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This week we'll be answering your questions, looking at some great pieces of journalism, and highlighting some of the Supreme Court's decisions.
A reader asks: The Supreme Court's term is nearing the end. Presumably the cases it has in the courts have already been decided. If so, is there any reason for the court to release its decisions piecemeal (only a few per day)?
A: In theory, the courts should release them once their cases are decided, but I am skeptical that the immunity cases have not been decided. It appears to me and other informed court observers that at least a few judges are delaying sentencing, giving felon and former president Donald Trump a week or so before the election.
A reader asks: Don't Supreme Court justices and other federal judges who are term-limited curry favor for wealth and status after their terms end?
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Answer: It beats receiving lavish gifts while on the bench! Most term limit proposals assume that judges will remain on the federal bench, but at the lower court level. Because judges retire voluntarily, the possibility of future work already exists.
A reader asks: I read that one donor is giving $50 million to President Trump and another donor is giving $20 million to President Biden, is this permissible?
Answer: Unfortunately, yes. While there are limits on direct donations to political campaigns (“hard money”) and political parties, there are no limits on donations to ostensibly independent third-party groups, such as Super PACs or Section 501(c)(4) groups, which may run ads and engage in other campaign-related activities.
Reader Question: Many people are predicting that the Supreme Court will maximize the delay by sending the immunity case back to Judge Tanya S. Chutkan to analyze which acts were presidential and which were personal, ensuring that a trial doesn't happen before the election. On the “MissTrial” podcast, Danya Perry suggested that Judge Chutkan could do that analysis by holding a “mini-trial” and bringing in witnesses and experts to speak about the facts of the case. That means that while there may not be a trial for Trump, all the facts could be put before the public before the election. What do you think about this idea?
A: Yes, some legal experts have suggested that. It may not receive as much full coverage as a trial, but the public would have the benefit of receiving incriminating evidence. It is a poor substitute for a full trial that would have already been held and completed had the Supreme Court not delayed it.
Reader Question: Hypothetically, a second-term President Biden is able to convince the incoming Democratic-majority Senate to curb the filibuster and pass term limits for Supreme Court justices. Question: Would sitting justices be required to adhere to current provisions so they can serve their life-appointed terms? Or could the Senate immediately implement term limits until the most senior justice retires every two years and there are nine sitting justices with 18-year terms? In the latter scenario, I believe all sitting justices would be able to serve at least 18 years.
A: It all depends on how Congress drafts it. The problem is that the constitutionality of all these variations will ultimately be decided by the Supreme Court. Hmm, I wonder what will happen. If rejected, the alternatives (apart from impeachment, which is virtually impossible) would be a constitutional amendment on term limits or court expansion.
A reader asks: Trump needs to be checked on the spot during the debate for the obvious lies he periodically spews. This should be done by fact-checkers present, not by Biden. Is there a plan for this?
A: It's not clear whether the moderator will do this, but there will be no independent fact-checkers present, and we expect pundits to then blather on about Trump's deluge of lies.
A reader asks: What will the Republican Party and its MAGA minions do if Trump becomes president… [had a health episode]… Would they still support him as a candidate?
Answer: If it's pre-convention, then the convention actually chooses the candidate (like in the old days). If it's post-convention, then the Republican National Committee chooses. If the president-elect becomes incapacitated after the election but before the inauguration, there is no real mechanism. The inauguration goes ahead and the 25th Amendment applies after that.
In Thursday's debate, Biden would be better off focusing on the ethically challenged and ideologically extreme Supreme Court and its (sometimes incompetent) lower judges, such as Trump appointees Eileen Cannon and U.S. District Judge Matthew Kacsmarik. The prospect of a Supreme Court filled with Clarence Thomas clones and lower courts filled with Eileen Cannons would be enough to send any rational voter into a panic.
“US farmers turn to Biden because of Trump's past farm policies,” a headline in The Guardian explains. “Fearing that Trump will hurt farmers again, a growing number of rural Americans plan to vote for Biden.” Hmm. That's a perspective we don't often see in US political reporting.
“While Joe Biden remains unpopular among farmers, many results from the 2022 midterm elections suggest that support for Democratic candidates in rural America is rebounding at the state and local level,” the article continued. “Analysis by pro-Democratic think tank Third Way found that moderate Democrats in battleground states like Pennsylvania, Michigan and Arizona, as well as Gibbs' Ohio, supported Biden by 15 percentage points more than he did in the 2020 presidential election.”
The reporter actually visited Shelby County, Ohio, and spoke to people with specific interests. How have the policies of the current and former presidents affected them? Finding out what Trump has actually done and how it has affected traditionally conservative voting bases is something that should be covered more in horse-race-centric political reporting. The report also delved into Biden's actual track record. “The survey found that under the Biden administration, farm incomes increased significantly due to government assistance and a surge in demand for agricultural products after the pandemic.”
Informative, in-depth and policy focused. More newspapers should try this!
The Supreme Court ruled on Friday in United States v. Rahimi, a case that should never have been brought, and it was about whether states can stop domestic abusers from owning guns. Can a court stop a state from restricting guns that are so dangerous that people with criminal records can't get them? The Court took this position because of its decision two years ago in New York State Rifle & Pistol Association v. Bruen, which basically said that in order to uphold gun safety laws, the Court would have to find a similar regulation from the Second Amendment era. There were no domestic violence laws then, so there are no regulations to protect abuse victims today!
In her concurring opinion, Justice Ketanji Brown Jackson explained where the responsibility lies:
I write separately because, having completed two years of post-Brune cases, the Court's experience applying the standards of its history and tradition should inform its assessment of the practicality of those legal standards. The case highlights the obvious difficulties faced by judges in the field. To be clear, today's efforts to resolve “misunderstandings” are[andings]”… is a tacit admission that the lower courts are struggling. In my view, the responsibility may lie not with the lower courts, but with us…”
The standards we establish are binding on lower court judges, who apply those legal standards to the cases before them. In my view, as this Court thinks and speaks about the relevance of history in interpreting constitutional provisions, it should keep in mind that our common law tradition of promoting clarity and consistency in the application of precedents also has a long history. Thus, when the Court suggests that one of our standards is problematic, we should pay attention.
Put more simply, “fundamentalism” doesn't actually work. Forcing the courts to take us back to the 18th century (before domestic violence laws, women's voting rights, the industrial age, etc.) will create uncertainty, confusion, and dire consequences. Insisting on anchoring gun rights in 1791 and due process in 1868 will create an America that virtually no one wants to live in, a legal system that doesn't work, and a society in which disadvantaged groups lose the progress they've made over centuries.
Frankly, Jackson's views apply to virtually every issue (guns, respect for the legislature, equal protection, substantive due process, etc.) because the fundamentalism of his colleagues has become a results-driven movement that subverts the customs, laws, and values ​​of modern America. It's not just that some justices are cherry-picking history to get the right-wing results they want; the entire movement is unworkable and perverse.
We'll be hosting an online chat next week, so please send us your questions. Questions submitted after Wednesday of next week will be included in the next Mailbag newsletter.
