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Terry H. Schwadron

July 11, 2020

On the one hand, we have this image of Courts as a place for determination of actual justice — you know, the classic image that impartial jurists give both sides room to argue and then seek a Solomonic conclusion about the actual facts of the case.

On the other, the Trump years have embraced and confirmed the opposite view, that the Court is basically just another political arena, here judges are seen as “activist” if they disagree with whatever the president believes. That’s why Donald Trump and Senate Republicans have put so much effort into appointing and promoting outwardly conservative judges — including on the U.S. Supreme Court.

Just a minority of cases fall into that partisan zone, but those decisions resonate for years thereafter — regardless of whether the “conservative” or “activist” judges vote in a manner that had been expected. Chief Justice John Roberts Jr. clearly goes out of his way to keep decisions so narrow in an attempt to protect the Court’s reputation.

That Trump appointees joined in the opinions in the Trump tax cases this week that the president is not immune from the law angered him, but does illustrate that these legal cases are not always straight-up partisan votes about the substance, but more complicated workings about the processes and procedures to get to a decision.

Still, the twin tax case decisions deepen an understanding about intra-governmental disputes that has little to do with Trump himself and any illegal financial doings in which he or his companies may be involved. In the case involving the House request for taxes, the court found that rigorous, if ill defined, judicial oversight is required to ensure that Congress does not harass or overburden presidents with politically motivated demands for information — putting the Court in the middle of such disputes.

A country with functional governments, state and federal, would be able to process disputes, or compromise on intra-governmental disputes — and always follow election advice. But alas, not the case anymore.

“The result may be a time bomb set to go off under a President Biden, as a judiciary packed with Trump appointees now has broad new discretion to involve itself in fights between future presidents and Congress, potentially undermining effective congressional oversight of the executive branch,” concluded a commentary in The Daily Beast.

Wisconsin Case

We’re seeing more of the mixing of courts and politics, because legislatures gerrymander voting districts, do or don’t make mail ballots available, or, as seen this week, insist on trying to overrule the voters’ choices for change.

The Wisconsin Supreme Court, for example, gave state Republicans a significant victory this week by upholding a set of laws passed during a lame-duck session in 2018 designed to limit the powers of newly elected Democratic officials. After voters elected Gov. Tony Evers and Atty. Gen. Josh Kaul, both Democrats, lame-duck Republican state legislators passed laws to block Evers and Kaul from withdrawing from lawsuits involving the state. Indeed, the legislature said the attorney general had to seek their approval first.

In other words, this was a case about holding onto political power even if the party lost the elections.

The Guardian newspaper explained the background: Republicans had passed a sweeping voter ID law and drew state legislative districts in 2011 that made it virtually impossible for Democrats to win the state legislature. In 2018, Republicans lost every statewide race, but won 63 of 99 seats in the state assembly and a majority in the state senate. Republicans used their majorities to pass laws curbing Democratic power.

So much for elections and separation of powers — and the necessary involvement of the courts.

But then the state supreme court, where Republicans have a 5–2 majority, ruled for Republicans, insisting that there were circumstances where powers were shared between the legislature and the attorney general. The decision left open whether other separation of power issues should come before the court.

Similar overreach against electoral change has been in legislatures in Michigan and North Carolina, where Republican majorities have sought to limit Democratic governors.

For the justice-oriented, it is difficult to see justification for the court to overlook the spirit of change reflected in the popular vote. For cynics, this is heaven: The court is a political vehicle.

Congressional Oversight

Discussion of the political nature of courts brings us back to this week’s U.S. Supreme Court decision. Essentially, then, while saying that Trump — and the presidency — is not above the law, this Court put procedural obstacles in the way of legal demands for Trump’s financial records beyond the November election.

And, the Court has set the stage for fights over Congress’ oversight power to get even muddier.

This decision will almost certainly encourage Trump and future Presidents to go back to court anytime they object to a demand for information about their personal conduct, a commentary in Talking Points Memo argues. Any arguments to subpoena presidential documents will require substantive description of need — as determined by the Court, the ruling said. And even if the argument prevails, the Court can set up procedures to allow the president to run out the clock.

As a practical matter, Congress will not be able to rely on the courts to give it quick and clean decisions in favor of its requests for information. That’s what oversight is all about.

Of course, Trump has simply refused to provide any information, and to its credit, the Court ruling seems to say that is not supportable.

The courts need to show that they are not just political tools.


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