The Supreme Court grapples with immunity
Apr 26, 2024 11:07:59 GMT -5
Marshall, david, and 2 more like this
Post by Cornflake on Apr 26, 2024 11:07:59 GMT -5
Many of us have some narrow area of expertise. When I was practicing law, I found myself usually being characterized as an appellate lawyer. The then-chief justice of our Supreme Court once chose me to teach trial lawyers what they needed to know about the appellate courts. It's an area I know better than most.
Yesterday I had several discussions about the oral argument at the U.S. Supreme Court, including one with my wife. I was reminded that I don't see such proceedings as other people do.
About 1990, my firm had a new associate who had just finished clerking for Justice Feldman on our state supreme court. I asked him if anything about the court had surprised him. He said the biggest surprise was how quickly the specific case in front of the court was forgotten as the justices grappled with what the rule should be in cases of that sort. The justices weren't primarily focused on what result would be fairest for the litigants in front of them. They were focused on adopting a rule that would apply to the case at hand and many others. They needed a rule that would be workable and would produce fair results. One reason appellate judges often ask hypothetical questions is to test a possible rule in a variety of factual contexts to see how it might work.
I thought that was very evident in yesterday's session. The court has to articulate a rule for when presidents will be immune to prosecution for their conduct. That's a hard thing to do. It's pretty clear that we will not see a decision that immunizes all conduct by a president from prosecution. But where do we draw the line? Obama ordered the killing of bin Laden. Trump ordered the killing of Soleimani. Could they be criminally prosecuted for those decisions? I don't think they should be. (Or, for technical reasons, that they could be.) But I can't offhand think of a very good test for deciding when presidents have immunity and when they don't.
Some justices were concerned that a vindictive president might harass his predecessor via criminal prosecutions, or that supporters of one candidate might prosecute the opponent for political advantage. About the only time in my life when that has ever been an arguable concern is right now. I don't think Trump is being persecuted but I understand why some people think otherwise. Usually, though, former presidents fade into irrelevance as fast as retired lawyers do. I don't think that concern should weigh very heavily in the justices' deliberations.
Most observers saw the argument as being about Trump. I don't think that was the focus of most of the justices. It's a gnarly issue and I'll be interested to see how they sort it out.
Yesterday I had several discussions about the oral argument at the U.S. Supreme Court, including one with my wife. I was reminded that I don't see such proceedings as other people do.
About 1990, my firm had a new associate who had just finished clerking for Justice Feldman on our state supreme court. I asked him if anything about the court had surprised him. He said the biggest surprise was how quickly the specific case in front of the court was forgotten as the justices grappled with what the rule should be in cases of that sort. The justices weren't primarily focused on what result would be fairest for the litigants in front of them. They were focused on adopting a rule that would apply to the case at hand and many others. They needed a rule that would be workable and would produce fair results. One reason appellate judges often ask hypothetical questions is to test a possible rule in a variety of factual contexts to see how it might work.
I thought that was very evident in yesterday's session. The court has to articulate a rule for when presidents will be immune to prosecution for their conduct. That's a hard thing to do. It's pretty clear that we will not see a decision that immunizes all conduct by a president from prosecution. But where do we draw the line? Obama ordered the killing of bin Laden. Trump ordered the killing of Soleimani. Could they be criminally prosecuted for those decisions? I don't think they should be. (Or, for technical reasons, that they could be.) But I can't offhand think of a very good test for deciding when presidents have immunity and when they don't.
Some justices were concerned that a vindictive president might harass his predecessor via criminal prosecutions, or that supporters of one candidate might prosecute the opponent for political advantage. About the only time in my life when that has ever been an arguable concern is right now. I don't think Trump is being persecuted but I understand why some people think otherwise. Usually, though, former presidents fade into irrelevance as fast as retired lawyers do. I don't think that concern should weigh very heavily in the justices' deliberations.
Most observers saw the argument as being about Trump. I don't think that was the focus of most of the justices. It's a gnarly issue and I'll be interested to see how they sort it out.
