Roberts the Institutionalist, Alito the Culture Warrior
Plus: Can an aisle-crossing moderate win the race to replace Sen. Mitt Romney?
Another Headache for the Chief
You’ve honestly got to feel for Chief Justice John Roberts. He’s taken on as his mission in life a nearly impossible task: preserving the broad-based institutional credibility of the Supreme Court.
Sometimes, this means telling his conservative supporters things they don’t want to hear. Take this exchange from a recent dinner of the Supreme Court historical society, between Roberts and someone he took to be a fan:
Q: You don’t think there’s a role for the Court in guiding us toward a more moral path?
Roberts: No, I think the role for the Court is deciding the cases. If I start—would you want me to be in charge of guiding us toward a more moral path? That’s for the people we elect. That’s not the lawyers.
Q: Well I guess I just believe that the founders were godly—were Christians. And I think that we live in a Christian nation and that our Supreme Court should be guiding us in that path.
Roberts: Yeah, I don’t know that we live in a Christian nation. I know a lot of Jewish and Muslim friends who would say maybe not. And it’s not our job to do that. It’s our job to decide the cases as best we can. It’s a much more modest job than I think people realize.
We imagine Roberts felt pretty good about those comments after he realized his interlocutor wasn’t a conservative fan at all, but a liberal activist named Lauren Windsor hoping to lull him into saying something inflammatory. Institutional credibility: defended!
Across the room at the same event, Justice Samuel Alito wasn’t feeling so circumspect. When Windsor buttonholed him, telling him her husband had asked her to “make sure that you tell Justice Alito that he is a fighter,” Alito was happy to play to type:
Q: As a Catholic . . . I don’t know that we can negotiate with the Left in the way that needs to happen for the polarization to end. I think that it’s a matter of, like, winning.
Alito: I think you’re probably right. One side or the other, one side or the other is going to win. I don’t know—I mean, there can be a way of working, a way of living together peacefully. But it’s difficult, you know—because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So it’s not like you’re going to split the difference.
Q: That’s what I’m saying. I think that the solution really is like winning the moral argument. Like people in this country who believe in God have got to keep fighting for that, to return our country to a place of godliness.
Alito: I agree with you. I agree with you.
Here’s the thing: Alito is correct that many of the philosophical differences between today’s left and right “can’t be compromised” in the sense that they rely on irreconcilable moral principles. Abortion law is a prime example, one Alito surely has front of mind after penning the Court’s opinion in Dobbs v. Jackson: Either fetuses are human beings, and thus deserve protection under the law, or they aren’t and thus don’t. In theory, political compromises are possible, but ultimately both sides have to hope their view of the fundamental problem is the one that will triumph over time.
But is it the Court’s job to weigh in on all that? In Roberts’s way of thinking, only when it has specific cases before it that it’s been asked to decide as a matter of law. How long that restrained view can last in an environment where it isn’t universally shared remains to be seen.
—Andrew Egger
Last Night in Utah
Here’s the glass-half-full way to look at Utah’s Senate race to replace Mitt Romney: The race’s leading candidate, Rep. John Curtis, is the relative moderate in the field, a legislator who prides himself on his bipartisan bona fides, chairs a House climate group, and makes clear that his support for Donald Trump is only a matter of fellow-traveling policy visions.
But at last night’s primary debate, where Curtis squared off against three far Trumpier challengers ahead of the June 25 primary, it was plain that even in Utah, the amount of independence from MAGA Republican voters will tolerate continues to shrink.
Early in the debate, the candidates were asked a pointed question: “What are your thoughts about Donald Trump promising revenge and retribution should he become president?”
Curtis’s reply was like a time capsule from 2017, back when Republicans were still reassuring themselves that Trump would grow into the presidency:
I think it’s human nature to feel the way that President Trump has expressed himself in that quote. But the reality of it is that President Trump is at his best when he’s doing what he does very well. I think about him coming into office and the work he’ll do on the border, I think about him coming into office and the work that he’ll do on re-upping the tax credits, I think about President Trump and his judicial nominations. I think of all the things, the deregulation and the other things that he did. My guess is he’ll have his pity moment, but then he’ll come into office full of enthusiasm to do the things that this American country needs and is waiting for.
About the weakest tea you could imagine? Sure. But a whole lot better than how Riverton Mayor Trent Staggs—Trump’s endorsed candidate in the race—answered the same question:
What has happened to President Trump is really in my view the greatest example of election interference and election fraud in our nation’s history. Here we have the political prosecution, persecution of a former president. If they can do that to him, they can do it to anybody. This is frankly the biggest issue of our day. It isn’t climate change or something—this is actually it, the weaponization of a judicial system against a political opponent.
Staggs is an interesting case. He landed Trump’s endorsement by first courting the lesser lights of MAGAworld, including Trump’s old Director of National Intelligence Ric Grenell and Arizona’s Kari Lake. When he isn’t regurgitating whole paragraphs of Trumpspeak, he can sound like Tea Party-era Mike Lee: “What Utahns want is somebody who understands federalism, who understands . . . that the government closest to the people is what actually governs best, if government is to be involved at all.”
And he boasts that, unlike the others in the race who hadn’t “taken the chance to stand up to the establishment,” he jumped in before Romney said he’d retire: “It was my stated goal to go ahead and primary Mitt Romney.”
Staggs, in other words, is a candidate that hits many of Trump’s pleasure centers. But he’s less well-known in the state and has raised less money than either Curtis or either of the race’s other qualified candidates, former state House Speaker Brad Wilson and pest-control mogul Jason Walton.
A recent Deseret News poll had Curtis more 18 points ahead of the pack, with 34 percent support compared to 16 percent for Staggs, 12 percent for Wilson, and 4 percent for Walton. It’s possible that by elevating the MAGA candidate with the smallest pre-existing base of support, Trump actually smoothed Curtis’s path to triumph in the upcoming primary.
Sometimes all the silver lining you get is this: Trump may have run Romney out of the party, but it’s looking like he’ll fail to handpick his successor.
—Andrew Egger
Catching up . . .
House Democrats launch group to respond to possible second Trump term: Politico
Team Biden bets an unfiltered Trump at the debate can shake up the race: NBC News
Blinken says fate of ceasefire proposal ‘is down to’ Hamas leader: New York Times
Gaza chief’s brutal calculation: Civilian bloodshed will help Hamas: Wall Street Journal
In Trump’s orbit, some muse about mandatory military service: Washington Post
Quick Hits
1. A fake-elector reckoning in Wisconsin
Read Bill Lueders on the new Wisconsin criminal charges against the three men who hatched the state’s 2020 stolen-elector scheme:
Wisconsin Attorney General Josh Kaul was ready for the question: Why was his office only just now getting around to criminally charging three individuals who orchestrated a plan to steal the 2020 election for Donald Trump, more than three years after it happened and months before the former president will face voters as a convicted felon?
“Our focus in any investigation and any prosecution is not on the speed with which something’s done,” he said during a press conference last week on the steps of the Wisconsin State Capitol, hours after the charges were announced. “It’s on doing high-quality investigations, conducting high-quality prosecutions, and getting things right. That’s the approach we have taken. That’s the approach we will continue to take, both in this case and in any other cases that we investigate or prosecute.”
2. Snatching incarceration from the jaws of freedom
Andrew Fleischman is a Georgia-based public defender and a sharp, insightful commentator on the nuts and bolts of judicial procedure. Over at The Hill, he has a great short piece examining the difficulty currently facing Trump’s defense lawyers in New York: “How do you prepare a client for felony sentencing when he can’t admit guilt or express remorse?”
“Whatever you might think of Donald Trump as a person, it is objectively true that this is a first conviction for a nonviolent offense,” Fleischman writes. “A custodial sentence would be an outlier, and Judge Juan Merchan is aware of how closely such a decision would be scrutinized. All that said, one way to snatch incarceration from the jaws of freedom is to let the client speak his mind.”
Fleischman recalls the hubris of one of his own defendants:
We went over the sort of things that defendants ought to say at sentencing a few dozen times. Don’t admit guilt, but express sympathy for the victim and his family . . . And yet, when he testified, he insisted loudly that he had done nothing wrong, that the victim had it coming and that even a blind person could tell he was innocent.”
It’s not hard to imagine Trump going on a similar tear. In the time since his conviction, he’s repeatedly fundraised off his felony, arguing that a corrupt justice system had railroaded him for non-crimes. If he can make it through a sentencing colloquy without name-checking Judge Merchan’s daughter as a minion of Barack Obama, he’ll have exceeded my expectations . . .
If Trump’s lawyers have one goal in the coming weeks, it’s persuading this judge that, as extraordinary as Trump may be in other respects, his crime is run-of-the-mill and close to victimless.
In many other contexts, it makes sense to let Trump be Trump. Here it may be best to let Trump be quiet.
Cheap Shots
Roberts needs to figure out how to rein in the rest of the justices. That Alito can't conceive of compromises is a real problem. Minimally he needs to re-read any Federalist paper and history of the founding fathers where they are very clear on separation of church and state, and that the US is NOT founded on Christianity. Judeo-Christian values may have informed the discussions, but "informed" is not the same as "dictate". Justice Thomas needs to decide whether he believes in public service or private gain. If he was not making the money he thought he should have been making, then he could have done like most other people and gotten another job. There is no way for him to spin the gifts he's been given. But minimally, he needs to pay taxes on them. All I can say for the liberal justices, make sure you are working above board.
Bill and Andrew, to say "you've honestly got to feel for Chief Justice John Roberts" is nonsense. It is Roberts who has done more damage to democracy than any one else alive today, including Trump. Just look at his record on election law, designed since his role at the Justice Department under Reagan when he opposed Reagan's desire to renew the Voting Rights Act of 1965. His carefully planned, step-by-step execution of our election laws promoted White wealthy Christian Men into an autocracy: permitting unlimited dark money, claiming corporations are people too, pretending that we are a post racial society, and permitting excessive gerrymandering. See: https://campaignlegal.org/update/why-current-us-supreme-court-threat-our-democracy. This is a thorough examination of Roberts and democracy.