I happen to have Alexander Hamilton right here with me...

Drawing by David Levine, New York Review of Books, 1964.

 

It's a little amusing that Roberts is citing Breyer there, in Clinton v. Jones, that's the Paula Jones case, where Breyer is arguing, in a unanimous decision (Democrat Stevens wrote the opinion), that Clinton was not immune (from civil lawsuits based on private conduct), in spite of the fact that Clinton was indeed the president at the time and the case was certainly "distracting his time and energy", the thing the Framers are said to have been so particularly tender about, and in spite of the fact that this was only the third time in American history that such a suit had been filed against a sitting president. Clinton had failed to prove, Breyer thought, that the US government needed for Clinton to have the immunity:

As Madison pointed out in The Federalist No. 51, "[t]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Id., at 321-322 (emphasis added). I agree with the majority's determination that a constitutional defense must await a more specific showing of need; I do not agree with what I believe to be an understatement of the "danger." 

It seems to me that with Trump v. United States the Court has turned this upside down, shifting the burden of proof from the offender to the offended. Henceforth (I once knew a cat called Henceforth, and a pretty good cat too), it will just be assumed that the president shouldn't be asked to answer any questions, even after they've left office, nor should his White House employees, even when they're glorified nursemaids for the cranky old psychopath, like poor Hope Hicks helping him ride his way through the scandal of the Access Hollywood video. She was part of the apparatus enabling Trump's "energetic, vigorous, decisive and speedy execution of the laws" when he was paying his hush money debt to Michael Cohen with $420,000 in checks disguised as legal fees so nobody would know about it, so it looks like her testimony in the New York case should not have been given, and his conviction now seems likely to turn into a mistrial, even though you'd be hard put to name any occasions when he executed any laws at all beyond his photo op bill-signing moments with the presidential Sharpie.

It would be fun to put that on trial, wouldn't it?  "Do you recall faithfully executing any laws in 2017, Mr. Trump? Can you list some of those for the jury?" But of course it's unimaginable.

It's also difficult to imagine a Supreme Court majority now citing Federalist 51, with its focus on checks and balances among the three branches, and Madison wistfully letting on how much he wished he could have had the president and Supreme Court justices directly elected:

For the Record: Prayers and Thoughts

A really awful Supreme Court decision handed down today in a church-state case from Maine, where a private-school voucher program to compensate for the lack of public high schools in rural areas forbade funding for "sectarian" schools in which religious instruction was part of the program:

It doesn't exclude them at all. They exclude themselves by refusing to go to public institutions. That's a nonsensical argument.

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 21, 2022

Yes, that's the question the justices should have argued, though they'd still have been wrong. Instead they went into the insanely radical territory of French's tweet. Have you bothered to look at the oral arguments? https://t.co/YV32NA3XX3

— Woke Mob For Taxing Billionaires (@Yastreblyansky) June 22, 2022

John Roberts is Stupid

Image via Bronx Banter.

Hahaha. On Ginsburg's beautiful opinion in the case of Arizona Legislature v. Arizona Independent Redistricting Commission, holding that a popular referendum can require a state to get rid of gerrymandering in its decennial redistricting by means of an independent commission, in spite of the constitutional stipulation that

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” Art. I, §4, cl. 1. R

The gerrymander-loving chief justice, Smilin' Jack Roberts, dissenting, decides to wax sarcastic, as quoted at the Political Animal, and extracted at slightly greater length from the opinion itself:

I win

Triumph of Titus and Vespasian, Giulio Pippi, 1537-40.

Note the date:

#KingvBurwell just died. http://t.co/DDr27jUOFn The Cato lawyer Cannon is bleeding flopsweat out his ears. I'm calling 6-3 to sustain #ACA

— Yastreblyansky (@Yastreblyansky) February 7, 2015

Keep Calm and Carrion

Image via Teepublic.

Scott Lemieux has composed what ought to be the definitive assessment of the significance of Obamacare troublemaker Jonathan Gruber—BREAKING! Person Good At Running Econometric Models Says Silly Things About Politics!—but there was one detail emerging from the comments that I thought should be dealt with by a heedless and ill-informed non-attorney, so I'm stepping up to the plate:

Sin tax and semantics

Willard Mitt Romney, having sent out his henchman on July 2 to say that the Obamacare mandate nonpayment fine-tax is not a tax even though the Supreme Court had just decreed that it was, by a majority of minus-eight votes,* came out himself on July 4 to agree with the Court. This latest flip-twist, by the way, is more than just a fun example of the difficulty he has agreeing with himself. Although it certainly is that.

I don't think he's ever made it quite so clear that while he lies with perfect cheerfulness, it makes him cross when he has to contradict himself. If he said the Obama administration has raised taxes on the middle class by 300% and you showed him evidence that this was not true, he'd just smile and repeat himself, quite comfortably; but if you showed him video of himself saying that the Obama administration had not raised taxes on the middle class, he'd be visibly angry.

I don't know why it is—it could be part of his definition of manliness, that if you have a lie to tell you should just tell it, squarely and boldly, not going all vacillating and equivocal. But since he does, in fact, contradict himself often, he's almost always just this side of a real temper tantrum. [jump]

*Just kidding. Everybody knows that it was a 9-0, 1-3-1-4, 5-4, 5-4, 3-2-4 decision, as NCrissie B carefully explains, and the liberal minority signed that piece of it; but we're free to believe that they didn't really agree with it.

A moment of Burkean minimalism and self-control

I have half a mind to congratulate myself—some friends say that's all the mind I have for any purpose whatever—on Monday's post where I called the Roberts ruling on the PPACA. But it will make me prouder if I handle this with Burkean minimalism and self-control, listening to what others have to say.

Here, incidentally, is some minimalist language from Edmund Burke, on the subject of the ex-Governor General of India, Warren Hastings, whose impeachment Burke was leading in the Commons: he

called Hastings the 'captain-general of iniquity'; who never dined without 'creating a famine'; his heart was 'gangrened to the core' and he resembled both a 'spider of Hell' and a 'ravenous vulture devouring the carcases of the dead'.

Shrill!

James Nixon (1741-1812), The trial of Warren Hastings. From 1st Art Gallery.

David Brooks:

Granted, he had to imagine a law slightly different than the one that was passed in order to get the result he wanted, but Roberts’s decision still represents a moment of Burkean minimalism and self-control.... [jump]