Is It Part Of A “Grand Scheme”?

One possibility is that the Supreme Court’s questioning during oral argument over Colorado’s disqualification of Trump from the primary ballot reflected a number of serious, legitimate concerns about the novel issues raised by the state’s putative exercise of Section 3 of th Fourteenth Amendment. The other is the XAnon conspiracy theory being propounded by the left that it’s a cynical ploy to rehabilitate the Court’s public image.

Chief Justice John G. Roberts Jr. and his colleagues seemed ready on Thursday to start to rebuild the court’s reputation by presenting themselves as unified and apolitical.

He has had a bumpy ride of late, what with the leak of the decision overturning Roe v. Wade, an inconclusive investigation into that breach, a lonely concurrence in the decision itself and ethics scandals followed by a toothless code meant to address them.

All of this has contributed to dips in the Supreme Court’s approval ratings, as large segments of the public have increasingly viewed it as swayed by politics rather than committed to neutral principles and the rule of law.

By “large segments,” Adam Liptak refers to the people who read Linda Greenhouse’s screeds and still believe they can read reasoned analysis at Slate.

Richard L. Hasen, a law professor at the University of California, Los Angeles, wrote in Slate that the outline of a “grand bargain” was coming into view.

“The Supreme Court unanimously, or nearly so, holds that Colorado does not have the power to remove Donald Trump from the ballot, but in a separate case it rejects his immunity argument and makes Trump go on trial this spring or summer on federal election subversion charges,” he wrote.

When the Supreme Court rules in a way that outrages the left, it proves that the Court is made of Trumpian partisan hacks determined to achieve their reactionary goals by any means possible. But when they rule in the way the left wants, it proves the Court is made of Trumpian partisan hacks determined to deceive the public by not appearing to be Trumpian partisan hacks.

For a while, I’ve argued that the case for disqualification was fraught with open legal issues that militated against its exercise by a state regardless of whether Trump engaged in or incited insurrection. I’ve already made clear that I think he did, but that’s not the end of the inquiry. If you get your news from MSNBC or Slate, you were told there was no possibility that Colorado could lose as it was obvious that Trump was disqualified under Section 3. If you got your news from Fox, you were certain that Colorado was wrong.

If you fully considered the arguments, however, you realized that it was complicated and, in the exercise of judicial humility, would likely go against Colorado not because Trump didn’t deserve to be disqualified, but because the section was ambiguous, Congress never enacted enabling legislation and the people should not be denied the ability to vote for the candidate of their choice in the absence of clear and certain constitutional mandate. In other words, nothing that happened at oral argument was at all surprising. Or at least it shouldn’t have been.

But on the left, they cannot accept that the Supreme Court, including at least two of its “liberal” wing, were just doing their job. Particularly after Dobbs, it is unacceptable if not impossible to ascribe integrity to their rulings because no one with integrity would ever rule contrary to their desired outcome. So it must be some sort of conspiracy, or as Rick Hasen calls it, a “grand bargain.”

Tara Leigh Grove, a law professor at the University of Texas, said the case concerning Mr. Trump’s eligibility and the one on his claim of absolute immunity may as a practical matter be linked.

“History tells us that the Supreme Court does better with the public — in other words, is seen as more legitimate — when it does not rule repeatedly just for ‘one side’ of the political aisle,” she said. “So I anticipate that the justices will welcome a kind of ‘split decision’ in these cases. That is, the court can rule that President Trump remains on the ballot, and yet has no immunity from federal criminal prosecution.”

The scheme is that they give one decision to the right and one to the left, and come out smelling like a legitimate Supreme Court. It’s not that they rule in the ways they legitimately believe to be legally sound, which may (or may not) end up with a win for Trump on Colorado and a loss on absolute presidential immunity. Indeed, being immune from prosecution for having Seal Team 6 assassinate one’s presidential rival really isn’t as strong an argument as some might think.

The problem, of course, is that if such a “grand bargain” has been struck in Chief Justice Roberts’ efforts to rehabilitate the Court reputation with the public, then it would be exactly the sort of hackery of which the left complains. A Court with integrity rules without fear or favor, and does not let public approval influence its decisions. But then, lurking below the surface of this XAnon conspiracy theory is that the left cannot allow for the possibility that the conservative justices aren’t partisan hacks, but that they just lost.

13 thoughts on “Is It Part Of A “Grand Scheme”?

  1. DaveL

    How can you doubt that large segments of the public think this way? I must know three such people in my anarcho-syndicalist organic urban farming cooperative alone!

  2. Mike V.

    The left always believes hackery is afoot when they don’t get their way, and have most of my adult life. They act as if every loss is the end of the Republic as we know it. String 2 losses together in one session like Dobbs and Bruen and they really go off the deep end.Yet when conservatives lose at the Court, they are told justice was done and they need to get used to it. If liberals acted any other way, I’d suspect they’d been replaced by aliens from space.

  3. Hunting Guy

    H. L. Mencken.

    “Probably the worst thing that has happened in America in my time is the decay of confidence in the courts. No one can be sure any more that in a given case they will uphold the plainest mandate of the Constitution. On the contrary, everyone begins to be more or less convinced in advance that they won’t.”

  4. phv3773

    If the amendment is considered self-executing, the states are needed to enforce it. With the states out of the picture, there is no umpire. So the interpretation as self-executing has to be dropped and Congress is on the spot. Neither party in Congress wants to risk their leader ever getting sidelined, so they won’t act. The amendment becomes inoperable, and everyone in government is happy.

    Nothing to do with Trump. Everything to do with maintaining the status quo. I don’t read all the pundits, but none of the lawyers I read thought Colorado had a chance.

    1. Mike V.

      The only people I’ve heard touting the “Self executing” claim are the neverTrumpers. My reading of the amendment is that it is up to Congress to pass enforcement legislation. They did this with the Insurrection Statute. It’s telling to me that no US Attorney has tried to prosecute Trump under that statute if the proof is as strong as liberals claim.

      And in listening to the oral arguments, I don’t think they had a chance either.

  5. Jeffrey M Gamso

    Of course it’s political – when it wants to be. In Mr. Dooley’s famous words: “That is, no matther whether th’ constitution follows th’ flag or not, th’ supreme coort follows th’ iliction returns.”

  6. j a higginbotham

    “Probably the worst thing that has happened in America in my time is the decay of confidence in the courts. No one can be sure any more that in a given case they will uphold the plainest mandate of the Constitution. On the contrary, everyone begins to be more or less convinced in advance that they won’t. Judges are chosen not because they know the Constitution and are in favor of it, but precisely because they appear to be against it.”

    1. PK

      Did you not even bother to glance at the other comments? Combined with the facts you failed to attribute the quote and failed to present a shred of original thought, you should be ashamed of yourself. Extremely poor showing. Try better next time.

      1. j a higginbotham

        My apologies. It was supposed to be a reply to the previous comment and an obvious quote extension. I erred somehow. It happens (often, I am told). The last sentence. IMHIANALO, changes the meaning of the first few sentences from potentially blaming the populace at large for disagreeing with decisions (as I thought was the gist of the article and the sentiment of comments here) to suggesting that judges are not always honorable men of impeccable character. [As far as quote attributions, my attempts to document such in the past have failed to make the grade.] But I egress.

  7. Michael Miller

    May you be undistressed by the crimes and miscomprehensions that trouble both left and right when they lose sight of Ockham.

    And many happy returns!

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