When partisan hacks want to be philosopher kings
By 
The theory of judicial minimalism, which was hot in the early 21st century, isn’t discussed much anymore in part because it was used in such cynical ways by some Supreme Court justices, Alito and Roberts in particular. There is sometimes value in the common law practice of deciding only what is necessary to decide; there is no value in making very broad holdings and presenting them as narrow, or overruling major precedents sub silentio while asserting that you’re not.
U.S v. Nixon was not exactly a moment of glory for the Burger Court — as was evident in the text itself and the revealed in The Brethren, Burger wanted both to write the opinion and to make broad claims of executive privilege for future presidents (while reluctantly refusing to hold that they encompassed Nixon’s claims), causing the other chambers to write analysis much less sympathetic to executive privilege and demand that they be included. The result was the kind of total mess that typified Burger’s inept leadership. But the Court nevertheless accomplished two things: 1)it allowed the Nixon tapes to be released, and 2)it left the details of what executive privilege would consist of to be worked out by future courts based on cases with actual facts.
As Steve Vladeck notes, the Roberts Court is apparently about to make the Burger Court look good by disastrously failing on both counts — effectively killing the attempts to hold Trump legally accountable while also providing a roadmap to future presidential misconduct by holding ex ante which actions can be done with impunity:
Yes, allowing these charges to go forward requires at least a modicum of line-drawing, but only enough to explain why these offenses can be tried. This is the exact move that a unanimous Court made in the Watergate tapes case—holding that, although there was such a thing as “executive privilege,” it had to give way in Nixon’s case because of case-specific reasons that … have not recurred. Almost exactly 50 years later, we’re still waiting for the Court to further articulate the cases in which executive privilege can be overcome.
The broader option, whatever its value to law school casebooks, poses three distinct problems in the near-term: First, and most practically, it is likely to be much harder to write, which means, among other things, that it will take the Court longer to hand down such a decision. That may not bother the justices much, but given how much any delay benefits Trump at this point (and how much the Court could have already moved faster in how it has handled this case), the longer this takes, the more the justices are at least opening themselves up to charges that, willfully or not, they are necessarily helping Trump, even if they end up ruling against him. It may not be entirely fair to blame the justices (or, at least, only the justices) if it turns out that the January 6 prosecution can’t take place before the election, but it seems undeniable that, in that circumstance, a lot of people will.
Second, however long it takes them to do it, any forward-looking line that the justices draw will necessarily identify conduct that future presidents can engage in without any fear of criminal prosecution. Given how difficult a successful impeachment would be in our contemporary political climate (in which it’s unlikely that the Senate would convict unless the party opposite the President has a supermajority, or something close to it, in that chamber), specifically defining such a law-free zone could be exceptionally dangerous—something akin to the “loaded weapon” about which Justice (Robert) Jackson so famously warned in his Korematsu dissent.
At one point during Thursday’s argument, Justice Alito publicly worried about how, without immunity, future presidents might unlawfully try to remain in office if they fear prosecution by their successors. Given how we got here, one response might be to describe such a worry about future cases as “chutzpah.” But the more significant point is that having the Supreme Court expressly recognize a core of constitutionally immunized presidential behavior could incentivize comparably unlawful behavior by future officeholders—especially toward the end of their term, when members of Congress might hide behind easily debunked arguments that impeachments can’t continue once the officer has left office.
Third, and perhaps most importantly, there is the broader message that such a decision would send no matter when it comes down or what it immunizes in the long term. As regular readers of this newsletter know, I try to give the justices, especially those with whom I typically disagree, the benefit of the doubt as to their good faith. But faith is a two-way street. In that respect, I often come back to something my colleague, friend, and former dean Ward Farnsworth wrote two decades ago about Bush v. Gore: “those who accuse the majority of having partisan motives underestimate the good faith of the justices; but those who acquit the Court of partisan behavior may overestimate the utility of good faith as a constraint on wishful thinking.”
Indeed, with all respect to those who reacted to the tenor of Thursday’s argument with unbridled horror, it’s possible to imagine that some of the questions from the more right-leaning justices on Thursday were as much worried about the specter of a future President Trump pursuing bogus charges against (former) President Biden as they were concerned about the other way around. But that’s exactly the problem with how the justices appear to be approaching this case: As I’ve written about (at length) with respect to the Colorado ballot disqualification case, the Court has to be especially careful when it wades into the waters of high constitutional politics. One way to protect itself is to speak with one voice. Another way is to hold as little as possible.
Of course, the overriding consequence of Mitch McConnell getting his supermajority is that the Court just doesn’t have to give a shit about its public perception. The can both act as Trump’s towel boys and allow Kavanaugh/Gorsuch/Alito/Thomas’s to pronounce their inane monarchical theories, giving a license to future would-be corrupt presidents going forward. With the Senate map being what it is, who’s going to do anything about it? It’s a huge problem.
The Court should not have granted cert in this case. If it granted cert, it should have allowed the prosecution to go forward while saying as little about the underlying issues as possible. In its burning desire to immunize Trump, it’s going to make things worse now and worse in the future.