Remember that federal judge who banned the Biden administration from contact with social media? He wrote a humdinger of an opinion claiming the government had pressured Facebook and others to censor right-wing views:
Virtually all of the free speech suppressed was “conservative” free speech.... The Plaintiffs have outlined a federal regime of mass censorship.... The evidence produced thus far depicts an almost dystopian scenario.... The United States Government seems to have assumed a role similar to an Orwellian “Ministry of Truth.”
This guy was so crazy that even the Fifth Circuit—where crazy goes to thrive—couldn't stomach most of it on appeal. But they left some of the ruling in place, so the government took it to the Supreme Court. Today they punted:
Held: Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.
They denied standing and never even got to the merits, so we have no idea what they really think. But even at that it was only a 6-3 ruling, with Alito and Thomas in dissent as usual, and Gorsuch joining them.
I'm getting a little nervous. The Court seems to be dribbling out rulings that are favorable to liberals in an effort to clear the ground for some blockbuster conservative rulings. The big ones left are Chevron and Trump's immunity claim. I won't be surprised if they do some big damage to Chevron, but they can't have decided to uphold Trump's absurd total immunity claim, can they?
Can they?
What actions is Trump claiming immunity from? J6 and the fake electors?
Everything. It's good to be the King.
Pretty much this, as I understand it. And it's mostly dorm-room bong-hit logic, eg that the Constitution says you can be prosecuted even if you've been impeached, which means you CAN'T be prosecuted UNLESS you've been impeached. The problem is, there ain't a whole lotta law on "presidential immunity," and what there is deals with "official acts" while in office, which J6 and the MAL papers clearly were not. Ergo my (and others') hypothesis that the Court will use that lack of law as an excuse not to rule on the merits of the case.
That he could shoot someone on Broadway.
It’s also playing into the stolen classified docs case. And will definitely be cited in appeals of the NY and GA cases.
Re immunity, I'm still betting they're gonna avoid ruling on the merits of the case (which would pretty obviously be against Trump) and instead decide that immunity is Important and deserves Definitive Guidance, which in turn requires further Elucidation of Facts and Law at the trial and appellate levels, so they'll remand it with some instructions and a few half-baked principles and wait for it to work its way up again.
In other words, they'll play along with Trump's delay strategy AND avoid actually ruling on the matter. Win-win for the "conservatives," and much easier than actually getting a majority together on a substantive opinion.
+1
I think that's likely.
Although, consider that there are at least a couple of the Nine who think that what's going on is a pretender President (Biden) is deliberately using the criminal justice system to damage the rightful victor of the 2020 election. Alito mused during the hearing that presidential criminal immunity was necessary to ensure that an pure-and-innocent-as-the-driven-snow president (Trump) must be given immunity in order to prevent a punitive purported successor from prosecuting them for political gain.
Add to that those who are either partisan hacks and/or closet royalists, and the risk of those "some instructtions and a few half-baked principles" amounting to some sort of test that only extreme criminality of the sort recognized in colonial law escapes immunity increases.
Well, they threw out a public corruption case. Turns out, an after the fact gratuity is not a bribe after all.
You're slightly wrong. Yes, it was rejected on standing, but within the standing issue reveals how they see the merits.
Barrett is essentially saying that, so long as the gov't doesn't actually force social media platforms to conform to its demands -- that the decision ultimately remains in the hands of the social media platforms -- there is no 1A issue at stake, for which the Court can address.
Technicalities aside, this is how I see this case. Held: the government may inform the public that certain remedies/information may be lethal when in fact it is! The surprise here is the dissent which would have held that the government cannot inform the public that certain information can be lethal. IOW, if I post online an article that says that cyanide will cure your cancer, the government cannot tell the service carrier that that information could kill thousands of people (because people are gullible). What the hell is the dissent thinking?
Easy. If you’re not wealthy enough to afford your own scientific research into stuff that can kill you, you’re not wealthy enough for the government to protect you from people who want to sell you stuff that will kill you.
It is so obvious that they delayed the immunity decision to help Trump. The very model of a modern Supreme Court majority.
So, if I were a betting man, I'd bet that their ruling will be such to cause even more delay. I'd even give odds that the "decision" will be delayed into July.
Yeah I don’t know that there’s an obligation to issue a ruling by July. SCOTUS can simply take a page from Aileen Cannon and say “we’re still looking into it - see you next term” and let it ride.
SCOTUS' current term closes at the end of June and the next one starts in October. What you're suggesting is that the Court will delay its summer vacation -- Thomas won't be able to take Leonard Leo up on his offer for a $1M vacay amirite? -- and I find that highly implausible.
they can. i'd actually expect a bad ruling on trump immunity than chevron. not full immunity for anything but something that will let trump off the hook.
My bet: Roberts will have come to his senses since the immunity oral arguments and realized that declaring Trump an elected king is a) a mind-bogglingly stupid thing to do in an election year that will b) do irreparable damage to Roberts' reputation. Roberts will have convinced at least one of Barrett/Kavanaugh that delaying Trump's trial until after election day is good enough. Gorsuch will argue for at least some degree of presidential immunity. Alito and Thomas will say "fuck it" and declare for absolute immunity for Republican--and *only* Republican--presidents.
As f-ed up as all of this it, it is probably the best possible outcome at this point.
"but they can't have decided to uphold Trump's absurd total immunity claim, can they?"
If so Biden should immediately order Trump's assassination. After all, it can't be a crime if a president does it. I guess Obama and Bill Clinton can commit any crime they want as well since the law would also not apply to ex-presidents.
Jimmy Carter should go after Trump with his bare hands.
My bet is still that Thomas and Alito, at least, will opine that the particular crimes that Trump is alleged or suspected of committing can't be prosecuted as they are covered by presidential immunity. For example, storing classified information in your bathroom post term would be protected, but in your university office would not be. Attempting to persuade officials to falsify election results would be protected but, say, creating a path to citizenship for non-citizen spouses and children of US citizens would not be.
Offer of immunity will definitely not apply to Democratic presidents for Reasons. (One of which being murder is generally a state level crime. So SCOTUS will simply rule presidents are exempt from federal law but not state law, so Florida charges of murder against Biden can stand.)
The Court's goal is to make sure no Trump federal trial takes place before the election. So they will rule that a president has immunity for official acts. Then they will send the case back to the district court to decide which Trump acts were official and which weren't. Then that will get appealed all the way back to the Supreme Court, guaranteeing no trial before the election. For future presidents, all republican actions will be official. They'll need to decide about democrat actions on a case by case basis.
While my guess is that the Court (nobody called it SCOTUS when I went to law school in the '70s) will not find that Drumpf has absolute and total immunity--though that ludicrous position or something pretty close is nonetheless likely to get two (guess who) to four votes--I would bet that at least five corrupt "justices" will sign on to some kind of compromise (invented entirely from whole cloth by these ostensibly originalist judges) which finds immunity attaches to certain (risibly defined) official acts. Which practically will mean endless motions and hearings in the district court to determine whether or not immunity attaches to the acts for which Unser Drumpfenführer has been indicted and any number of long appeal processes, extended as only Drumpf attorneys (and a corrupt Court) can. IOW, even if Biden prevails, MAGA fails to block certification of the state results, the certification of the EVs in January, or stage a successful insurrection, and democracy somehow survives, don't expect to see a trial of the insurrection charges until well into 2025 if not later.
My only wrinkle on this, which I think is basically right, is that they'll want to avoid public discussion of exactly what trump did. So they won't want to send it back to Chutkan for fact-finding, but only for consideration of the law, which from what I understand wouldn't allow for the same kind of hearings that fact-finding would.
That strikes me as the kind of collusion with a Russia-colluding would-be mini-tsar that could send Sotomayor back to her chambers in tears, as she's said has happened.
This court is so unlikely to give us anything approaching reasonable or right in this case or the Chevron one that the world doesn't have powerful enough microscopes to make the odds visible.
The Court's 3 "only-slightly-crazy" conservatives are waiting on election results before ruling on merits as much as possible. The rest is kicking the can down the road. What the Court wants to see is whether Biden wins another term AND whether Democrats retain the Senate. Keep in mind that the Democrats retaining the Senate will see them loss Krysten Sinema (I-Narcissism) and Joe Manchin (I-Narcissism), two members that would never allow court-packing.
Oh, and the Idaho case. Bloomberg is saying they got a copy of the decision that was posted on the court website by mistake for a short time. I can only see the second-hand CNN report, which says they're "dismissing" the appeal. This could mean some kind of standing or other procedural basis for ruling without touching the central issue (again)-- in this case the clear enunciation of federal supremacy that all the originalists will find in Article VI of their well-thumbed pocket Constitutions. If true, this would be a damn sight better than ruling for Idaho, but likely not a good sign for the future and for those settled principles they like to talk about. But all this is only if the Bloomberg report is accurate.
I can appreciate that belief in the good faith of Supreme Court Justices is in short supply.
However, I think there is significant substance to this ruling. I find I am quite clear that, for instance, it should be impossible to prosecute Obama for ordering the mission that killed Osama bin Laden (and several other individuals who can doubtfully called "combatants").
And yet, there are indeed lines that must not be crossed. I thought that the "not part of the duties of the president and not acting as president" would be good enough.
We don't have a rule. We don't have a standard. In 240 years or so of presidents, we haven't needed a rule until now. And of course, it's Trump that requires we make a rule.
Making such a rule is not easy, I would expect it to take a long time. I am disappointed that they took the case and didn't let the 4th Circuit stand as is. But that only requires 4 justices to say yes. Not a majority.
Like I say, that's the good faith interpretation. I don't have much faith left for some of these guys.
I'm not sure why it should not be possible to prosecute any president for any crime. The key point is there needs to be a crime. If killing Osama Bin Laden broke any US laws, then why can't a prosecution be brought? The DOJ policy of not bringing federal charges against a sitting president is just that: a policy.
I understand that bad motives can result in bogus prosecutions, but sadly this is the price of meaningful freedom. A bad actor still needs to find a prosecutor to bring charges, find a judge and jury who will convict, win appeals all the way to the supreme court. And if that succeeds, then probably that is justice.
“it should be impossible to prosecute Obama for ordering the mission that killed Osama bin Laden”
Any American is free to kill people on foreign soil and not be prosecuted for it in America. Normally murders are prosecuted by the jurisdiction they occur in. So an American who goes to Mexico and murders a Mexican is never prosecuted for it in America. They’re extradited to Mexico to be prosecuted for it there, if and only if Mexico decides to prosecute it. Pakistan or Afghanistan or wherever Osama bin Laden was when he was taken out is welcome to request extradition of Obama at any time for trial there. Doesn’t mean the US has to honor that request, anymore than they do for regular Americans if they believe the charges are false or the alleged crime was just. But none of that means that presidents need immunity from American laws or American prosecutions.
Jackson made some scathing criticisms of "this court" in her dissent in the bribery case, which might conceivably reflect her hostility to other imminent majority opinions.
It's the old showbiz rule, the headliners are always the last act.
(That ignores the other old showbiz rule that I somehow doubt they'll live up to, namely "always leave 'em wanting more.")
Ah, but in showbiz, you get yanked off the stage if the audience ever decides to stop buying what you are selling, so you have to keep the ticketbuyers coming back.
For the Nine Writers in Black, they get to keep doing their schtick to a captive audience of 330 million until either they or the grim reaper decides it's time to stop.
I mean presumably there is some limit to what SCOTUS can do. Like if they ruled that all registered Democrats nationwide are no longer citizens and have their voter registrations and social security cards and passports revoked for not being Real Americans, it would probably raise enough uproar for Congress to act to reverse it. The problem is they know this, so they’ll tap dance rightward to the line at which point they think everyone will tolerate and they stay there until next year when they can ratchet a little more rightward.
You're only just now getting nervous?
With SCOTUS since 2016, simply assume the worst and move on. You'll be correct almost 100% of the time.
"The Court seems to be dribbling out rulings that are favorable to liberals in an effort to clear the ground for some blockbuster conservative rulings."
Exactly what I think too. It fits Robert's mode of operation exactly.