“The court of judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made: and the government is in like manner governed by the constitution.”
— THOMAS PAINE
March 2024

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Which Is It: Equal Justice For All or “My Judges”?

Last week brought forward a contest between two views of the U.S. Supreme Court: one romantic, the other cynical. Which is more current?

At issue, of course, is Donald Trump’s immunity from prosecution for what he did after losing the 2020 election. Was it criminal and can that be prosecuted under the laws of the United States? The importance of the question is far broader, both for now and the future. Once before, in 1974, an important dispute arose between a president and the Department of Justice on the question of presidential power. That time it was President Richard Nixon seeking to quash a subpoena for tape recordings made in the Oval Office that may have included evidence of crimes committed by the Watergate burglars and covered up by White House staff and possibly the president himself. The fight had been brewing for nearly two years, as more news came out almost daily about unlawful maneuvers by the president and his party to win the 1972 presidential election. In October 1973 Nixon had demanded that Attorney General Elliot Richardson fire the Watergate Special Prosecutor Archibald Cox and when Richardson refused and resigned, that Deputy Attorney General William Ruckelshaus do it. Ruckelshaus also refused and resigned, leaving the firing to the Solicitor General, Robert Bork. That night became known as the Saturday Night Massacre.

At the time of U.S. District Judge John Sirica’s ruling and the subsequent Supreme Court case, Nixon had not been impeached, much less indicted, for any crimes. The defendants were the burglars, the case was about executive privilege and refusing to produce evidence. No presidential election was imminent. The Eisenhower-appointed Judge Sirica of the U.S. District Court denied Nixon’s motion, in which the sitting president claimed he had “an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” and ordered the tapes turned over by May 31. Instead, both sides petitioned the Supreme Court to grant certiorari without bothering to take the matter to the Court of Appeals. Oral argument was held on July 8, five weeks after certiorari was granted, the decision came down July 24, less than three weeks after oral argument. The decision was unanimous and was announced by a Nixon appointee, Chief Justice Warren Burger. That Court also included two other Nixon appointees, Justices Blackmun and Powell. Nixon resigned sixteen days later, on August 9, 1974. From the ordered date to produce the tapes, the entire saga took 10 weeks.

In the Trump immunity case, Judge Tonya Chutkan of the U.S. District Court ruled against a claim of virtually absolute presidential immunity in a criminal case in which Trump has been indicted, and the Special Prosecutor in December 2023 sought immediate Supreme Court review without stopping in the D.C. Court of Appeals, as had been done in the Nixon case. The Supreme Court declined to take the case that way, so it went to the Court of Appeals. That Court affirmed Judge Chutkan unanimously on February 6 and Trump sought a Supreme Court stay of the trial, which involved an alleged attempt to overthrow the U.S. government. Last week, after two weeks of deliberation, the Court took jurisdiction and scheduled oral argument for two months later. Nixon had appointed three justices, same for Trump.

Obvious points of difference: Nixon had not been impeached or criminally charged at all; Trump has twice been impeached and criminally charged in four cases with 91 felonies; the courts moved quickly in the Nixon matter, glacially here; no election was pending for Nixon, here the leading Republican candidate for president has been charged with felonies, by four grand juries. Given the calendar, the country may go to the polls not knowing whether or not Trump is a crook.

No screenwriter has equaled Aaron Sorkin in creating an image of government and the presidency that warms the heart and evokes pride in our system. In season 5, episode 17 of The West Wing, titled The Supremes, the most conservative Supreme Court justice has died and President Bartlet needs to make a nomination. Liberal hearts beat for Judge Evelyn Lang, played by Glenn Close, but conservatives in the Senate hate her. Josh Lyman, played by Bradley Whitford, engineers a creative solution. He and Bartlet forego the obvious path of trading quality for peace in the Senate and persuade the elderly justice who speaks for the liberal wing of the Court to retire. They add a second appointment at the same time, the brilliant but very conservative Judge Christopher Mulready. It works, peace reigns in the Senate, and the Court becomes what Sorkin wants us to believe, a place of high-minded considerations and justice.

But there’s a more cynical view. Unlike the Court in Nixon, this Court has seen serious ethical questions raised about some of its members, it has opened the floodgates of money into federal elections, it has been steadily permissive about guns despite a rising tide of mass shootings including at schools; and it has taken away the constitutional right to abortion 50 years after Roe v. Wade, and despite widespread public acceptance. This Court’s credibility is in the toilet, and now this, the virtual assurance that Trump will face the country asking for our votes despite the worst record in history.

Justice Oliver Wendell Holmes described the Supreme Court as nine scorpions in a bottle. Justice Byron White once explained to his law clerks that the best reasoning was five votes.

So where on the spectrum between romantic and cynical do we find ourselves?

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