The Supreme Court prepares for the Biden presidency
The chief justice is playing the long game
This morning the Supreme Court handed down very different decisions in cases regarding President Trump's financial records. As with many of the Court's recent decisions, both cases are best viewed as the ongoing machinations of Chief Justice John Roberts to preserve the Court's waning legitimacy and to steer clear of the looming threat of court-packing under a Biden presidency, while still preserving the option of returning to full complicity in the increasingly unlikely event that President Trump is elected to a second term. In other words, it was another predictably dark day for American democracy.
I'll leave it to deep-dive SCOTUS experts like Rewire's Jessica Mason Pieklo and Vox's Ian Milhiser to tease out the full legal implications of this morning's developments. The basic outline is that in Trump v. Vance, a 7-2 majority upheld lower court rulings that Manhattan District Attorney Cyrus Vance must be granted access to the president's financial records as part of a criminal inquiry. Just 10 minutes later, though, a 7-2 majority essentially punted on the question of congressional oversight power by vacating earlier decisions in Trump v. Mazars and establishing an absurd four-part test for Congress to pass when seeking information from the president.
In brief, Vance means that New York prosecutors will soon get Trump's tax returns and other records, but barring leaks from a grand jury, the rest of us likely won't know what's in them until after the election, if ever. Mazars, on the other hand, will tie the issue of congressional subpoena power up in the courts until well after the 2020 presidential election. In both cases, the Court managed to avoid the perception of open collaboration with the president while still offering him just enough cover to avoid a reckoning prior to November. There is no question that Trump's re-election team is thrilled. Overall it was a pretty depressing morning for anyone hoping that SCOTUS would clearly and concisely affirm centuries of unambiguous precedent granting Congress clear powers of oversight over the executive.
But we must also take a step back and consider Roberts' motivations. Since Senate Republicans filled the Supreme Court seat they stole from Barack Obama with hardliner Neil Gorsuch, and especially since the ugly and divisive confirmation of Brett Kavanaugh in 2018, clamor has been growing on the left to enlarge the Supreme Court should Democrats retake the presidency and the Senate this year. This act of escalation, which would be unwise in normal times, is necessary either to avenge and reverse the theft of Merrick Garland's seat, and to address the Court's increasingly minoritarian composition — four of the five conservative justices were appointed by presidents who took office after losing the popular vote — or (hopefully, but improbably) to convince Republicans to play ball on amending the Constitution to eliminate lifetime tenure on the Court.
Roberts is keenly aware of his legacy, and if nothing else genuinely wishes to preserve the legitimacy of the Supreme Court's powers. The last thing he wants is to spend his remaining years teaming up on dissents with Kavanaugh and Gorsuch as part of a conservative minority on an expanded, 11-person Court. Had Roberts marshaled the full wrath of the right's 5-4 majority by ruling with the pro-life forces in the Louisiana abortion case and with homophobic and transphobic bigotry in the workplace discrimination case, it would have made it completely undeniable even to rank-and-file Democrats that the Court is an out-of-control institution that needs to be restructured.
The best way to look at the last few months is this: Roberts delivered a handful of emotionally satisfying victories to liberals who mostly view the courts through the prism of "social" issues like abortion and LGBTQ rights. These are, of course, extremely important issues and there are very good reasons why Democratic voters care about them so much. But with the exception of the genuinely good and landmark workplace discrimination decision, these cases also have the virtue (for conservatives) of being temporary stays of execution.
DACA, for instance, was not 'upheld' — the matter was sent back to the Trump administration for a more competent and legally justifiable repeal. Abortion rights were not affirmed; all the Court did was close off one possible avenue of undermining Roe, practically inviting conservatives to mount a frontal assault rather than sneaking de facto repeal through a side door. The Vance decision is designed to make liberals think that the Supreme Court stood up for the rule of law, while the practical implication of Mazars is that presidents can tie up pretty much any oversight efforts in litigation for longer than the length of a presidential term. Trump skates without the Supreme Court having to create binding precedent for total immunity.
What the Court’s decisions have in common this term is that they don't touch the broader edifice of Republican power whatsoever, which is grounded in both the anti-democratic, minoritarian features of the U.S. political system as well as with preserving the nearly limitless power of rich people and corporations to influence our politics and reinforce their own power. That's why the Court in 2019, on a party-line 5-4 vote, refused to outlaw the practice of partisan gerrymandering, which disproportionately helps Republicans maintain power. It's why the Supreme Court ruled, in April, that Wisconsin voters had to vote in person at the polls at the peak of the state's pandemic. It's why just days ago the Court made it harder for voters in Alabama and Texas to cast absentee ballots amidst the pandemic. It's why whenever issues of corporate power are brought before the Court, the rights and privileges of the rich are affirmed over those of the people. Kill the Consumer Financial Protection Bureau while giving liberals hope that Roe will live.
There is further dark genius in the way that Roberts has handled the Court's denouement this term. Both Mazars and Vance were decided 7-2, avoiding the perception that these were party-line votes. Getting all four liberal justices to go along with the majority in Mazars is really quite a coup for Roberts and a reminder to liberals that flipping one seat on the Court is not going to be enough to win major progressive victories in the years to come. Should Biden win the presidency in November, it will allow conservatives to argue that the Court should be left untouched because it is still capable of avoiding party-line 5-4 votes on important issues. Proponents of court-packing probably faced an uphill climb in getting 50 Democratic senators to sign onto such a disruptive maneuver. Roberts has, ingeniously, now made that task even harder.
Make no mistake — if President Trump is re-elected, Roberts can look forward to building as much as a 7-2 conservative majority, with the ailing Ruth Bader Ginsburg unlikely to survive another four years and Stephen Breyer heading to his mid-80s. That majority will be unconstrained by June Medical when it guts or overturns Roe. It will rubber stamp the second Trump administration's DACA repeal. If the underlying issues in Mazars ever make it back to them, they will rule for the president, establishing impunity not just on financial records but for any matter of presidential wrongdoing.
And if Biden wins, Roberts will happily execute the right's plan for maintaining its stranglehold on American democracy long after the Republican Party's power has vanished. The Affordable Care Act will be overturned. D.C. statehood will get tied up in litigation for years. Progressive policies like Medicare-for-all and a wealth tax will get rope-a-doped in the courts before being extinguished years later by Roberts and his friends. Efforts to rein in corporate power will meet the same end they've encountered for the past 20 years.
Democrats must not be fooled by their fleeting wins this term. If and when they take back power in Washington, they must use their full constitutional power to move forward with adding seats to the Supreme Court and dramatically expanding the size of the district and appellate courts. If they do not, their policy agenda will be wrecked and their stay in power will be brief. Nothing less than the survival of American democracy is at stake.