Friday, July 05, 2024

Feature, Not Bug: A continuing series.

But it's really not a clear test, it's an incredibly murky test, and the court wants it to get worked out in the appellate process," Lithwick offered. "So, you know, the short answer I think we can do a ton of lawyering around this and clearly, that's what [Manhattan District Attorney Alvin] Bragg's team is going to try to do is lawyer this, and I think Glenn's right."” 
"An awful lot of this conduct by any construction of what is private unofficial acts still seems to survive, But I want to be really clear. I don't know that John Roberts knows what the test is that he's set forth in his opinion on Monday," she added.
Roberts wrote an opinion that garnered 6 votes (really only 5 1/2 votes) based on what I think was a lot of hand waving and intentional vagueness.

There was some speculation the opinion was taking so long because Roberts (as CJ; this expectation always rested on the history of Brown v Board) was seeking unanimity. I think it’s clear now he was seeking as much of a majority as he could get. And he only got what he did (ACB all but dissented on the new rule of evidence) by being as vague as possible. The evidence rule was too specific for ACB, and it’s the clearest part of the ruling. He may have needed that portion just to keep the majority of the other five.

At any rate, the directions to lower courts are vague to the point of opaque. Had he been more specific, though, it would have probably only gotten the support of Thomas and Alito. As it is, the case returns to the trial court, but what that court is supposed to do is anybody’s guess.

There’s enough slack in this the lower courts can decline to go as far as the majority does here. That allows the lower courts to reassert the standard of the law without openly defying the Supreme Court, because they pointed this radical decision, after all. I expect Trump will try for another motion to dismiss, seeking grounds for another interlocutory appeal. The Supremes, when it finally came back, could decide to let the trial play out first. It would be another sign there isn’t a majority quite ready to decide the case they declined to decide before. The Court might, in other words, want to see how the trial court’s conclusions play out in trial, giving the appellate court a full record to review, and the Supreme Court more to employ in whatever decision it finally wants to be responsible for.

The announced rule in Trump v U.S. is disruptive enough; but that’s more the new evidence rule than anything else. Much of the opinion hangs on the structure built by Fitzgerald, which did settle the issue of Presidents and civil cases. Trump (the case) tries to use that reasoning to justify immunity from criminal cases, extending it with the evidence holding. But what does this ruling actually cover, and actually exclude from evidence? Fitzgerald was clear on the former (and never raised the latter. Trump, is clear as mud.

That’s not an accident. I don’t think Roberts had the votes to settle that. I think the Court wants that issue to go back to the lower courts and stay there for, say, a year or five. While we wait and see if we can get a constitutional amendment, or get Congress to rein in this court (there are ways other than court packing). A shot or two across this Court’s bow might remind it, it isn’t as co-equal as it thinks it is.
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