Tuesday, July 02, 2024

Closing Time Somewhere

Let me give you Fitzgerald at 754:
But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. See Nixon v. Administrator of General Services, 433 U. S. 425, 433 U. S. 443 (1977); United States v. Nixon, supra, at 418 U. S. 703-713. When judicial action is needed to serve broad public interests -- as when the Court acts not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, supra, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon, supra -- the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President's official acts, we hold it is not.
The page ends with a footnote to that last sentence which is also worth noting:
The Court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions. See United States v. Gillock, 445 U. S. 360, 445 U. S. 371-373 (1980); cf. United State v. Nixon, 418 U.S. at 418 U. S. 711-712, and n.19 (basing holding on special importance of evidence in a criminal trial and distinguishing civil actions as raising different questions not presented for decision). It never has been denied that absolute immunity may impose a regrettable cost on individuals whose rights have been violated. But, contrary to the suggestion of JUSTICE WHITE's dissent, it is not true that our jurisprudence ordinarily supplies a remedy in civil damages for every legal wrong. The dissent's objections on this ground would weigh equally against absolute immunity for any official. Yet the dissent makes no attack on the absolute immunity recognized for judges and prosecutors. 
Our implied rights of action cases identify another area of the law in which there is not a damages remedy for every legal wrong. These cases establish that victims of statutory crimes ordinarily may not sue in federal court in the absence of expressed congressional intent to provide a damages remedy. See, e.g., Merrill Lynch, Pierce, Fenner Smith, Inc. v. Curran, 456 U. S. 353 (1982); Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U. S. 1 (1981); California v. Sierra Club, 451 U. S. 287 (1981). JUSTICE WHITE does not refer to the jurisprudence of implied rights of action. Moreover, the dissent undertakes no discussion of cases in the Bivens line in which this Court has suggested that there would be no damages relief in circumstances "counseling hesitation" by the judiciary. See Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 403 U. S. 396; Carlson v. Green, 446 U. S. 14, 446 U. S. 19 (1980) (in direct constitutional actions against officials with "independent status in our constitutional scheme . . . judicially created remedies . . . might be inappropriate"). 
Even the case on which JUSTICE WHITE places principal reliance, Marbury v. Madison, 1 Cranch 137 (1803), provides dubious support, at best. The dissent cites Marbury for the proposition that 
"[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." 
Id. at 5 U. S. 163. Yet Marbury does not establish that the individual's protection must come in the form of a particular remedy. Marbury, it should be remembered, lost his case in the Supreme Court. The Court turned him away with the suggestion that he should have gone elsewhere with his claim. In this case, it was clear at least that Fitzgerald was entitled to seek a remedy before the Civil Service Commission -- a remedy of which he availed himself. See supra at 457 U. S. 736-739, and n. 17.

Although the highlighted portion of that footnote is the only part relevant to our concerns, I don’t want to be accused of doing what Roberts did: proof texting, as we called it in seminary. Or distorting the case law, as the lawyers say.

Fitzgerald was a case regarding presidential immunity from civil cases. On page 754 the Court distinguished that from criminal cases. Which makes it all the more egregious Roberts cites that very page for support of his conclusion.

Immunity is jurisdiction. It lifts jurisdiction from the courts for matters covered. Sovereign immunity means the court cannot decide hear civil claims against the state. The Speech and Debate clause means the court cannot hear civil suits raised by things said by members of Congress. Presidential immunity means the court cannot hear claims against the President; for, per Fitzgerald, official acts. The Fitzgerald court did not apply that to criminal prosecutions; only civil claims.

Here’s a more legible sample of the relevant quote from the majority opinion:

What Roberts says is actually the dead opposite of what  Fitzgerald says. He completely excises the reference to US v  Nixon, and really only cites the case because it gave us the “official/unofficial” dichotomy that Roberts uses to fig leaf his way into absolute immunity but-not-really. And yes, Roberts does it by ignoring any public interest in a criminal prosecution of the president there might be. Which sounds like a dandy sound-bite argument for a 28th Amendment: the legitimate public interest in seeing that no one is above the law.
That “tricky part" is a feature, not a bug:
Luckily for Trump, per the Court’s ruling, he seems to have led the Jan. 6 insurrection in a way that secures him near-blanket immunity. Even some actions Trump took that look a lot like unofficial acts — tweets that egged on the crowds, his speech at the Stop the Steal rally on the Ellipse — might just merit some immunity after all, Chief Justice John Roberts mused in his majority opinion.
This opinion is tailored to Trump. By design it will keep at least the D.C. case in appeals for years. Trump may eventually stay out of prison, but he won’t stay out of the poorhouse. Which will become clear as the Court faces the fact questions of what is, and is not, an  “official” act of the presidency. That’s gonna eat up more than a few years, and not necessarily in interlocutory appeals. But governments don’t run on a balance sheet, and don’t get tired. Trump will run out of money long before they run out of interest. There’s a lot Roberts can do; but he can’t change the gravitational constant of the universe. If he’s going to do this with plausible deniability, he has to try to hide his goal.

So Trump may still be in appeals when the 28th Amendment is passed. Which amendment may well go from conversation to campaign foundation:
And there’s also the Trump v. reality crowd: Although one could say the GOP understands the court’s decision perfectly.  But the GOP’s devotion to Trump is not matched by the rest of the population. And Biden can play those two against the middle. Because if the rest of the country understands the court’s opinion, Trump is toast. It is, after all, a pretty simple proposition:
Posted by at

No comments:

Post a Comment

Subscribe to: Post Comments (Atom)