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In today’s @nytimes, @stevenmazie and me on how the Trump cases pose a major institutional test for #SCOTUS—and how essential it is for the justices to resolve them on terms that have at least some chance of appealing across the political spectrum:https://t.co/h7Vk64dDsz

— Steve Vladeck (@steve_vladeck) December 23, 2023

An interesting, if space limited, analysis that doesn’t quite have the courage of its proclaimed convictions.

The trouble starts here:

A universe in which the court somehow splits the difference — for example, keeping Mr. Trump on the ballot while refusing to endorse (if not affirmatively repudiating) his conduct and spurning his kinglike claim to total immunity — could go a long way toward reducing the temperature of the coming election cycle. Such an outcome could also help restore at least some of the court’s credibility.

Trouble because that’s poor political analysis (it also undermines the critique of  Bush v Gore that follows) and seems to acknowledge the Roberts Court (especially) can’t hope to craft a legally and politically astute majority decision. 

Which, yeah, is fair…

But as that paragraph follows these, the former lands with a clunk:

Yet the multiplicity of cases affords the justices an opportunity to avoid pinning themselves in still further if they keep an eye on how potential decisions will — collectively — shape the political landscape. The point is not that getting the underlying legal questions “right” is irrelevant. But when the stakes are this high and the legal questions are novel, the justices have a duty to hand down decisions that resonate across the political spectrum — or at least that avoid inciting violence in the streets. That’s not subverting the rule of law; it’s preserving it. 

Extraordinary times call for a court that embraces the art of judicial statecraft. 

The trap the court finds itself in is largely a function of its own behavior, both on and off the bench. The 6-to-3 conservative supermajority has radically expanded gun rights, circumscribed the Environmental Protection Agency’s ability to protect the environment, all but eviscerated race-based affirmative action, punched holes through the wall separating church from state and — most notoriously — eliminated the constitutional right to abortion. The past year has also seen increasing public scrutiny of the justices’ apparent ethical lapses, sunlight that pushed the justices to adopt their first code of ethics.

So Trump should stay on the ballot in Colorado because fuck the plain language of the 14th amendment? Wouldn’t that be Son of Bush v Gore?

It doesn’t help that the (correct, IMHLO) analysis of the unanimous civil rights opinions (Warren held Brown for a long time, working to get unanimity, because he knew it was so important) yields this squib:

This is also the best way to understand Chief Justice John Roberts’s much-maligned 2012 vote in the first serious challenge to the Affordable Care Act — upholding the individual mandate as a tax while rejecting it as a valid regulation of interstate commerce.

Feankly Powell’s much maligned reasoning in Roe was more persuasive than Roberts’ “right hand giveth/left hand taketh away” reasoning, even if no one really cared because it saved a government program there was no good reason for the court to shut down.

The cases under consideration here won’t quite be so results oriented.

What those (and other) rulings have in common was the sense, across the Supreme Court, that the country would be better off with a court that took appropriate measure of how its rulings would be received beyond the details of the legal analysis the justices provided. 

The court failed that test in Bush v. Gore — handing down a ruling widely perceived as Republican-appointed justices installing a Republican president via a strained (and oddly cabined) reading of the Equal Protection Clause and helping to precipitate the downturn in public opinion that figures so prominently in these cases.

I agree. But why do I still feel like the Roberts Court is going to steer straight into that iceberg?