that “the president isn’t above the law.”
UNKEPT PROMISES
|“It’s useful to remember that these cases might not have been necessary if Mr. Trump hadn’t broken one of his first promises to the American people four years ago. Back in 2016, candidate Trump said he would be happy to share his tax returns with the public, as every major candidate for president had done without hesitation for four decades.” That’s The New York Times Editorial Board reminding all of us that once upon a time, not so long ago, PRESIDENT TRUMP actually campaigned on the promise of releasing his tax returns. The Ed Board also notes, “This isn’t an idle concern. Mr. Trump’s tax maneuvers have for decades skirted the edge of legality. In the end, the records may not show evidence of criminal misconduct. But a ruling by the Supreme Court that in essence gives presidents immunity from investigation and prosecution would be a grievous wound to the rule of law.”
THE POWER OF PRECEDENT
|Ashwin Phatak argues in Slate that it’s going to be nearly impossible for the Supreme Court to avoid its prior ruling in Clinton v. Jone when it issues its decision regarding the New York district attorney’s subpoena for Trump’s tax returns. Phatak suggests, “If the court applies its own precedent from Clinton v. Jones to the Vance case, it is clear that the president’s arguments should not carry the day. Multiple justices appointed by presidents of both parties seemed to understand that. Despite the weight of the Jones precedent, it remains difficult to tell whether the court will side with Trump, giving him almost limitless authority to avoid lawful subpoenas, or with the New York district attorney, who is simply seeking to do his job of investigating criminal wrongdoing. It appeared at least on Tuesday, though, that multiple justices understood the potential disastrous consequences of a ruling in Trump’s favor, both with regard to the court’s prior precedents and to the rule of law itself.”
CROSSING THE (NOT SO) GREAT DIVIDE
|In The Washington Post, Charles Lane applauds opinions JUSTICES GINSBURG and KAGAN wrote for the court last week. In separate cases, the justices joined their conservative colleagues in rulings — a move that Lane says sends a “health signal” of judicial nonpartisanship at SCOTUS.