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Monday, July 08, 2024

Court Expansion Is the Only Remedy for the Partisan Super-Majority

My new column for The Hill exposes the partisan nature of the Supreme Court’s presidential immunity decision, and explains that expansion is the only path forward, even if it takes many years. Here is the gist:

A long-game strategy to fix our partisan Supreme Court

Justice Amy Coney Barrett posited that the hackery charge could be refuted if we would only “read the opinions.”

That’s fair enough. But reading just a few passages of Trump v. United States reveals that it was indeed results-driven, lacking the basic attributes of a solid constitutional decision.

Roberts shrugs off the absence of a comparable presidential immunity provision by noting that “there is no ‘separation of powers clause’ either.”

Roberts’s analogy is nonsense. There are actually three clauses in the Constitution that unambiguously provide for the separation of powers — they couldn’t be any more separated — while there is no similar textual support for absolute presidential immunity.

Roberts again waves off the plain text of the constitution, insisting that the impeachment clause “does not indicate whether a former president may, consistent with the separation of powers, be prosecuted for his official conduct in particular (italics original).”

But what else would a presidential bribe be for, other than the conduct of an official act?

The majority opinion consistently fails Barrett’s test for partisan hackery, relying more on judicial sleight of hand than on text or precedent.

Supreme Court expansion does not have a natural constituency among lawyers and the public.

But what other remedy is there for a court that has essentially legalized presidential bribery?

You can read the entire essay at The Hill.

Posted by Steve Lubet on July 8, 2024 at 01:38 PM | Permalink

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