Applying the Insurrection Clause to the presidency would have given rogue states too much power.

By David B. Rivkin, Jr., and Lee A. Casey

February 7, 2024, in the Wall Street Journal

The case of Trump v. Anderson, in which Donald Trump asks the Supreme Court to reverse a ruling that bars him from Colorado’s presidential ballot, raises many complicated legal and factual questions. The justices should ignore them and decide a simple one: Does Section 3 of the 14th Amendment, which disqualifies certain former officeholders who have “engaged in insurrection,” apply to the presidency?

As Michael Mukasey has argued in these pages, the answer is no. Those who are covered by the Insurrection Clause are specifically disqualified from serving as members of Congress or the Electoral College—not as president or vice president. They are also barred from state office and from “any office, civil or military, under the United States.” But “any office” refers to appointive posts such as judges, generals and cabinet secretaries, and “officers of the United States” are appointed, not elected.

This raises an obvious question: Why would the authors of the 14th Amendment exclude the presidency? For two compelling and practical reasons, which reinforce Section 3’s plain meaning.

First, by the time the amendment was ratified in 1868, the states had largely adopted a system whereby presidential electors, instead of being appointed by state legislatures, were chosen by popular vote after committing to a particular candidate. If no former Confederates (or more modern insurrectionists) could stand for election as presidential electors, there would be little chance of an insurrectionist president. (As Mr. Mukasey also observed, if the president were covered, there would be no reason to cover presidential electors, who wouldn’t be able to elect an insurrectionist if they wanted to.)

Second, there was no way to cover the presidency without violating the Constitution’s established federalism principles, which require states to act uniformly when dealing with federal laws and institutions. These principles are at the root of several constitutional provisions, including the equal representation of states in the Senate, the Supremacy Clause and the Full Faith and Credit Clause. These provisions are indispensable in making the federal republic functional.

Applying Section 3’s disqualification to the presidency would create exactly the uniformity problem the Supreme Court now faces—different states reaching different conclusions about what is and isn’t an insurrection in the context of a national election.

There is ample evidence that the 14th Amendment’s drafters paid great attention to federalism concerns. This is particularly true regarding the amendment’s first two sections, which dramatically reshaped the relationship between U.S. citizens and the federal and state governments by requiring states to respect federal constitutional rights. As legal scholar Kurt T. Lash recounted in “Federalism and the Original Fourteenth Amendment,” a 2019 article, radical Republicans, who favored stronger federal power, clashed with moderate Republicans determined to preserve states’ rights under the Constitution’s original Madisonian federalism architecture. It is implausible that they would have fought hard to protect federalism while permitting each state to determine presidential disqualification for itself.

In U.S. Term Limits v. Thornton (1995), the Supreme Court held that states couldn’t impose their own qualifications on members of Congress. Justice John Paul Stevens’s majority opinion discussed at length how elections to the national legislature involved the people of the U.S. rather than citizens of each state, requiring that qualifications be nationally uniform. This logic is even more compelling when it comes to the president, who is elected by the entire nation. As Alexander Hamilton wrote in Federalist No. 68, the Framers made the “appointment of the president” depend “in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment”—members of the Electoral College.

The Constitution authorizes state legislatures to determine how presidential electors are selected—and even to appoint them directly, as Colorado did in 1876—and the qualifications for serving as president are stated in the constitutional text. There is no indication that the states may interpret these for themselves. Stevens wrote that while states can adopt “election procedures” (his emphasis) that govern access to the ballot—such as signature requirements for independent candidates or “sore loser” provisions that bar a third-party run by a former candidate for a major-party nomination—they can’t set or revise qualifications for federal office.

Some of Mr. Trump’s opponents have pointed hopefully to Hassan v. Colorado, a 2012 decision of the 10th U.S. Circuit Court of Appeals in which then-Judge Neil Gorsuch upheld the state’s authority to bar from the ballot a naturalized citizen who wanted to run for president. Abdul Karim Hassan asserted an eccentric theory that the 14th Amendment vitiated the requirement that the president be a natural-born citizen. Judge Gorsuch ruled that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office”—not that state officials or judges could decide what the qualifications for federal office are.

The meaning of “natural-born citizen” is open to dispute in certain unusual cases involving would-be candidates born overseas to American parents or in unincorporated U.S. territories (where the Constitution doesn’t fully apply). If such a dispute arose and states responded to it differently, the federal courts would have to intervene quickly to impose uniformity. To avoid precisely that sort of situation, the drafters of the 14th Amendment left the presidency out of Section 3.

A Supreme Court decision to that effect would be consistent with the doctrine that judges should avoid deciding constitutional issues unnecessarily. Was the riot of Jan. 6, 2021, an “insurrection”? If so, what does it mean to have “engaged” in it? Does disqualifying someone from office require an act of Congress or a criminal conviction? These questions may be pertinent in future cases, but not in Trump v. Anderson.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/colorado-cant-disqualify-trump-from-2024-election-c12a4bc9

By David B. Rivkin, Jr., and Lee A. Casey

Nov. 17, 2023, in the Wall Street Journal

If you look at the Supreme Court’s new Code of Conduct as an attempt to appease the justices’ antagonists in Congress and the media, it is a total and predictable failure. But in substance it is an important rebuke to those critics. “Congress must continue its efforts to hold the judiciary accountable,” Sen. Majority Leader Chuck Schumer tweeted in response.

The code and the justices’ accompanying commentary make clear that Congress has no such authority. The justices describe the court’s unique role in America’s constitutional system and affirm several important principles:

• The Supreme Court isn’t merely a part of the judiciary; it is its head. The Constitution vests the judicial power “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Congress can no more subject the court to lower-court supervision, as some lawmakers have urged, than it can authorize a federal officer to review and reverse presidential decisions.

Moreover, aside from the impeachment power, the Constitution gives neither Congress nor the court as a whole disciplinary power over individual justices. The only substantive authority Congress has over the court’s judicial function is the power to legislate exceptions and regulations of its appellate jurisdiction.

• The decision to recuse oneself from a case is an “inherently judicial function.” As such, it is at the core of the court’s constitutional function and can’t be regulated in any manner by the political branches.

• The justices have a “duty to sit.” That means it’s improper for a justice to recuse himself from a case merely for convenience or to avoid controversy. As the justices state in the commentary, this duty is stronger for them than for lower-court judges: “The absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue.”

• The “rule of necessity” requires the justices to decide a case if most or all of them would ordinarily be disqualified under the code. Recusal requirements must give way when following them would deny the litigants a judicial determination to which they are otherwise entitled.

It’s significant that all nine justices signed the document. After Justice Samuel Alito told the Journal in a July interview that Congress lacks the authority to regulate the high court, legal pundits speculated that other justices might disagree. Now all the court’s members have made clear that they share the same basic understanding of their constitutional role and authority. Any justice who disagreed could have dissented, so the code and commentary carry the same institutional weight as a unanimous decision.

The code makes plain that the justices recognize the importance of ethical constraints, but it also maintains the court’s independence, including the independence of its individual members, from recent efforts by Congress to aggrandize itself at the court’s expense.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/the-justices-ethics-code-rebukes-their-critics-f147db25

By James Taranto and David B. Rivkin, Jr.

October 1, 2023, in the Wall Street Journal

One of America’s great First Amendment pieties holds that the Constitution protects “the principle of free thought—not free thought for those who agree with us, but freedom for the thought that we hate.”

That observation comes from Justice Oliver Wendell Holmes’s dissent in U.S. v. Schwimmer (1929). A subtly more sweeping variation—you might call it the anything-goes theory of the First Amendment—is that any limit on speech opens the door to broad censorship, and therefore if the courts protect speech that has no obvious value, we can be confident of their vigilance against limiting speech that really matters.

First Amendment lawyer Floyd Abrams appealed to that logic in a 2010 interview with the Journal. Amid the left’s denunciations of Citizens United v. FEC, he described his effort to persuade the American Civil Liberties Union’s board to continue opposing restraints on campaign speech.

“I said to them: Look, you bring cases, such as one to strike down a law of Congress which was aimed at ‘virtual child pornography’—not real children being filmed, but otherwise wholly pornographic,” Mr. Abrams recounted. “I said: You didn’t do it because you wanted to protect the folks who like to watch child pornography. You did it because you thought the government shouldn’t be trusted to make content decisions about who watches anything.”

If any recent member of the Supreme Court followed the anything-goes theory, it was Justice Anthony Kennedy, whom Mr. Abrams described as “all by himself on the court” as “the single most consistently protective jurist of First Amendment rights.” Justice Kennedy was the author of both Citizens United and Ashcroft v. Free Speech Coalition (2002), the other case to which Mr. Abrams referred.

Justice Samuel Alito, by contrast, vigorously rejects the anything-goes theory. “The First Amendment was not intended to prohibit any regulation of speech,” he said in a Journal interview on July 7. On occasion that view has left him alone in dissent against a free-speech claim.

Even so, in the vast majority of cases he’s a strong defender of the freedom of speech. He accepts Holmes’s dictum and cited it in Matal v. Tam (2017), in which the court held that the government had violated a rock band’s constitutional rights by denying its trademark application for its racially insensitive name.

In oral arguments, Justice Alito has a knack for posing scenarios that reveal the untenability of speech restrictions, particularly on political speech. In Minnesota Voters Alliance v. Mansky (2018), the court reviewed a statute banning “political” attire at polling places. Justice Alito asked if a National Rifle Association T-shirt would be permitted.

“No, it would not,” the state’s lawyer said.

“How about a shirt with the text of the Second Amendment?”

“I think that would be viewed as political.”

“How about the First Amendment?” The lawyer said that would be OK but couldn’t explain why. He lost the case.

When the court first heard Citizens United in 2009, Justice Alito asked Deputy Solicitor General Malcolm Stewart if federal campaign-finance laws applied to books. When Mr. Stewart said they did, Justice Alito got to the heart of the matter: “The government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation?” Rearguing the case a few months later, then Solicitor General Elena Kagan admitted: “The government’s answer has changed.”

Yet Justice Alito has rejected free-speech claims when “what we were dealing with was speech that had little if any value, and there were established and cabined rules for saying that it shouldn’t be protected in those cases,” he says. He wasn’t yet on the court when it decided Free Speech Coalition but cites a “trilogy of cases” in which he dissented on this basis:

• In U.S. v. Stevens (2009), an 8-1 majority struck down a federal criminal statute against “knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain.” Justice Alito saw such videos as analogous to actual child pornography (as distinct from the virtual kind), which entails committing a violent act “in the process of creating the speech.”

• In Snyder v. Phelps (2011), also decided 8-1, the justices ruled that the First Amendment shielded a fringe religious group from liability for staging a lawful but grotesque protest outside the funeral of a U.S. Marine. “I thought this was an example of the established tort of the intentional infliction of emotional distress,” Justice Alito says.

• In U.S. v. Alvarez (2012), the justices struck down the Stolen Valor Act of 2005, which made it a crime to claim falsely “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” “Alvarez involved speech that was false,” Justice Alito says. “You could prove the falsity of it to a scientific, mathematical certainty.” Justices Antonin Scalia and Clarence Thomas joined his dissent, which said that such claims inflict “real harm on actual medal recipients and their families.”

As he deliberated over these cases, Justice Alito weighed the anything-goes approach. “I did think at the time of those decisions: You know, my colleagues might have something,” he says. “If we say that . . . free speech has to prevail even in these outrageous situations, maybe in a later case, when what’s involved is important speech, they’ll hold firm, they’ll resist the pressure to give in.”

But several of his colleagues who backed protection of outré speech in those cases have endorsed restrictions on core political speech in others. Justices Stephen Breyer and Sonia Sotomayor voted to let Minnesota’s T-shirt ban stand. Four justices dissented from the pro-free-speech holdings in Citizens United, and Justice Alito’s vote was pivotal: His predecessor, Justice Sandra Day O’Connor, had gone the other way in McConnell v. FEC (2003).

The ACLU was long a redoubt of free-speech absolutism, but today Justice Alito is a more resolute defender of core political speech. Mr. Abrams lost the internal debate over Citizens United as the board changed its position and endorsed “reasonable” limits on campaign contributions. “The ACLU doesn’t say what ‘reasonable’ means, so the government will doubtless supply the definition,” Mr. Abrams and two other ACLU dissenters wrote in an April 2010 Journal op-ed.

Then there’s 303 Creative v. Elenis (2023), in which the justices held 6-3 that the state of Colorado can’t compel a web designer to create sites celebrating gay weddings. “A lot of the dissent,” Justice Alito says, “involved providing public accommodations in the ordinary sense of the word—allowing someone to eat at a restaurant, allowing someone to rent a hotel room, or the sale of an off-the-shelf product.” Those aren’t expressive acts, and “the woman who operated the company said she didn’t discriminate in that way.”

He notes that both sides in the case “stipulated that this was pure speech.” The right to speak against same-sex marriage is important enough that Justice Kennedy’s majority opinion emphasized it in Obergefell v. Hodges (2015), even as it declared that gay couples have a constitutional right to wed. But the ACLU filed a friend-of-the-court brief in 303 Creative siding with the state on the grounds that its application of the law imposed only an “incidental burden” the owner’s constitutional rights.

By now it’s unsurprising that the ACLU would take such a position. A more poignant rebuttal of the anything-goes theory is that at an earlier stage of the case, six legal scholars made the same argument to the 10th U.S. Circuit Court of Appeals. The first signer of that April 2020 brief: Floyd Abrams.

Mr. Taranto is the Journal’s editorial features editor. Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/justice-alito-view-of-first-amendment-aclu-offensive-speech-political-c760fe06

By David B. Rivkin, Jr., and Lee A. Casey

September 16, 2023, in the Wall Street Journal

Justice Samuel Alito has refused a demand from Senate Democrats that he disqualify himself from a pending case because of an interview in this newspaper. One of us (Mr. Rivkin) is on the legal team representing the appellants in Moore v. U.S. and conducted the interview jointly with a Journal editor.

In a four-page statement Sept. 8, Justice Alito noted that other justices had previously sat on cases argued by lawyers who had interviewed or written books with them. “We have no control over the attorneys whom parties select to represent them,” he wrote. “We are required to put favorable or unfavorable comments and any personal connections with an attorney out of our minds and judge the cases based solely on the law and the facts. And that is what we do.”

The recusal demand came in an Aug. 3 letter to Chief Justice John Roberts signed by Senate Judiciary Committee Chairman Dick Durbin and the committee’s other Democrats, excluding Georgia’s Sen. Jon Ossoff. It is part of a campaign against the court’s conservatives by Democratic politicians, left-wing advocacy groups and journalists whose goals include imposing a congressionally enacted code of ethics on the high court.

Although there already is a judicial ethics code, propounded by the U.S. Judicial Conference, it applies only to the lower federal courts, which Congress established. Proposals to create a Supreme Court code of conduct—including onerous and enforceable recusal requirements—raise fundamental issues of judicial independence and separation of powers. Chief Justice Roberts noted in NFIB v. Sebelius (2012) that the justices have a “responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution.”

Congressional imposition of such rules would do precisely that. Justice Alito put the point strongly in the Journal interview. “Congress did not create the Supreme Court,” he said. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.” To be sure, Article III authorizes Congress to regulate the court’s appellate jurisdiction, and Justice Alito followed his observation with this caveat: “Now, they have the power of the purse, so they have the ability to take away all of our money if we don’t do what they want. So as a practical matter, they have a lot of authority. But as a constitutional matter, they don’t.”

The Supreme Court’s independence is critical to America’s constitutional structure. As James Madison observed in his notes of the Constitutional Convention, “if it be essential to the preservation of liberty that the Legislative Executive & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other.”

The political branches—Congress and the president—have overlapping powers that bear on the same policy issues. They also have effective tools at their disposal to fight encroachments on their authority. By contrast, the Supreme Court has the authority only to “say what the law is,” as Chief Justice John Marshall put it in Marbury v. Madison (1803). For the rule of law to prevail, the court has to carry out its duties free of any interference from the political branches. Yet its status as a countermajoritarian institution with no popular constituency makes it vulnerable to political attack.

The Constitution protects the judiciary by conferring life tenure on the justices and other Article III judges. They can be removed from office only through impeachment and conviction, and Congress is prohibited from reducing their salaries. Although lawmakers have enacted statutes establishing procedural and evidentiary rules for the lower federal courts, there is no constitutional basis supporting such authority over the Supreme Court. And while Congress first enacted recusal rules for lower courts in 1792, it didn’t extend them to the Supreme Court until 1948.

Even with respect to the lower courts, Congress doesn’t have a free hand. Recusal involves a core judicial function—the exercise of judgment in the same manner as deciding other legal issues. All recusals are determined case by case, considering the litigants and issues raised. History supports the premise that this is an inherent part of “judicial power,” belonging exclusively to the courts. In British and colonial courts alike, recusal decisions were handled entirely by judges, with no legislative input.

Congress can no more regulate this core judicial function than it can direct the president’s exercise of his core functions. As the Supreme Court confirmed in Trump v. Mazars (2020), which involved competing presidential and congressional claims, the resolution of separation-of-powers questions must take into account whether one branch of government is using its power to “aggrandize” itself at another’s expense or to gain some “institutional advantage.” The current efforts by Senate Democrats, while clothed in a concern for ethics, are plainly designed to weaken the court and put it under Congress’s thumb.

There is no evidence that the Supreme Court needs new recusal rules or has an ethics problem at all. Corruption inherently doesn’t loom large as a problem for the federal judiciary. The president and members of Congress must run for election, which requires them to raise campaign money. Both political branches provide tangible benefits to private parties through the creation or administration of spending programs and the letting of government contracts. This creates possibilities for corrupt influence.

Federal judges, by contrast, have life tenure and, as per Article III, hear only “controversies” that are brought before them. Like the president and other executive-branch officials, they are subject to impeachment for bribery or other corrupt acts. But fewer than a dozen jurists have been removed from office in more than two centuries. Recent accusations of “corruption” against conservative justices mostly involve their social activities with friends who have no pending cases before the court and likely never will. The critics seem untroubled (and rightly so) by similar behavior from liberal justices.

As Justice Alito’s statement notes, “recusal is a personal decision for each Justice.” Justices may look to the Judicial Conference’s Code of Conduct for guidance when considering whether to recuse themselves from a case. Although the federal statute requiring recusal in certain defined circumstances applies to the high court, the justices have never ruled on whether that application is constitutional.

The law, known as Section 455, incorporates standards anchored in traditional common law, so that they are arguably consistent with the original public meaning of Article III’s term “judicial power, exercised by the Supreme Court.” They mostly involve financial or family interests in a particular case. A judge might recuse himself, for instance, if a relative or a company in which he owns stock is a party to a case. Justices interpret and apply the law’s provisions in a flexible enough way to preserve judicial independence.

That flexibility is illustrated by U.S. v. Will (1980), in which the justices rejected the proposition that Section 455 obligated the entire court to recuse itself from hearing an appeal of a lawsuit, brought by 13 federal district judges, challenging the validity of statutes that repealed previously enacted cost-of-living pay increases for the judiciary. The decision by Chief Justice Warren Burger invoked “the ancient Rule of Necessity”: Because every judge had a financial interest in the outcome, a ruling by disinterested judges was a logical impossibility. Although Justice Harry Blackmun recused himself, the court held 8-0 that the repeal was constitutional only when it took effect before the increase did.

Even a single justice’s recusal can be harmful. Justice Alito’s statement related to Moore v. U.S. cited his “duty to sit,” a principle Justice William Rehnquist elucidated in a memorandum rejecting a motion to recuse himself from Laird v. Tatum (1972). Rehnquist noted a consensus among federal circuit courts of appeals “that a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” That duty, he argued, is even stronger for a justice, whose recusal “raises the possibility of an affirmance of the judgment below by an equally divided Court. The consequence attending such a result is, of course, that the principle of law presented by the case is left unsettled.”

When a judge serving on a lower court is recused, another judge is assigned to the case and the litigation goes forward. That’s impossible when a member of the high court is recused. No one can sit in for a justice. Thus, while lower federal judges generally resolve doubts by recusing themselves, the opposite presumption is appropriate for the Supreme Court.

In addition, if the duty to sit were weakened, there is a real danger that litigants would use recusal motions strategically to affect the outcomes of cases. Public-policy litigation often comes before the court through test cases, in which litigants have been selected with a view toward the current or likely position of the federal circuit courts with jurisdiction over their place of residence or operations. In contentious areas of the law, those positions may be markedly different, reflecting the balance of judges with different judicial philosophies on the circuits.

A circuit split is one of the principal reasons why the Supreme Court will agree to hear a case. In this context, two justices’ recusals could turn a losing case into a winning one. A single recusal and a tie vote would leave the split unresolved, so that different parts of the country would be governed under different interpretations of federal law. The Supreme Court Ethics, Recusal and Transparency Act, which Mr. Durbin’s committee advanced along party lines in July, would subject the justices’ recusal decisions to review by either their colleagues or a panel of lower-court judges, creating temptations within the judiciary itself to game the system.

Liberals should be as concerned as conservatives with maintaining the court’s integrity and independence, and at least on the bench they appear to be. All nine justices have signed a “Statement on Ethical Principles and Practices,” which affirms, among other things, that the justices have a duty to sit and that the decision to recuse or not is up to each individually: “If the full Court or any subset of the Court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.”

None of this is to deny that the justices should clearly define their recusal standards or that they should make public the reasoning for their decisions, as the Statement on Ethical Principles and Practices says they are free to do. There is value in assuring the public that these decisions are taken based on rational standards, honestly applied. But that is a matter for the justices, not Congress.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administration.

Source: https://www.wsj.com/articles/the-supreme-court-and-the-duty-to-sit-recusal-standards-ethics-durbin-alito-93c4dbb6

By David B. Rivkin, Jr., and James Taranto

29 July 2023 in the Wall Street Journal

The Supreme Court usually makes news by making decisions, and it’s done plenty of that lately. In its first two terms with a 6-3 conservative majority, the justices have revisited old precedents and established new ones on abortion, gun rights, racial discrimination, freedom of speech and religion, the power of unelected federal regulators and more.

By comparison with the previous eight decades or so, the court has frequently declined to defer to elite political opinion, and as a result it has made news in other ways. A draft abortion opinion was leaked to the press. An armed man was arrested outside the home of Justice Brett Kavanaugh and charged with attempted assassination. The justices have come under attack from President Biden (“this is not a normal court”) and Democratic lawmakers. Partisan journalists have tried to gin up “ethics” scandals and incite animus against disfavored justices.

“I marvel at all the nonsense that has been written about me in the last year,” Justice Samuel Alito says during an early July interview at the Journal’s New York offices. In the face of a political onslaught, he observes, “the traditional idea about how judges and justices should behave is they should be mute” and leave it to others, especially “the organized bar,” to defend them. “But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”

He does so with a candor that is refreshing and can be startling. He spoke with us on the record for four hours in two wide-ranging sessions, the first in April in his chambers at the court. In the interim, he wrote an op-ed for these pages responding in detail to a hit piece from ProPublica, a self-styled “independent, nonprofit newsroom that produces investigative journalism with moral force.” Many of the court’s critics claim to want more “transparency.” Their hostile reactions to our April interview and his June op-ed suggest—no surprise—that they’re really after ideologically congenial rulings, not to mention conformist press coverage.

Justice Alito, 73, was appointed in early 2006 and is now the second most senior associate justice. He has emerged as an important voice on the court with a distinctive interpretive method that is rooted in originalism and textualism—adherence to the text, respectively, of the Constitution and statutes—but in some ways more pragmatic than that of Justice Clarence Thomas or Neil Gorsuch.

“There are very serious differences” in how the six conservative justices approach cases, Justice Alito says. The simplest difference involves respect for precedent: Justice Thomas “gives less weight to stare decisis than a lot of other justices.” It is, “in its way, a virtue of his jurisprudence,” Justice Alito says. “He sticks to his guns.”

That’s why Justice Thomas writes many lone concurrences. In Dobbs v. Jackson Women’s Health Organization (2022), he argued that “in future cases, we should reconsider all of this Court’s substantive due process precedents,” including those involving same-sex marriage, contraception and consensual sodomy. Justice Alito’s majority opinion carefully distinguished those issues from abortion. Justice Thomas often disregards precedents with which he disagrees and follows his own route to the majority’s destination—to cite a recurring example, by relying on the 14th Amendment’s Privileges or Immunities Clause rather than the Due Process Clause. The disadvantage of this approach, Justice Alito says, “is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule.”

Justice Gorsuch has an ornery streak that has shown itself in cases involving Indian law, crime and discrimination. “He’s definitely not a consequentialist,” Justice Alito says of his colleague—meaning he is less concerned with the real-world effects of following his principles.

An example is Ramos v. Louisiana (2020), which overturned a pair of 1972 precedents and held that the Sixth Amendment’s right to a jury trial requires unanimity for a finding of guilt in state court. Every state but Louisiana and Oregon already required unanimous verdicts, but “Ramos potentially affected many, many criminal convictions that had been obtained . . . using nonunanimous jury verdicts, which had been specifically approved by the Supreme Court,” Justice Alito says. “Overruling those decisions had potentially vast consequences. . . . That was not a big factor in his analysis.”

As for Chief Justice John Roberts, “he puts a high premium on consensus. He rarely dissents.” He filed no outright dissenting opinions in the 2022-23 term and only one in 2021-22. He also “has expressed a very strong tendency to protect the prerogatives of the judiciary,” as in Bank Markazi v. Peterson (2016). The court upheld a law directing that Iranian assets targeted by successful plaintiffs in a specific terrorism case be seized to pay the judgment. The chief justice dissented against what he called an unacceptable intrusion on judicial power: “Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the winners and losers in particular pending cases.”

On the liberal side of the court, by contrast, “I don’t see that there’s a difference in interpretive method,” Justice Alito says. Yet he emphasizes that “we don’t always line up 6-3, 5-4, the way some people tend to think. If you look at all the cases, there are cases where the lineup is unusual.” Chief Justice Roberts wrote two election-law decisions this term, Allen v. Milligan and Moore v. Harper, in which he was joined by the three liberals and Justice Kavanaugh, along with Justice Amy Coney Barrett in the latter case.

Another prime example is National Pork Producers Council v. Ross, which upheld a California law banning the sale of meat from pigs that are “confined in a cruel manner”—almost all of which is produced in other states. The council argued that the law violated the Dormant Commerce Clause, a doctrine that limits states’ authority to enact policies that burden interstate commerce.

Justice Alito, who agreed with that view, says “it’s no secret that Justice Thomas and Justice Gorsuch don’t think that there is such a thing as the Dormant Commerce Clause.” Justices Barrett, Sonia Sotomayor and Elena Kagan signed on to parts of Justice Gorsuch’s opinion, providing a majority that let the law stand.

“I have not joined Justice Thomas, Justice [Antonin] Scalia, Justice Gorsuch in saying we should get rid of the Dormant Commerce Clause,” Justice Alito says. “I’ve written this in the Tennessee wine case—that the Constitution surely was meant to contain some principle that prevents the balkanization of the economy. That was one of the main reasons for calling the Constitutional Convention in Philadelphia.”

He refers to his 7-2 ruling in Tennessee Wine and Spirits Retailers Assn. v. Thomas (2019). In dissent, Justices Gorsuch and Thomas cited the 21st Amendment, which repealed Prohibition and gave states broad authority to regulate alcohol. Justice Alito’s majority opinion treated that provision “as one part of a unified constitutional scheme,” within which the lawmakers who ratified the 21st Amendment understood that “the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations.”

That demonstrates a central feature of Justice Alito’s jurisprudence: its emphasis on historical context. “I think history often tells us what the Constitution means,” he says, “or at least it can tell us what the Constitution doesn’t mean.” His dissent in Obergefell v. Hodges (2015) is a case in point. “It’s perfectly clear that nobody in 1868 thought that the 14th Amendment was going to protect the right to same-sex marriage,” he says. Before this century, “no society—even those that did not have a moral objection to same-sex conduct, like ancient Greece—had recognized same-sex marriage.” The first country to legalize it was the Netherlands, effective in 2001.

The same attention to history informs Justice Alito’s textualism. “I reject the idea that a statute should be interpreted simply by looking up the words in the dictionary and applying that mechanically,” he says. Justice Gorsuch did something like that in Bostock v. Clayton County (2020), in which the court held that Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination “because of . . . sex,” covers “sexual orientation and gender identity.”

Justice Gorsuch reasoned that because sex is essential to the definition of both categories, such discrimination is “because of” sex. But in 1964 homosexuality was subject to widespread disapprobation, and gender identity “hardly existed as a concept, even among professionals in the field,” as Justice Alito says. “When it’s very clear that the author of the text . . . cannot have meant something, then I don’t think we should adopt that interpretation, even if a purely semantic interpretation of the statute would lead you to a different result.”

Justice Alito’s respect for precedent has limits: “Some decisions—and I think that Roe and Casey fell in this category—are so egregiously wrong, so clearly wrong, that’s a very strong factor in support of overruling.” Those are the 1973 and 1992 abortion cases that Dobbs overturned, with Justice Alito writing for a majority of five. Chief Justice Roberts provided a sixth vote to uphold Mississippi’s 15-week abortion ban but urged “a more measured course” that would narrow the precedents while deferring the question of whether to overturn them altogether.

Justice Alito has been known to take a similarly incremental approach. His opinion for the court in Janus v. Afscme (2018) held that compelling public employees to pay union dues violated the First Amendment, and it overturned a 1977 precedent, Abood v. Detroit Board of Education. A foretaste came in Harris v. Quinn (2014), also written by Justice Alito, which subjected Abood to a withering critique but left it standing.

“The question how broad a decision should be—should we overrule a prior precedent when we really don’t have to in order to decide this case?—it’s a judgment call,” he says. “There can be reasons for deciding the case more narrowly. Maybe we’re not sure whether it should be overruled. Maybe we think it would be better if the issue were highlighted for others to address first—scholars, lower-court decisions. Maybe it’s a question of what a majority of the court is willing to go along with.”

That last contingency sometimes depends on events more than philosophy. Justice Ruth Bader Ginsburg died in September 2020, and President Trump appointed Justice Barrett to succeed her. Had Ginsburg lived a few months longer, the chief justice’s tentative approach might have prevailed in Dobbs. Or perhaps the justices wouldn’t have taken the case.

In the 2023-24 term, the court will consider whether to overturn Chevron v. NRDC (1984), an increasingly disputed precedent that requires courts to defer to administrative agencies’ interpretations of ambiguous statutes. Justice Alito is careful not to state a position on Chevron, but he does make a pertinent broader point about precedent: “I’m not in favor of overruling important decisions just by pretending they don’t exist but refusing to say anything about them.”

He says that’s what his colleagues did last month in U.S. v. Texas, the term’s only case that had him alone in dissent. The court threw out Texas’ challenge to lax Biden administration immigration guidelines on the ground that the state lacked standing to challenge them in court. But Justice Alito says Texas’ claim of injury “was the same as—in fact, stronger than—that of Massachusetts in Massachusetts v. EPA,” a 2007 case that opened the door to federal regulation of greenhouse gases. “The court just hardly said a word about Massachusetts v. EPA.”

The Biden policies suspended all enforcement measures for certain categories of illegal aliens, despite statutory language to the contrary—a clear violation, in Justice Alito’s view, of the president’s express constitutional duty to ensure that the law be faithfully executed. How did all eight of his colleagues end up on the other side? “I have no idea,” he says. “I honestly don’t. Why did it turn out that way? Because it involves immigration? Because it’s vaguely connected to Trump? I don’t know. I don’t know what the explanation is.”

After the justices reconvene on the first Monday in October, they will continue making news in the usual way. Among the issues on the fall docket, along with the reconsideration of Chevron: whether South Carolina impermissibly gerrymandered its congressional districts by race, whether the Consumer Financial Protection Bureau’s funding scheme is unconstitutional, whether Congress can tax unrealized investment income, and whether someone subject to a domestic-violence restraining order can be deprived of his right to possess firearms. (Mr. Rivkin and a law partner, Andrew Grossman, represent the appellants in Moore v. U.S., the tax case.)

The attacks on the court are sure to keep coming as well. Last week the Senate Judiciary Committee voted along party lines to advance Sen. Sheldon Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act, which purports to impose on the justices and their clerks regulations “at least as rigorous as the House and Senate disclosure rules.”

Justice Alito says he voluntarily follows disclosure statutes that apply to lower-court judges and executive-branch officials; so do the other justices. But he notes that “Congress did not create the Supreme Court”—the Constitution did. “I know this is a controversial view, but I’m willing to say it,” he says. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”

Do the other justices agree? “I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about.”

The political branches have other weapons they could deploy against the court. The Constitution doesn’t specify the number of justices, so Congress could pack the court by enacting legislation to expand its size. Last week a pair of leftist law professors issued an “open letter” urging President Biden to “restrain MAGA justices” by applying their rulings as narrowly as possible. The day the court decided Biden v. Nebraska, striking down Mr. Biden’s student-loan forgiveness plan, the president announced that he was undertaking legally questionable alternatives.

Justice Alito wonders if outright defiance may be in the offing for the first time since the aftermath of Brown v. Board of Education (1954): “If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular. So you can have a revival of the massive resistance that occurred in the South after Brown.”

Will the justices’ recent rulings endure? The court shows little sign of yielding to external pressure, but its three liberal members stand ready to overturn many recent precedents from which they dissented. Whether they’ll have the opportunity likely depends on who holds the White House and the Senate when future high-court vacancies arise. About that prospect, Justice Alito demurs: “We are very bad political pundits.”

Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Taranto is the Journal’s editorial features editor.

Source: https://www.wsj.com/articles/samuel-alito-the-supreme-courts-plain-spoken-defender-precedent-ethics-originalism-5e3e9a7

By David B. Rivkin Jr. and Kristin A. Shapiro

April 17, 2023, in the Wall Street Journal

Manhattan District Attorney Alvin Bragg’s indictment of Donald Trump could mean trouble down the road for Joe Biden. “I think our Republican AGs and DAs”—attorneys general and district attorneys—“should get creative,” Mike Davis, a Republican former Senate staffer, told the New York Post. Rep. James Comer told Fox that he’s heard from at least two prosecutors who “want to know if there are ways they can go after the Bidens now.”

Mr. Biden himself is currently safe under the accepted view that sitting presidents are immune from prosecution. But under the Trump precedent, what’s to stop an ambitious Republican prosecutor somewhere from bringing dubious state charges against him before a hostile jury after he leaves office? Likewise for his successors of either party. Every four to eight years, prosecutors would order up a presidential ham sandwich. Presidents might end up having to flee the country when they leave office.

But there’s a way Mr. Trump could stop the madness that would serve his own interests as well as his successors’. His lawyers should file a notice in the Southern District of New York to remove the case to federal court under a unique legal defense: immunity under the U.S. Constitution’s Supremacy Clause.

The clause provides that federal laws, including the Constitution, “shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.” The Supreme Court stated in McCulloch v. Maryland (1819) that “it is of the very essence” of the federal government’s supremacy “to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.” The justices invalidated Maryland’s tax on the Bank of the United States on grounds that the power to tax the federal government would make a state “capable of arresting all the measures of the government, and of prostrating it at the foot of the states.”

One pivotal aspect of the Supremacy Clause is its provision of immunity to federal officers from state criminal prosecution for actions relating to their federal duties. The seminal case is In re Neagle (1890), in which the justices held that California couldn’t criminally prosecute a federal marshal for killing a man in defense of Justice Stephen Field. If a federal officer “can be arrested and brought to trial in a state court for an alleged offense against the law of the state, yet warranted by the federal authority they possess,” the court found, “the operations of the general government may at any time be arrested at the will of one of its members.”

To be sure, the case against Mr. Trump involves conduct that wasn’t “warranted by the federal authority” he possessed. But there is a strong argument that Supremacy Clause immunity should extend to any state criminal prosecutions of federal officers undertaken because of their federal service, even if the charged conduct is unrelated to their federal duties. Permitting states to burden former federal officers on account of their federal services offends the Supremacy Clause’s core principles and makes it easy for aggressive state prosecutors to circumvent. As the Supreme Court warned in Neagle, “unfriendly” states could administer the law “in such a manner as to paralyze the operations of the government.” That threat exists anytime former or current federal officers are targeted for criminal prosecution because of their federal service. A president or other official can’t lead effectively under constant threat of retaliatory prosecution.

Mr. Trump’s foes like to say that no one is above the law; and Mr. Biden’s enemies would no doubt adopt the same slogan. But Supremacy Clause immunity wouldn’t vitiate that principle. It wouldn’t prevent federal prosecutions, and it would protect against state criminal prosecutions only when the prosecutor targeted the defendant for his federal service. Mr. Trump could still be prosecuted if he shot a passerby on Fifth Avenue.

A recognition of Supremacy Clause immunity in this context would involve an inquiry into a prosecutor’s state of mind, something courts are reluctant to undertake in most contexts. But not all—courts are regularly required to determine, for example, whether a prosecutor has engaged in racial discrimination in jury selection, or whether a state criminal prosecution is motivated by a desire to harass the defendant.

First Amendment case law also recognizes, in the context of protecting core constitutional rights, the impermissibility of disparate law-enforcement treatment. In Nieves v. Bartlett (2019), the high court held that probable cause isn’t sufficient to block a retaliatory-arrest claim “when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

An inquiry into whether a state criminal prosecution was undertaken because of the defendant’s federal service would involve judicially manageable questions such as whether a reasonable prosecutor would bring the charges and whether there are indicia of political retribution. Mr. Trump has a strong argument here. Does anyone believe he’d be prosecuted for anything having to do with Stormy Daniels if he hadn’t become president?

Federal officers, including former officers, have a statutory right to remove state civil or criminal cases against them “for or relating to any act under color of such office” to federal court (emphasis added). The U.S. Supreme Court has interpreted this language broadly, explaining in Willingham v. Morgan (1969) that “the test for removal should be broader, not narrower, than the test for official immunity” because the purpose of the statute “is to have the validity of the defense of official immunity tried in a federal court.”

In Jefferson County v. Acker (1999), the justices permitted removal of state actions against two federal judges seeking collection of a state occupational tax. The court explained that, even though the tax was imposed on the judges personally, it was effectively a tax on the performance of their federal duties, thereby providing the “essential nexus” between their official duties and the state prosecution.

Mr. Trump has 30 days after his arraignment—until May 4—to invoke the federal-officer removal statute. Because a novel and important constitutional issue would be at stake, the case could easily reach the Supreme Court, and it would be wise for the federal courts to delay any state trial until Mr. Trump’s immunity defense is resolved. With only 21 months remaining in his term, Mr. Biden might find himself quietly rooting for a decision in his predecessor’s favor.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Shapiro served as an attorney-adviser at the Justice Department’s Office of Legal Counsel during the Trump and Biden administrations and is a senior fellow at the Independent Women’s Forum. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/is-braggs-case-against-trump-constitutional-supremacy-clause-indictment-federal-state-court-new-york-6adffbaa