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Something Has Gone Deeply Wrong at the Supreme Court

Jurists who preach fidelity to the Constitution are making decisions that flatly contradict our founding document’s text and ideals.

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F orget Donald Trump . Forget Joe Biden. Think instead about the Constitution. What does this document, the supreme law of our land, actually say about ​​lawsuits against ex-presidents?

Nothing remotely resembling what Chief Justice John Roberts and five associate ​justices declared​ in yesterday’s disappointing Trump v. United States decision​. The Court’s curious and convoluted majority opinion turns the Constitution’s text and structure inside out and upside down, saying things that are flatly contradicted by the document’s unambiguous letter and obvious spirit.​

Imagine a simple hypothetical designed to highlight the key constitutional clauses that should have been the Court’s starting point: In the year 2050, when Trump and Biden are presumably long gone, David Dealer commits serious drug crimes and then bribes President Jane Jones to pardon him.

Adam Serwer: The Supreme Court puts Trump above the law

Is Jones acting as president, in her official capacity, when she pardons Dealer? Of course. She is pardoning qua president. No one else can issue such a pardon. The Constitution expressly vests this power in the president: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States.”

But the Constitution also contains express language that a president who takes a bribe can be impeached for bribery and then booted from office: “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” And once our hypothetical President Jones has been thus removed and is now ex-President Jones, the Constitution’s plain text says that she is subject to ordinary criminal prosecution, just like anyone else: “In cases of Impeachment … the Party convicted shall … be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Obviously, in Jones’s impeachment trial in the Senate, all sorts of evidence is admissible to prove not just that she issued the pardon but also why she did this—to prove that she had an unconstitutional motive , to prove that she pardoned Dealer because she was bribed to do so. Just as obviously, in the ensuing criminal case, all of this evidence surely must be allowed to come in.

But the Trump majority opinion, ​written by Roberts, says otherwise​, ​proclaim​ing that “courts may not inquire into the President’s motives.” ​In a later footnote all about bribery, the Roberts opinion says that criminal-trial courts are not allowed to “admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.”

​​But ​​​such an inspection is​​​​ exactly what the Constitution itself plainly calls for​​​. An impeachment court and, later, a criminal court would have to​​ determine whether Jones pardoned Dealer because she thought he was innocent, or because she thought he had already suffered enough, or because he put money in her pocket for the very purpose of procuring the pardon. The smoking gun may well be in Jones’s diary—her “private records”​—​or in a recorded Oval Office conversation with Jones’s “advisers,” as​ was the case in the Watergate scandal​​​. Essentially, the​ Court ​in Trump v. United States ​is declaring the Constitution itself unconstitutional​.​​ Instead of properly starting with the Constitution’s text and structure, the ​​Court has ended up repealing them​​.

In a quid-pro-quo bribery case—money for a pardon—Roberts apparently would allow evidence of the quid (the money transfer) and evidence of the quo (the fact of a later pardon) but not evidence of the pro: evidence that the pardon was given because of the money, that the pardon was motivated by the money. This is absurd.

In the oral argument this past April, one of the Court’s best jurists posed the issue well: “Giving somebody money isn’t bribery unless you get something in exchange, and if what you get in exchange is [an] official act … how does [the case] go forward?” The answer, of course, is by allowing evidence of all three legs of the bribery stool—the quid (the money), the quo (the official act), and the pro (the unconstitutional and vicious motive). Yet Roberts’s majority opinion entirely misses the thrust of this oral-argument episode.

Claire Finkelstein and Richard W. Painter: Trump’s presidential-immunity theory is a threat to the chain of command

This is astonishing, because the impressive jurist who shone in this oral exchange was none other than the chief justice himself. John Roberts, meet John Roberts.

And please meet the John Roberts who has long believed that the judiciary shouldn’t be partisan. Over the course of his career, Roberts has repeatedly said that there are no Republican justices or Democratic justices, no Trump justices or Obama justices or Biden justices—there are just justices, period. Yet the ​​Court​ in Trump v. United States ​ split along sharply partisan lines—six Republican​ appointees,​​ three of whom were named to the Court by Trump himself,​ versus three Democrat​ic appointees​​​. ​Roberts failed to pull these sides together​​.

This is precisely the opposite of what happened in the celebrated ​​​decision United States v. Nixon ​​, also known as the Nixon-tapes case, in which​ the Court​—including three justices appointed by Richard Nixon himself—issued a unanimous no-man-is-above-the-law ruling against the president. (A fourth Nixon appointee—William Rehnquist, for whom a young Roberts later clerked—recused himself.) The ​opinion​​​ also made clear that presidential conversations with top aides are indeed admissible when part of a criminal conspiracy.

​​​​Yesterday’s liberal dissenters came much closer to the constitutional mark, but they, too, made mistakes. ​The​ir​​ biggest blunder in Trump was relying on a 1982 case, Nixon v. Fitzgerald , that simply invented out of whole cloth broad immunity for ex-presidents in civil cases. If liberal precedents lacking strong roots in the Constitution, such as Roe v. Wade , are fair game for conservatives, then mistaken conservative precedents ​ought to​​ be fair game for liberals. Fitzgerald made stuff up, and ​the liberals should have said​ so.

No one is above the law​—or, at least, no one should be​. Not presidents, not ex-presidents, and not justices either. Because the Constitution itself is our highest law, jurists across the spectrum must prioritize that document’s letter and spirit above all else. In Trump v. United States , the Court failed to do this and also failed to live up to America’s highest ideals: nonpartisan justice and the rule of law.

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George Clooney calls on president to step aside: Aging Biden no longer the man he was

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Even George Clooney — a mega-donor to President Biden’s reelection campaign — appears to have lost faith in the president’s ability to win the 2024 election.

The two-time Oscar winner, lifelong Democrat and high-profile campaign donor has formally asked the 81-year-old commander in chief to step aside so that the party can nominate a new candidate to take on former President Trump on the November ballot. Why? Because of Biden’s “fight against time,” which Clooney characterized as the only battle that POTUS cannot win.

Biden, Obama raise more than $30 million at glitzy L.A. event

President Biden joins former President Obama, George Clooney and Julia Roberts at star-studded fundraiser in L.A. that raises more than $30 million.

June 16, 2024

“None of us can,” Clooney wrote Wednesday in an opinion piece for the New York Times titled “I Love Joe Biden. But We Need a New Nominee.” “It’s devastating to say it, but the Joe Biden I was with three weeks ago at the fund-raiser was not the Joe ‘big F— deal’ Biden of 2010. He wasn’t even the Joe Biden of 2020. He was the same man we all witnessed at the debate.”

Democrats took in $30 million at that downtown L.A. fundraiser, setting a record for money generated by the party in a single night. In addition to Clooney, Julia Roberts and former President Obama headlined the event and Jimmy Kimmel acted as emcee.

Clooney wrote that Biden was a “hero” who had “saved democracy” in 2020 and called upon him to “do it again in 2024.” But, citing Biden’s poor performance during CNN’s debate last month , he joined a growing number of Hollywood backers, including those who previously wrote large checks to the campaign, feeling skittish about Biden’s prospects despite the president’s resolve to remain in the race.

Some of those going public with their angst about Biden include “Lost” co-creator Damon Lindelof, Netflix co-founder Reed Hastings, media titan Barry Diller, Disney heir Abigail Disney and Endeavor Chief Executive Ari Emanuel , brother of Rahm Emanuel, who is currently U.S. ambassador to Japan and formerly Obama’s chief of staff. Filmmaker Rob Reiner wrote Wednesday on X (formerly Twitter) that “Democracy is facing an existential threat. We need someone younger to fight back. Joe Biden must step aside.”

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In his op-ed, Clooney wondered if Biden was tired or suffering from a cold during his head-to-head with Trump. But he mostly took issue with the next-day narrative being spun by his party, arguing that Biden’s nomination was not yet a sure thing ahead of the Democratic National Convention in August. (The GOP convention starts Monday.)

“[O]ur party leaders need to stop telling us that 51 million people didn’t see what we just saw. We’re all so terrified by the prospect of a second Trump term that we’ve opted to ignore every warning sign. The George Stephanopoulos interview only reinforced what we saw the week before,” Clooney wrote. “As Democrats, we collectively hold our breath or turn down the volume whenever we see the president, who we respect, walk off Air Force One or walk back to a mic to answer an unscripted question.”

Clooney said it’s “fair” to point these things out: “This is about age. Nothing more.”

He predicted the Democrats are “not going to win in November with this president,” nor would they win the House of Representatives or retain their majority in the Senate. He said this isn’t just his opinion, but “the opinion of every senator and congress member and governor that I’ve spoken with in private. Every single one, irrespective of what he or she is saying publicly.”

“[T]he dam has broken. We can put our heads in the sand and pray for a miracle in November, or we can speak the truth,” the “Argo” and “Syriana” Academy Award winner wrote. “It is disingenuous, at best, to argue that Democrats have already spoken with their vote and therefore the nomination is settled and done, when we just received new and upsetting information. We all think Republicans should abandon their nominee now that he’s been convicted of 34 felonies.”

As Biden flounders, why aren’t more Democrats sold on Kamala Harris?

Despite her qualifications, Vice President Kamala Harris hasn’t been treated as a viable contender to Donald Trump, the presumptive GOP nominee and a felon.

As such, Clooney also criticized the presumptive Republican candidate and “the revenge tour that Donald Trump calls a presidential campaign” and called for the Democrats to seriously consider potential replacements. Who? Maryland Gov. Wes Moore, Vice President Kamala Harris, California Gov. Gavin Newsom, Kentucky Gov. Andy Beshear or Illinois Gov. J.B. Pritzker, he suggests.

“Let’s agree that the candidates not attack one another but, in the short time we have, focus on what will make this country soar. Then we could go into the Democratic convention next month and figure it out.”

It would be “messy,” he said, but “democracy is messy” and a fresh contest would “enliven our party and wake up voters who, long before the June debate, had already checked out.”

Representatives for Clooney said Wednesday that they had “nothing to add” and that the essay presented his thinking “in its entirety.”

Also on Wednesday morning, former House Speaker Nancy Pelosi (D-San Francisco) sent a rare public signal that suggested she is trying to nudge Biden to consider dropping out of the election, telling MSNBC that it’s “up to the president to decide if he is going to run” and that “we’re all encouraging him to make that decision because time is running short.”

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To defeat Trump, Dems still need Biden — whether he drops out of the race or not

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July 10, 2024

In video shared by TMZ, George Stephanopoulos says Biden can’t ‘serve four more years’

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Nardine Saad covers breaking entertainment news, trending culture topics, celebrities and their kin for the Fast Break Desk at the Los Angeles Times. She joined The Times in 2010 as a MetPro trainee and has reported from homicide scenes, flooded canyons, red carpet premieres and award shows.

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Guest Essay

A Dismissed Abortion Case Points to Internal Tensions and Dysfunction at the Supreme Court

By Linda Greenhouse

Ms. Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.

Given the breathtaking sweep of the Supreme Court’s decisions in the final days of its term, it’s easy to overlook a decision that had no sweep at all because it was a decision not to decide.

I’m referring to the court’s dismissal of the case about whether Idaho can violate federal law by barring hospitals from performing emergency abortions for women whose pregnancies present a severe threat not necessarily to their life but to their health, including their future fertility.

Last Thursday, nine weeks after hearing the argument, the court dismissed the case as “ improvidently granted ,” meaning that the court, upon reflection, should not have accepted the case for review. The litigation in the lower federal courts involved a dispute over Idaho’s defiance of that federal law. The case now returns to the lower courts, where it stood before the Supreme Court intervened on the state’s behalf.

This unexpected turn obviously pales in significance beside the court’s aggressive dismantling of the administrative state and its generous grant of substantial immunity to Donald Trump. Dismissal of a case, which happens maybe once or twice a term, has no formal meaning as a precedent and usually not much meaning at all. But it seems to me that the fate of this particular case, Moyle v. United States , has much to tell us about the Supreme Court at a supremely fraught moment. Its brief life on the court’s docket opens a window on the court’s internal tensions more revealing than the carefully polished opinions through which the justices usually speak.

In every way that counts, Moyle represents an astonishing institutional failure. Everything about the court’s acceptance of the case was irregular from the start. The justices plucked Idaho’s appeal off the court’s “shadow docket” of cases that don’t arrive as ordinary petitions for review but rather as urgent requests for some form of emergency relief. Idaho sought a stay from an injunction issued by a federal district judge barring the state from applying its recently enacted abortion ban to women with urgent health reasons for terminating a pregnancy.

Idaho’s Defense of Life Act permits abortion only to save a woman’s life or in cases of rape or incest, while a federal law, the Emergency Medical Treatment and Labor Act, requires hospitals to provide medically indicated emergency care for any condition, either by treating the patient in the emergency room or by arranging a transfer to another hospital. In those circumstances, the Federal District Court held, the 38-year-old federal law pre-empted Idaho’s abortion ban.

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