SCOTUS

[CU88]

You know what’s scaring the hell out of Trump today?
Not 100,000 dead Americans and a crashed economy.

The Supreme Court hearing arguments in release of his tax return.

[MDlaxfan76]

So, what do we think the outcome will be?

Pretty clear where some of the Court is going to land hard, but will it be unanimous?
Single decision?
Multiple getting to same place?

Or a split vote? If so, how close?

Seriously, this shouldn't be a close call and as such it would be ideal if unanimous, ala the Nixon case 8-0 with Rehnquist abstaining.

Regardless of which party one aligns with, the shoe will ultimately be on the other foot.

And the Court would gain a heck of a lot of credibility going forward with a unanimous decision on something like this.

[seacoaster]

Unanimity would help the Court institutionally, but I don't think that is the principal concern of several of the members of the Court. Thomas seemed to me, anyway, to signal his belief in the "unitary executive," which Sekulow reiterated over and over and over, even when the question didn't require or call for it.

I do think the Court is wrestling with a middle ground, in which Congress can be a check on the President under circumstances in which Congress is acting plainly within its sphere of power. The discussion, ongoing, about the differences between Congress investigating and Congress legislating was interesting. There was a core group who plainly see little difference -- you have to investigate an issue or a President in order to effectively legislate about it/him/her. That's Ginsburg, Breyer, Sotomayor and Kagan pretty plainly. And boy oh boy, Kagan is really smart.

This is legacy stuff, the separation of powers case of the new century and the generation. That must loom large with the Chief.

NJBill, did you listen in??

[MDlaxfan76]

Unanimity would help the Court institutionally, but I don't think that is the principal concern of several of the members of the Court. Thomas seemed to me, anyway, to signal his belief in the "unitary executive," which Sekulow reiterated over and over and over, even when the question didn't require or call for it.

I do think the Court is wrestling with a middle ground, in which Congress can be a check on the President under circumstances in which Congress is acting plainly within its sphere of power. The discussion, ongoing, about the differences between Congress investigating and Congress legislating was interesting. There was a core group who plainly see little difference -- you have to investigate an issue or a President in order to effectively legislate about it/him/her. That's Ginsburg, Breyer, Sotomayor and Kagan pretty plainly. And boy oh boy, Kagan is really smart.

This is legacy stuff, the separation of powers case of the new century and the generation. That must loom large with the Chief.

NJBill, did you listen in??

Yes, it would require some serious arm twisting to bring Thomas in. I've heard some snippets. Best to hope for would be an abstention which is extremely unlikely I'd think with him, but perhaps there's a position that he could sign onto that rejects the Administration's extreme arguments but splits the baby a bit.

Or do you leave him behind and just let him vote alone, or with one or more hard righters? I wasn't listening, so how did Gorsuch and Kav sound on this issue?

[dislaxxic]

Some early analysis:

Supreme Court Could Restrain Congress While Also Upholding Subpoenas For Trump’s Records

..

[seacoaster]

Argument analysis, FWIW:

https://www.scotusblog.com/2020/05/argu ... x-returns/

[njbill]

I did listen. Thought CSPN did a nice job, except for when they cut away briefly.

First, to the bottom line. Who wins? Beats me, but I’ll give you my guesses, below. I suspect the Court will issue a mixed-bag ruling. There are actually four cases. Three involve subpoenas by House committees (Oversight, Financial Services, and Intelligence). One involves the Manhattan D.A.

I think the House’s Oversight Committee’s case might be the weakest. They subpoenaed Trump’s records after Michael Cohen testified Trump inflated the value of his assets to apply for loans and deflated them to try to reduce his real estate taxes. Trump says this committee is investigating him and isn’t pursuing a legitimate legislative purpose. I’ll go way out on a limb and predict Trump wins 5-4 or 6-3 (Breyer). It seemed to me that most of the justices were concerned about the potential for Congress to harass the president. At the same time the Court seems to understand the House has a right to legislate. Of the three House cases, this one seems to be the closest to “investigation” as opposed to “legislation.”

The other two House subpoenas seem to have better chances. The House Financial Services Committee subpoenaed records from Trump's banks, Deutsche Bank and Capital One. Also, the House Intelligence Committee subpoenaed records from Deutsche Bank, claiming it was investigating potential leverage that foreign actors may have over Trump, his family, and his businesses. The president's lawyers argue the subpoenas are extraordinarily broad because they seek more than a decade's worth of documents, cover members of his family who have never held public office, and ask for virtually every financial detail the institutions might have about their private affairs.

It seemed to me that there was some sentiment on the Court that these subpoenas could be in furtherance of a legitimate legislative purpose, which is to amend the laws on financial disclosures, conflicts of interest, or bank fraud. The four liberal justices all seem to be disposed to rule against Trump. Alito and Thomas seem to be for Trump. Not sure about Kav (maybe Trump?). Roberts seemed to be clearly looking for a way to balance the competing interests. I assume he’ll favor a balancing test. Not clear how he’ll strike the balance. Surprisingly to me, Gorsuch seemed to be leaning in the House’s favor. Does that signal how he’ll rule? Who knows? My guess is the Court is going to rule that Congress can subpoena the president’s records, but will impose some sort of heightened need standard (one that would address possible harassment), and then remand to the trial court to determine if the standard has been met. And then the trial court’s decision would wend its way back up to the Supreme Court, but not before the election. So let’s say 6-3 (liberals plus the Chief and Gorsuch) for the House.

Giving the House two wins and one loss would send a signal to Congress that you can subpoena the president for legitimate or quasi-legit legislative reasons, but you can't investigate him (absent an impeachment) or harass him. In other words, there are limits on Congress' subpoena power.

In the last case, a NY state grand jury subpoenaed Trump’s records as part of a criminal investigation into the Stormy Daniels payoff. This one seems to be Trump’s weakest case. There seemed to be near unanimous sentiment on the Court favoring grand jury subpoenas to one degree or another. A good bit of discussion seemed to revolve around what standard should be applied to reviewing a state grand jury subpoena directed at a sitting president. The liberals advocated that the same standard used for a regular citizen should apply. Most of the conservatives seemed to push for a “heightened need” standard. I am going to go out on a limb and say the decision will be 9-0 (or maybe 8-1 or 7-2 (Thomas and/or Alito), but that the majority will find a heightened need standard applies. And the Court will remand for the trial court to decide if the standard has been met. Again, the Court would be ducking making a decision before the election. There would be a four liberal justice concurrence saying: (a) the regular standard should apply; and (b) under either standard, the state met its burden.

There was little to no discussion of the “political question” issue applicable to the House cases, which got some publicity a week or two ago when the Court ordered counsel to brief the issue. I’ve read that all sides argued to the Court in their supplemental briefs that the cases should not be dismissed on those grounds. There were comments today at the argument to the effect that the accountants/banks would comply with the subpoenas unless the Supreme Court ruled them to be invalid (which a dismissal on political question grounds wouldn’t do). There was mention that the accountants and banks did not want to run the risk of being held in contempt of Congress.

It seemed to me that some of the liberal justices thought that ruling for the House would likely result in compromises on subpoenas between Congress and presidents in the future, which is pretty much what has occurred in the past. Ruling for Trump, however, will result in full-blown stonewalling by future presidents.

Sekulow abandoned the ridiculous argument that police or prosecutors cannot even investigate a crime committed by a president while he is in office, but did argue a sitting president has full immunity from legal process (in the context of this case, immunity from having his tax returns subpoenaed). His position seems to be squarely inconsistent with the Nixon and Clinton cases. It did not seem that any justice was receptive to this absolute immunity argument. At least there don’t seem to be five votes.

Surprisingly to me, the NY state attorney said he was conceding a state could not indict a sitting president. Perhaps this was a concession he felt he needed to make to help improve his case’s chances of success. He may have felt some of the justices thought he is intending to indict Trump before the election. This concession was very disappointing to me. I don’t think it was one he absolutely had to make. Plus, I think it’s wrong as a matter of law. At least it is an issue the Supreme Court needs to decide, not some back-room DOJ flunkie. Of course, this concession does not bind future state prosecutors, but it clearly puts the kibosh on my prediction that NY would indict Trump this fall. Ain’t gonna happen.

There was some discussion about how the statute of limitations would apply if the president is immune from prosecution. It seems to me this issue also has relevance to whether a sitting president can be indicted. I’m not a criminal law expert, but I thought the SOL was tolled when the indictment was handed down. So in this case, if NY wins and gets the tax returns, why won’t they still have SOL problems if they can’t indict Trump until he leaves office? There was discussion about whether the SOL would be tolled, but while there are decent arguments it should be, the issue is entirely undecided. It is certainly possible that some future court could hold the SOL was not tolled and that any criminal charges against an ex-president are time-barred.

The NY attorney also conceded that federal courts have the power to review state grand jury subpoenas issued to sitting presidents. Yeah, maybe this Supreme Court would include that in an opinion, but I didn’t see the need to make this concession. Again, maybe he did it to try to help his case with this Court.

Most impressive justices to me: Kagan, Gorsuch. Next: Alito. Next: Roberts. Next: Breyer, Sotomayor, Thomas. Least: Ginsburg (though she should be graded on a curve), Kavanaugh.

In terms of the advocates, I thought the House’s was the weakest. The two government attorneys were competent and polished, but otherwise not remarkable. I'd put the first Trump attorney in the same category as the two government counsel. Competent, not flashy. Sekulow was Sekulow. Not too bad. Somewhat similar to what we saw at the impeachment trial, though he dialed back his NY bombast as he should have given the audience. Surprisingly to me, I though the NY state attorney was by far the best advocate today. Was very impressed with him.

There were no toilet flushes.

The only thing I can say for sure is that all of the above predictions will be wrong. Apologies to seacoaster if he heard an entirely different argument.

[seacoaster]

For a daily visit to the Nerd Bar:

https://www.scotusblog.com/2020/05/argu ... -electors/

[Brooklyn]

Today Clarence Thomas hates the EEO and affirmative action. At one time he worked for that agency and admitted that the only reason why he got anywhere was because of AA:



Oh the irony!

[seacoaster]

Pretty interesting note up on SCOTUSBlog:

https://www.scotusblog.com/2020/05/chur ... ore-294073

[seacoaster]

Order last night:

https://www.supremecourt.gov/opinions/1 ... 4_pok0.pdf

[Peter Brown]

Order last night:

https://www.supremecourt.gov/opinions/1 ... 4_pok0.pdf

And once again a ‘conservative’ justice votes with the libs and the conservative voters don’t spasm in hysteria. Weird how that happens.

I wonder when a liberal justice will ever vote against the dnc?

[seacoaster]

Order last night:

https://www.supremecourt.gov/opinions/1 ... 4_pok0.pdf

And once again a ‘conservative’ justice votes with the libs and the conservative voters don’t spasm in hysteria. Weird how that happens.

I wonder when a liberal justice will ever vote against the dnc?

I wonder when you’ll say something informed and useful. And you can bet there are “conservative voters” very disappointed in this result. But that wouldn’t allow for your uninformed trolling.

[njbill]

Regulars here know that Pete is from Boca Grande.

What I just learned is that Boca Grande means “big mouth.” I kid you not.

https://www.wordmagicsoft.com/dictionar ... grande.php

Come on guys. Do I win the Internet today, or not?

[seacoaster]

Regulars here know that Pete is from Boca Grande.

What I just learned is that Boca Grande means “big mouth.” I kid you not.

https://www.wordmagicsoft.com/dictionar ... grande.php

Come on guys. Do I win the Internet today, or not?

Yeah, so far, you’re winning today. Nice catch!

[Peter Brown]

Order last night:

https://www.supremecourt.gov/opinions/1 ... 4_pok0.pdf

And once again a ‘conservative’ justice votes with the libs and the conservative voters don’t spasm in hysteria. Weird how that happens.

I wonder when a liberal justice will ever vote against the dnc?

I wonder when you’ll say something informed and useful. And you can bet there are “conservative voters” very disappointed in this result. But that wouldn’t allow for your uninformed trolling.

Of course there are disappointed conservatives. They just don’t come fully undone like the effeminate left.

There’s a lesson in there for the readers here.

[Kismet]

There’s a lesson in there for the readers here.

Yes. Place you on the IGNORE list.

[Brooklyn]

Of course there are disappointed conservatives. They just don’t come fully undone like the effeminate right.

There’s a lesson in there for the readers here.

Fixed it for you, pal.

[dislaxxic]

Roberts Upholds COVID-19 Restrictions on Churches, Scolds Kavanaugh

You read that right...Keganaugh gets SCOLDED - in public - by the Chief Justice for ignoring reality to score ideological points.

Think about that for a minute.

THIS is the kind of guy that Mitch McConnell and, evidently, our Peter Brown types, are all gaga over having on courts across the nation. Those that

...IGNORE REALITY TO SCORE IDEOLOGICAL POINTS A SCOTUS Justice doing this? Really??

..

[cradleandshoot]

Roberts Upholds COVID-19 Restrictions on Churches, Scolds Kavanaugh

You read that right...Keganaugh gets SCOLDED - in public - by the Chief Justice for ignoring reality to score ideological points.

Think about that for a minute.

THIS is the kind of guy that Mitch McConnell and, evidently, our Peter Brown types, are all gaga over having on courts across the nation. Those that

...IGNORE REALITY TO SCORE IDEOLOGICAL POINTS A SCOTUS Jzustice doing this? Really??

..

Wow an article from Slate. I was running low on toilet paper...