The Disesteemed Court

They saved their worst for last.  Though it seems hard to believe given the quality of some of their earlier decisions this term, the majority of the Justices left to the end three of the more stunning opinions issued by an increasingly demeaned institution--those regarding presidential immunity, federal administrative law and what are called "bump stocks."

The majority opinions in these cases seem to be contrived.  That is to say, they appear to have been prepared not through a process of reasoning, but instead in support of a desired result.  The rationales employed strike me as examples of special pleading.  The Justices making up the majority agree on an end to be achieved, and direct their clerks (who do the bulk of the research and writing) to find caselaw and, where necessary, other authority supporting that end.  This is something lawyers do all the time, of course, in the service of clients.  But while one is justified in expecting that the Justices, or at least their clerks, are familiar with the law and what lawyers do (which may be wishful thinking in some cases), there's also an expectation that they will transcend special pleading and make an impartial decision, not one that is consistent with their belief of what is appropriate.  

But more and more we see a court filled with unabashed ideologues and toadies of the wealthy and special interests which appeal to their vanity and, it's sad to say, their expectation of rewards. They feel entitled to reward for having been placed in a position which promises to them perpetual employment in an exalted position which many of the well-to-do see as rendering them very useful to their quest to become even more well-to-do and powerful.

Immunity from criminal prosecution isn't something to be easily and broadly granted to public servants.  Even in the time of the Roman Republic, officials and magistrates were immune only during their term of office.  Once that term expired or was otherwise terminated, they could be prosecuted for their actions taken while, e.g. consul or governor.  During the Republic, private citizens could bring prosecutions.  A Roman magistrate was thus much more exposed to prosecution than any official could be now.  

The fact that no former president has been subject to prosecution until now indicates that this isn't something that is likely to occur, so it's difficult to understand why the need for immunity is pressing or why it should be of such a concern.  Just what is it that a president could do which requires the protection of absolute immunity from prosecution?  In what way would the possibility of prosecution hinder a president?  A case in which a former president is prosecuted for electoral fraud, or for mishandling classified documents doesn't raise concerns that prosecutions for the performance of official or significant acts will be forthcoming.  A prosecution for encouraging a riot or insurrection is similarly one which we may expect not to arise often.

It's true that presidents are not protected in the case of unofficial duties by reason of the recent decision, but there is nothing in our history or in the law which indicates absolute immunity for "official" action was ever contemplated by the Founders or anyone else.  That is characteristic protection of a monarch or autocrat, something those who established this nation sought to avoid.  And if, as must be acknowledged, the president has an obligation to enforce the laws of the United States, and preserve, protect and defend its Constitution, how would it be possible for a president to be immune from conduct contrary to those laws or the Constitution?  Such conduct could easily be described as "official" however according to the majority opinion, if it involved making use of the authority of the office of the president.

Requiring lower courts to determine what is or is not official assures that the law in this respect will be uncertain and confused until such time as the Supreme Court itself takes on the burden it refuses to take on now, but instead foists on others.  It is a recipe for chaos.  Having created such a standard, it seems cowardly to leave it to others to determine its meaning and consequences.

The majority's opinion in the Chevron case, considered in combination with the Trump case, suggests that it has little regard for the lower courts which must now cope with the problems which will result.  District Courts will now have to grapple with cases which normally would be handled by the agencies themselves or administrative tribunals.  District Courts are overwhelmed by litigation already; what will happen to them now is anyone's guess.  It would be interesting to determine whether the current Justices have any experience in the actual litigation of cases in court, or any appreciation of the time and expense required to obtain a decision.

The bump stock case represents a kind of exaltation of minutia, a focus on definition over all else which is an expression of the Court's increasing detachment from the reality of life in the United States.  The Justices have become monks of sorts.  They sit secure and isolated in the Court, which has become a kind of monastery in which they and their clerks and staff peruse scriptures and commentaries, issuing bans and proclamations which rule our lives, without concern for the consequences.