“My New One at Slate: “Trump Immunity Ruling Will Be John Roberts’ Legacy to American Democracy”

authoritarian threats in US, election subversion risk, Supreme Court

I have written this piece for Slate. It begins:

Is the Supreme Court obtuse or disingenuous? In its awful immunity ruling on Monday benefiting Donald Trump, the court seems so worried about future threats to democracy that could come from the possibility of bogus future criminal prosecutions of former presidents that it is willing to let a legitimate election subversion prosecution over a current threat against democracy go by the wayside….

Months ago, many of us were wondering why the court was dragging its feet, and I even naively suggested the court could behind the scenes be crafting a “grand bargain” where it decided in favor of Trump when Colorado tried to remove him from the ballot to be followed by a quick rejection of immunity, allowing his election subversion trial to move forward before the election. Reality was in fact the opposite. In Monday’s opinion, the court accused the lower courts of moving way too quickly and not engaging in thorough enough legal analysis and factual development. Their message was, hey guys, take it slow, presidential immunity for criminal acts is really important.

The court was right about importance, but not in the way that it thought. We have an ongoing threat to American democracy going on today, right now, in this country. In 2020, the incumbent president tried to overturn the results of a fairly conducted election by trying to manipulate the rules for states to certify their presidential electors and Congress to count those electoral college votes. He did that by making wholly unsubstantiated claims of fraud and irregularities and pressuring Justice Department officials, state election administrators, state legislators, and others to change fair results. When that failed, he aimed and fired his armed supporters at the U.S. Capitol to disrupt the proceedings for certifying the election and block the peaceful transfer of power.

Not only did this presidential candidate not face any legal consequences yet for these actions. He is the frontrunner to be president again, now armed with a new Supreme Court opinion that gives him vastly expanded powers that he would no doubt use if he is put back in office. Who knows what he will do in 2025 with a green light to engage in all kinds of criminal activity?

Tellingly, Chief Justice John Roberts’ majority opinion spends not a moment condemning the violence in the Capitol on January 6 or saying how awful the allegations against Trump are if true, or even celebrating peaceful transitions of power and reaffirming American democracy. It fell to Justices Sonia Sotomayor and Ketanji Brown Jackson to do this in their dissenting opinions in this case, in the Fisher case, and in Trump v. Anderson, the case holding that Colorado could not remove Trump from the ballot on grounds that Trump engaged in insurrection in violation of Section 3 of the Fourteenth Amendment….

Even putting aside the risks for future presidential authoritarianism, Roberts offers no acknowledgement that the court’s fact-intensive slow-moving process has let Donald Trump run out the clock on claims of election subversion in 2020. Roberts surely was aware that this was an implication of the decision and surely the risks to democracy from this decision had to have crossed his mind.

Roberts’ failure to even acknowledge those risks, even if he thought the risks were worth taking because of larger principles at stake of protecting the presidency from bogus prosecutions in the future, is going to be Roberts’ legacy for American democracy. That is, if our democracy survives.

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My New Slate Piece on Today’s NetChoice Social Media Cases: “The First Amendment Just Dodged an Enormous Bullet at the Supreme Court”

First Amendment theory, social media and social protests, Supreme Court

I have written this piece for Slate. It begins:


At Supreme Court oral argument in the Texas social media case back in February, Justice Samuel Alito asked the question: “Let’s say YouTube were a newspaper, how much would it weigh?” In Monday’s Supreme Court opinion in Moody v. NetChoice, a five-justice majority over Alito’s objection did not directly answer that absurd question, but it did say that under the First Amendment, Facebook should get about the same amount of editorial discretion as the Miami Herald. And that’s some good news from an otherwise bleak end of the Supreme Court term….

That’s where the agreement among the justices ended. Speaking for herself, Chief Justice John Roberts, and Justices Amy Coney Barrett, Brett Kavanaugh, and Sonia Sotomayor, Kagan gave guidance on where the 5th Circuit went wrong in its First Amendment analysis in considering the constitutionality of the Texas content moderation decisions. None of this was necessary for the decision (in legal parlance, it was “dicta”), but the court addressed the issue because “[i]f we said nothing about those views, the court presumably would repeat them when it next considers NetChoice’s challenge.” The other justices would not have reached the First Amendment merits, although Alito expressed some serious reservations about the analysis.

Kagan’s guidance relied heavily on a 1974 case, Miami Herald v. Tornillo, in which the court held unconstitutional a Florida law that required newspapers to print the reply of someone who had been criticized in the newspaper. The court held that private actors like newspapers have every right under the First Amendment to include or exclude content as they see fit.

To Kagan, social media companies in moderating content were just like newspapers. She said that curating content is expressive activity protected by the First Amendment and that includes the decision to exclude content and that this principle is true even if most content is allowed and just a little bit is excluded. Further, when it comes to laws regulating speech, “the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas.” Were the rule otherwise, Kagan asserted, the platforms could be forced by Texas law to carry bad content including posts that “support Nazi ideology; advocate for terrorism; espouse racism, Islamophobia, or anti-Semitism; glorify rape or other gender-based violence; encourage teenage suicide and self-injury; discourage the use of vaccines; advise phony treatments for diseases; [and] advance false claims of election fraud.”

Moody might seem like an unremarkable decision, consistent with long-standing First Amendment principles. And indeed, in an amicus brief in the cases that I filed with political scientist Brendan Nyhan and journalism professor Amy Wilentz and co-authored with Nat Bach and his team at Manatt Phelps, we argued that Tornillo is the right analogy.

But in endorsing this view of the First Amendment, the majority brushed aside a major argument made by Justice Clarence Thomas in earlier cases and by First Amendment scholar Eugene Volokh that social media companies should be treated differently because they function like “common carriers,” such as the phone company. Just like Verizon cannot deny you a phone because of what you might say using it, the argument is that Facebook had to be open to everyone’s view.

The court gives the argument the back of its hand, never even addressing it directly; Alito says the majority “brushes aside the argument without adequate consideration.” Thomas says the argument should still be pursued in the lower courts, but it’s squarely inconsistent with what the Kagan majority says in its dicta. Volokh too sees many unanswered questions and thinks there is still a chance for some parts of these laws to be upheld when the cases get back to the lower court….

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I Spoke with NPR’s Morning Edition About the Trump Immunity Ruling

authoritarian threats in US, election subversion risk, Supreme Court

You can listen here. From the transcript:

MARTIN: Speaking of the future beyond the criminal cases against former president Trump, this opinion does create new precedent for all American presidents. So to talk about that, we’ve called Rick Hasen, a constitutional law professor at the University of California, Los Angeles. Professor Hasen, as I said, you’re just working through this decision, it’s a long one, it’s complex, but what precedent do you think has been set for the future?

RICK HASEN: Well, this is a huge precedent. I mean, we’re all focused on what this means for 2024 and for Donald Trump, but this is an opinion that greatly expands presidential power. What it does is it creates a – kind of a zone of immunity around the president for official acts and for things that are like official acts. It puts a huge thumb on the scale in favor of, you know, the president if there’s ever any kind of criminal prosecution.

And importantly, it says that the kind of evidence that could be introduced in the event that the president is accused credibly of criminal conduct is quite limited so that the – you know, the kinds of evidence that you would actually need to prove that the president is engaged in criminal conduct, now the prosecutors would be hamstrung. So this is a big shift of power towards the president personally in potential prosecutions going forward.

MARTIN: I know that you’re just working your way through the decision, but is there anything in it that really stands out to you or that surprises you?

HASEN: Well, I mean, the first thing that I thought of when I got to the end of the majority opinion is that while many of us were thinking, boy, the Supreme Court is really taking its time with this, it scheduled it two months after the, you know, they decided to take the case, they decided it at the very last day of the term, the court was saying that the lower courts went too quickly. They think this is something that has to be slow and deliberate. They don’t care at all about the implications for potentially what Donald Trump had done in terms of trying to subvert the results of the last election. They are trying to do an opinion for the ages, but maybe at the price of ignoring the danger to democracy that’s before us today.

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“Corporate lobbyists eye new lawsuits after Supreme Court limits federal power”

legislation and legislatures, lobbying, Supreme Court

WaPo:

Mere hours after the Supreme Court sharply curbed the power of federal agencies, conservatives and corporate lobbyists began plotting how to harness the favorable ruling in a redoubled quest to whittle down climate, finance, health, labor and technology regulations in Washington.

The early strategizing underscored the magnitude of the justices’ landmark decision, which rattled the nation’s capital and now appears poised to touch off years of lawsuits that could redefine the U.S. government’s role in modern American life.

The legal bombshell arrived Friday, when the six conservatives on the Supreme Court invalidated a decades-old legal precedent that federal judges should defer to regulatory agencies in cases where the law is ambiguous or Congress fails to specify its intentions. Writing for the majority, Chief Justice John G. Roberts Jr. described the framework as “unworkable,” at one point arguing in his opinion that it “prevents judges from judging.”

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