SCOTUS Watch

Clarence Thomas

Clarence Thomas continues to be amid ethical violations. 

Justice Rehnquist (Roberts' old boss) did not participate in the Nixon tapes case because of his former involvement in the Administration. 

Why is Thomas continuing to participate in Trump 2020 election disputes in which Ginny Thomas (his wife and self-proclaimed best friend) had a public role? The appearance of impropriety is blatant.  Do they fear a 4-4 decision?

Meanwhile, there is the drama of appointing a former Ginny Thomas protege and Thomas houseguest, Crystal Clanton as a Thomas clerk.  Clanton was the second-in-command and field director of the hard-right youth group Turning Point USA. A group whose views alone make her a dubious option. But, the infamous "I hate black people" text* stands out.

There is a move by some (including this regular critic of SCOTUS ethics) to claim it was just a youthful indiscretion, maybe even a once-off. This is mixed in with allegations she didn't even actually do it. The people who did a deep dive (not half-assed ethical investigations) tell a different tale. Likewise, contra the first link, it is not like she repented her past actions. 

Thomas picking this person, a right-wing troll type, is far from surprising.  But, the full tale makes this a blatant case that sends a horrible signal. 

Remember when a line in a Sotomayor speech that some people inferred meant she thought Latinas were more able to interpret the law was harped upon?  Would a clerk who said "I hate white people" pass muster for many people? 

Thomas (and before him another controversial conservative Court of Appeals judge) are the ultimate people at fault here (to cite Prof. Eric Segall, who partially at Dorf at Law has been continually on this case for years) given their level of importance. The blame (aided and abetted by other defenders) includes the failure to in an above-board way admit what is going on. 

Ms. Clayton is obtaining a prime job, which will provide her with prime financial and professional rewards, under very questionable circumstances. It's a more blatant example of a wider problem with the people involved. 

Trump Immunity 

Jack Smith requested the Supreme Court to take up the question of Trump's immunity from criminal prosecution in the D.C. election case before Christmas. They denied it, letting the court of appeals hear the case.

The COA took until early this month, causing many people to be impatient, to decide the case. They unanimously addressed both the immunity argument and an even more dubious double jeopardy claim. The COA then set Lincoln's Birthday as the last day Trump could appeal it to SCOTUS before the ruling would go into effect.

Trump did so, Jack Smith replied, and then Trump's side answered. This was all done within the week. We then waited for a response. The assumption was that maybe there was a "trade" and the Court would deny a stay and the liberals would go along with the conservatives on the insurrection matter. 

Neither decision came down. Colorado has a primary on Tuesday though the results won't be final. 

The Supreme Court on Wednesday (after their "no comment" in what turned out to be a botched execution) granted the stay. The question:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. 

One thing the justices did behind the scenes was craft this particular wording, which is not the same as what either side is asking them to address. 

What exactly this entails is unclear. I fear an opinion that even if it holds against Trump will further enable presidents to be above the law.  Similarly,  when they upheld the congressional power to obtain Trump's financial records, more hoops were inserted before that could be done.  

Also, if a new test is applied, it can further delay things as it is sent back to be applied, and that too will be appealed. 

They did not take the double jeopardy argument. Also, they will hold an oral argument on April 22nd (checks calendar).  

This furthers the concern here that -- regarding a patently bullshit argument -- they are helping Trump delay. They could have held it this month. The Court of Appeals decided things in early February. We then have to wait over two and half months after the ruling for merely an oral argument. 

It takes time to have a trial before the election. There is also a principle (which arose during the Bush Administration) that you should not have a trial close (maybe 60 days) before an election. Though a few people still cannot assume the worst, this move was more upsetting to others than many. 

Joan Biskupic on CNN said, "Former President Trump's effort to run the clock has a partner in the Supreme Court at this point." Biskupic is less likely to provide a passionate take leaning in an ideological direction. Her comment therefore reflects the bluntness found in the coverage.

The Manhattan criminal trial, where Trump waived an immunity defense (it also involved acts before he was in office), remains in place for the end of March.  For now, civil and criminal justice is best obtained here in New York.  

Media Advisory

The Supreme Court flagged two cases (social media and mifepristone) as set for special reserved seating for the press since there will be limited seats available.  

Orders 

There is an Order List on Monday. The orders are likely to be (like last time) of no significant consequence. 

The next official thing on the calendar is a March 15th Conference and non-argument public session (usually for swearing in attorneys).  

The Court now provides on its website calendar if opinions "might" be handed down. That day is not listed as such a day.  As usual, we might have unscheduled orders and other news. We have had some notable in the last few years. 

ETA: On Sunday -- which is weird -- we suddenly have a possible opinion on Monday. Which they won't show up to announce. Which is not normal these days either. Uh-huh. 

Mitch McConnell

Finally, we should note the announcement that Sen. Mitch McConnell (now in the Senate for 40 years!) will step down as Republican Leader. From holding up the Garland Seat to refusing to support the Trump impeachment (even as he said Trump was responsible), he was a poisonous influence. 

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* The full text is:  “I HATE BLACK PEOPLE. Like fuck them all . . . I hate blacks. End of story.”