The U.S. Supreme Court Clipping Judicial Overreach

The separation of powers that characterizes governments in the United States assumes that each branch will act to further its own interests, given the salience of self-interest (and self-preservation) in human nature. It is assumed that the checks and balances between legislative, judicial, and executive branches will keep any one branch from dominating the other two, and, moreover, the government itself from becoming tyrannical at the expense of the liberty of the citizenry. It is not assumed or relied upon that a branch will prune itself without external pressure from one of the other branches. Yet the U.S. Supreme Court may have done so in ruling on June 27, 2025 to limit “the ability of lower-court judges to block executive branch policies nationwide.”[1] I contend that any real wing-clipping by 6 of the 9 justices is illusory rather than indicative of the federal judiciary unilaterally restricting itself.

“With their decision, the justices appeared to upend the ability of single federal judges to freeze policies across the country,” according to The New York Times.[2] The appearance is belied by the fact that the ruling would not go into effect for 30 days and “the justices laid out a potential path for challengers, saying that district court judges could consider whether to take up class-action suits seeking to bar enforcement of the executive order on a statewide, regional or even national basis.”[3] The latter basis would essentially enable a district-court federal judge to block an executive order from going into effect anywhere in the United States.  Groups that had challenged the executive order at issue—invalidating birth-right citizenship for children of illegal immigrants—quickly filed class-action suits in Maryland and New Hampshire, with others expected in the following week—well within the 30 days. As for the validity of the executive order itself, the court would decide that in a case scheduled in the court’s next term.

It is interesting that the justices “split along ideological lines” on a matter of judicial process rather than on the substance of the executive order.[4] Perhaps political ideology has more of an imprint on judicial rulings by the U.S. Supreme Court than most people realize. After all, Justice Sandra Day O’Conner wrote the majority opinion for Bush v. Gore (2000) before oral arguments were heard. Might it be that the conservative justices on the bench wanted President Trump to see a win for him even though the national judicial block of his executive order would likely continue uninterrupted? That president had been very critical of Justice Amy Barrett for another ruling, and she wrote the majority opinion on the case on whether district federal judges could block an executive order nationally. Indeed, the president declared himself the winner from the ruling even though the six conservative justices left open a way for district court judges to be able to continue wielding nationwide injunctions to block the president’s policies issued as executive orders.

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1. Abbie Vansickle, “Justices Put Limit on Judges’ Power, In Win for Trump,” The New York Times, June 28, 2025.
2. Ibid., italics added.
3. Ibid.
4. Ibid.

American Federalism and Equal Protection: Transsexual Children in Tennessee

On June 18, 2025, the U.S. Supreme Court ruled that a Tennessee law blocking transsexual children from being able to undergo puberty-blockers and gender-changing surgeries does not violate the Equal Protection clause of the U.S. Constitution. The court’s 6-3 opinion in U.S. v. Skrmetti was reported at the time to fall “largely along conservative-liberal lines.”[1] By this is mean ideological lines, both moral and political in nature. Such is grist for the mill for the broad judgment of an electorate, in what is otherwise known as popular sovereignty, which is superior to governmental sovereignty in a republic. Add in the fact that Tennessee is a member-state in a federal system in which the U.S. Supreme Court is on the federal level, and the broad judgment of the electorate takes on more significance to the extent that a federal system of an empire-scale union is in part supposed to take into account and protect interstate ideological differences that defy one-size-fits-all union-level policies. In other words, as cultural heterogeneity can be expected in going from state to state in an empire-scale union-of-states, efforts “from the top” to impose a single policy on every state do not allow the federation to breath. Political pressure could be expected to build over time if such a suffocating tendency eventuates, with the risk of dissolution increasing over time as if depreciation.

Because the U.S. Supreme Court can (and has) contributed to a one-size-fits-all compromising of federalism in favor of the General (i.e., federal) Government, Chief Justice Roberts wisely resisted the temptation (if he felt any) to decide the issue not only for the people of Tennessee, but also for the entire Union. “The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements. Nor does it afford us license to decide them as we see best.”[2] He was deferring to popular sovereignty. Because he did not find discrimination based on sex to exist in the Tennessee law and thus that it does not violate the Equal Protection Clause of the federal constitution, he was able to not only defer to an electorate to use its broad judgment, but also allow Tennessee some breathing room within the Union.

It is arguably more likely that the majority of the electorate in Massachusetts, for example, would be against the Tennessee law being adopted in Massachusetts, than that a majority of Tennessee’s citizens would vote to repeal the law. Both of these collective value-judgments being able to be codified into law is vital to the endurance of a federal system in an empire-scale union of states. Therefore, the strict scrutiny that sexual discrimination requires of any court should not be used as a crutch by which to “federalize” law in the United States or to replace the value-judgments of majorities of voters with those of justices. The fact that the decision fell along ideological lines means that value-judgments apart from jurisprudence were also involved in the decision, and thus that Roberts is correct that the contesting “sincere concerns” should not be resolved by fiat, but rather by means of ballots.

This is not to say that a federal court should sidestep cases that do involve significantly harmful sexual, religious, or racial discrimination on a minority, for majority rule is not absolute. Rather, the interests of an electorate and of federalism itself should be considered by judges and justices, especially when the law under the microscope has a legitimate purpose. In the present case, stopping children from blocking puberty is a legitimate societal goal because children are especially vulnerable to not being of mature mind on even themselves. Surgeries are of such consequence that this part of the law was not even contested. This means the law had at least some merit of intent and thus could not be rightly claimed to be intended to discriminate. Although historically some state governments have enacted laws intentioned to discriminate against Black Americans, that such laws were so blatant can be used as a litmus test for federal judges and justices to assess whether a law is inherently and intentionally discriminatory. Just because a particular law impacts only a group rather than everyone does not mean that the law necessarily violates the Equal Protection Clause. Put another way, just because a law costs or benefits only people who meet certain criteria, such as having a disease such as gender dysphoria, does not mean that unless everyone meets those criteria the law is unconstitutional.

In fact, the value of broad value-judgments being made by voters as the basis of a republic and the importance of not succumbing to one-size-fits-all-states trends by federal governmental institutions arguably warrant shifts in federal policy and jurisprudence. For instance, the use of referenda by governments so an electorate can assume an increased role on the level of value-judgments would solidify that foundation of American democracy, with elected representatives taking their cues from the broad strokes to implement them into specifics, whether laws or regulations. Furthermore, the U.S. Supreme Court could set a precedent whereby it is more difficult for that court to declare a state law unconstitutional under the federal constitution. That that court is a branch of the federal government means that there is at least an implicit conflict of interest on matters bearing on federalism, since justices are both nominated and confirmed by branches of the federal government. I once asked Sandra Day O’Conner why the court had not done more to counter this institutional conflict of interest. She replied, “It takes five,” meaning five justices to agree to do it, and that was a Republican-majority court!  That the U.S. is not a France or Germany with a large back yard, but, rather, of the same scale and federal-type as the E.U., is reason enough for the American state governments to flex their respective wings more so as to reflect or match the broad value-judgments of their electorates. On June 18, 2025, Chief Justice Roberts resisted the temptation to clip Tennessee’s wings and thus incrementally strengthened the federalism of the empire-scale union.

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1. Josh Gerstein, “Supreme Court Upholds Tennessee’s Ban on Gender-Affirming Care for Minors,” Politico.com, June 18, 2025.
2. Ibid.

Certifying a U.S. Presidential Election: A Constitutional Conflict of Interest

That it should go without saying that a constitution providing a government with its basic framework and procedures should not contain any conflicts of interest makes it all the more astonishing when an actual constitution is found to contain a obvious yet undetected conflict of interest that could be exploited by an institutional or officeholder and yet is easy to obviate, or fix. The implication in such a case is that a society can be too comfortable with institutional conflicts of interest without realizing that if such a conflict is exploitable, it is likely that it eventually will be even if not right away. Because U.S. President Don Trump’s pressure on his vice president, Mike Pence, on January 6, 2021 to refuse to certify the votes of the electors in some of the states did not result in any serious proposals to have another office than the vice presidency preside, a societal tolerance for even known conflicts of interests in general and in a constitution more particularly can be inferred. I submit that such a tacit willingness to continue with the status quo can eventually put even a republic itself at risk.

Speaking on January 6, 2024, U.S. Vice President Kamala Harris referred to her constitutional duty of presiding in a joint-session of Congress tasked with certifying the election that she had lost as something she took very seriously. The American people should not have to worry about whether a vice president might exploit the presiding role by resisting or thwarting a peaceful transfer of power. “Today was obviously a very important day,” she said, “and it was about what should be the norm and what the American people should be able to take for granted, which is that one of the most important pillars of our democracy is that there will be a peaceful transfer of power.”[1] Such a transfer lies at the core of representative democracy, so it is important that any risk of any impediment, whether an opportunistic person outside of a constitution or something lying in a constitution itself, be minimized. It is not, in other words, a minor matter.

Simply tasking the loser of an election with presiding over the counting of votes and the announcement of the winner should give anyone pause. At the very least, no one should be duty-bound to perform such a function—which can be thought of as “rubbing one’s face” in the affair, which can feel humiliating to the person.

Furthermore, politically, whether a vice president is a candidate for president as Harris was or is pressured to do the partisan or personal bidding of a president as Pence had been, having a partisan office preside is itself problematic not only for the presidency itself in terms sheer credibility, but also for a vice president in terms of the election process itself. Simply put, the vice president who is running for president or for another term as vice president is an active player in the contest and thus should not preside over the tabulation and certification of the results. As simple as this is to grasp, it must be difficult for enough Americans that the problem has been allowed to persist.

This is especially damning because the conflict of interest is easy to remove. The chief justice, or any justice, of the U.S. Supreme Court would be a natural fit for the presiding role as the judiciary is not (supposed to be) partisan. Put another way, a sitting president pressuring the vice president to declare some state slates of electors invalid is more likely than pressuring the chief justice to do that same. Institutionally, given the separation of powers in the U.S. Government, reaching out to the chief justice would be much more difficult than trying to pressure a vice president of one’s own administration. Having the chief justice, who swears in presidents, preside over the Congressional counting of the Electoral College votes for president as both the sitting vice president and Speaker of the House look on makes so much sense that it is sad state of affairs when the status quo is almost mindlessly retained even four years after the conflict of interest could have been exploited, with a riotous mob of partisans literally breaching the Capitol to convey additional pressure.

Putting the loser of an election in the position of having to publicly announce the victor is the smoke that points to an underlying constitutional conflict of interest; a mob pressuring a loser on a presidential ticket to abuse the presiding role of the vice president is more like fire than smoke. That the ensuing public discourse did not contain a proposal of a constitutional amendment assigning the task to the chief justice of the U.S. Supreme Court reflects very badly not only on the elected office-holders (and the media), but also on the American people, as it is government ultimately by the people. Perhaps a people gets the government, and constitution, that they deserve, for institutional conflicts of interest should be obviated whether in government, business, or in non-profit institutions.

Neither institutional relations nor processes should contain conflicts of interest that can be exploited because human nature is itself rather inclined to exploit them because of the instinctual urges that manifest as self-, office-, and institutional-interest even at the expense of the interest of the whole. Even though governments and economic systems tend to be based on such interests, the latter don’t have to be encouraged by the ongoing existence of institutional conflicts of interest. Continuing with the status quo can itself be thought of as a choice—one that reflects a certain underlying set of beliefs and assumptions that are valued, and even the extent of basic awareness.  Having seen not only smoke, but even fire, a people can indeed be faulted for having insufficient awareness, and this verdict is perhaps even more damning than that which concerns the naivete concerning human nature being able to withstand conflicts of interest without exploiting them in the long run. The sting of these verdicts hurts all the more when an institutional conflict of interest can be obviated relatively easily with a solution that is, or should be, obvious. Because power is that which is channeled in a political constitution, risking the exploitation of a conflict of interest that is in a constitution is not a smart choice if a viable, ongoing republic is desired.

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1. Aditi Sangal, “Congress Certifies Trump’s 2024 Election Win,” CNN.com, January 6, 2025.

Undermining the U.S. Supreme Court: Non-Jurisprudential Ideology and the U.S. Constitution

As in the case of the Roman Empire, which internal corruption likely weakened and even destroyed centuries after that empire had been a republic, modern republics are also not immune from internal decay. Even though political corruption can go under the radar, especially if systemic rather than merely episodic or around particular office holders, the subtle, gradual impact can be just as destructive than had Carthage defeated Rome’s general, Skippio Africanus, in north Africa. Making subtle decadence all the more embarrassing is the fact that it can be right under the noses of upstanding office-holders. I contend that this is the case with Chief Justice John Roberts of the U.S. Supreme Court.

In his annual report in December, 2024, Roberts “slammed what he described as ‘dangerous’ talk by some officials [in the two other branches, or arms, of the U.S. Government] about ignoring court rulings,” as that could result in a judiciary that is less than independent of the legislative and executive branches and their respective members.[1] Both Republicans and Democrats had “hinted at ignoring rulings in recent years.”[2] To Roberts, that every presidential administration “suffers defeats in the court system—sometimes in cases with major ramifications”[3]—is the main reason why some presidents, including Andrew Jackson, have been tempted to leave it to the high court to enforce its rulings rather than rely on the executive branch. But this explanation ignores something else—something just below Roberts’ nose.

Even as Roberts “lamented that ‘public officials’ . . . had ‘regrettably’ attempted to intimidate judges by ‘suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations,” the chief justice dismissed the claim of political bias as “inappropriate.”[4] I submit that the claim has sufficient basis to be taken seriously, and, furthermore, that it goes beyond questions about the ethics of particular justices, such as Thomas’ acceptance of vacations and Alito allowing his wife to fly a right-wing flag at one of their houses.

Proverbially with a straight face, the chief justice wrote in his 2024 year-end report that the role of the judicial branch is “to say what the law is.”[5] I submit that the justices do more than that. Just in the media referring to “the conservative 6-3 majority” contains the implicit assumption that there are indeed conservative and liberal justices and that such labels go beyond referring to jurisprudential hermeneutics (i.e., approaches to interpreting the U.S. Constitution) and even what opinions on what law itself is. Emphasizing what the words in the document meant in 1787 versus what they mean today, or privileging the original intent of the delegates at the U.S. Constitutional Convention versus interpreting the text in terms of the modern world are just two examples of how the words conservative and progressive (or liberal) could appropriately be applied to court justices in a way that delimits the extent to which their ideology can play a role.

I submit that when Justice Sandra O’Conner wrote the U.S. Supreme Court’s majority opinion before the oral arguments in Bush v. Gore—the ruling that effectively gave George W. Bush the federal presidency—something more political than jurisprudential hermeneutics being applied was in play. That O’Conner had been a Republican in Arizona’s lower house from 1969-1974 may have something to do with why she subsequently wrote the Bush v. Gore opinion for the conservative, Republican-nominated majority before even oral arguments were heard.

Furthermore, that justices who were against abortion constituted the majority opinion that overturned Roe v. Wade (1973) may suggest that a non-juridical ideology played a role, and thus that those justices went beyond merely deciding what the law is to stating what it should be. That the justices who constituted the majority in the Citizens United (2010) case were conservative, and thus likely pro-business, may have meant that the nonjuridical economic ideology of free, unencumbered markets even manifesting with money being free-speech was in play.

On the other ideological side, it is likely that attitudes towards race played a role in the liberal majority’s opinion in Brown v. Topeka Board of Education (1954) that separation is not equal and thus racial segregation in public schools is unconstitutional. Similarly, the finding of an implicit privacy right in the due process clause of the U.S. Constitution in order to render abortion legal in the Roe v. Wade decision may point to an extra-judicial ideology bearing on life and abortion, and even religion, as being in the driver’s seat.

When moral, political, cultural, or even religious ideologies or beliefs are salient in a judicial decision, then the designation of conservative or liberal points to a broader judgment both as concerning the justices themselves and their respective rulings. If such broadly-informed judgment is really what the electorate in a republic should bring to voting, then the implication is that public matters requiring or even just fitting such broad judgment should not be decided by unelected justices. I submit that such deference is precisely the point on which Roberts and his court (as well as other, past courts, including that of Warren) has lapsed. Individual judges and even an entire court can thus be seen as opportunistic in short-circuiting the prerogative that actually belongs to the popular sovereign: the people. This does not mean that the will of a majority of an electorate should trample over individual rights, as a judiciary is rightfully charged with protecting such rights precisely because a majority of an electorate may act heedless of minorities, as can legislatures and even presidents; but defending rights from majoritarian tyranny does not mean or require a judge coloring beyond the jurisprudential lines on a page to impose one’s own exogenous ideology, which anyone could do—hence the deference.

That the U.S. presidency, which unfortunately has been partisan at the expense of the credibility needed to preside, nominates U.S. Supreme Court justices and Republican or Democratic U.S. Senators (and occasionally an Independent) confirm the nominees means not only that politically conservative or liberal justices can be expected to be sitting on the bench, but also, and perhaps more importantly— though unfortunately almost invisible to the naked eye—the selection process itself is culpable in essentially exporting political judgments from the American electorates to the unelected justices. In short, Americans should not be surprised at all that political ideology, infused with moral, economic, and even religious valued beliefs, has such an impact in U.S. Supreme Court decisions. The U.S. Constitution itself is biased in favor of this, and that the amendment process is itself so hard to complete means that the vulnerability to partisanship on the bench that is structural in the document is effectively intractable.

Being human, all too human, all of us would love to imprint our respective ideologies on law, whether statutory or common. So, we should all have the means to do so through the vote. Essentially, I am arguing that popular sovereignty—government by the people rather than vice versa—has unwittingly ceded too much territory to the U.S. Supreme Court under the subterfuge of an expansive notion of judicial interpretation. Ironically, there is thus a silver lining in this respect to the anti-abortion justices imposing their moral or religious beliefs in overturning Roe v. Wade because as a direct result, some state legislatures have voted on legislation bearing on abortion and even the voters in some states have been able to exercise their popular sovereignty by being able to vote directly on the matter via referendi.[6]

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1. John Fritze, “Roberts Warns Against Ignoring Supreme Court Rulings As Tension With Trump Looms,” CNN.com, December 31, 2024.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. That last word is the plural form of referendum; you can blame Latin, and ultimately the Romans whose empire fell at least in part due to corruption within. No human social artifact can be expected to last forever. 

The U.S. Supreme Court Reining in Regulatory Agencies: Implications for the Imperial Presidency

In Loper Bright Enterprises v. Raimondo handed down by the U.S. Supreme Court on June 28, 2024, a majority of the justices overruled Chevron v. Natural Resources Defense Council, which had been the precedent giving regulatory agencies considerable discretion in coming up with specific regulations, given the penchant of the Congress to write vague laws. In the overturning case, a group of fishermen had objected to having to pay for government observers to board the fishing boats to monitor the fishing. On the merits, it does seem unfair for regulatory agencies to charge the regulated to be regulated. In overturning Chevron, however, Loper has much broader implications, chief among them being in terms of separation of powers—specifically in reining in the expanding power of the executive branch, here at the expense of the judiciary.   

Chevron had “required courts to give deference to federal agencies when creating regulations based on an ambiguous law.”[1] Loper could stimulate thought on whether Congress must necessarily promulgate law using vague language. Certainly Congress is capable of being quite specific when writing in loop-holes, or “carve outs,” for particular companies or industries in exchange for political campaign contributions. Moreover, from hearings, Congressional committee staff are surely capable of narrowing the discretionary area in which regulators can exercise considerable power that is essentially that of law-making. So one effect of Loper could be a shift of power from the executive to the legislative branch.

The decision also stood to “shift the balance of power between the executive and judicial branches.”[2] Although CNN goes on to claim that the decision “hands an important victory to conservatives who have sought for years to rein in the regulatory authority of the ‘administrative state’,” strengthening the role of the judiciary to look at administrative rulings is not in itself pro-business, as a judge could come down on an agency as being too lenient to an industry. The notion of regulatory capture, wherein whether from relying on data from a regulated industry or in exchange for lucrative future jobs in the industry for regulators, especially given government salary levels, means that giving courts more of a role in being able to evaluate and overrule agency rule-making and decisions could be a needed check against compromised regulators. At the same time, it is true that because the Supreme Court is the head of the judicial branch of the federal government, a decision that shifts power from one or two of the other branches to the judiciary puts the Court in an institutional conflict of interest (and the justices in personal conflicts of interest as their power would likely increase). Perhaps Congress should have been the branch to decide on the role of the judiciary with respect to the agencies in the executive branch.

Shifting power from the executive branch to the two other branches, especially the judiciary in this case, can also be viewed as a mild correction to the steadily increasing power of the U.S. presidency. In The Imperial Presidency, Arthur Schlesinger traces the increasing power that has come at the expense of the other two branches. The claim of such a correction may be problematic, as reining in regulatory agencies is not the same as reining in a president’s power, such as in exercising the bully pulpit in being able to speak directly to the American people directly as well as through a president’s surrogates. Also, a president as commander in chief and in promulgating foreign policy is unaffected.

It can even be argued that as presidents have typically been oriented to proposing broad policies for Congress to enact through law, that a president’s attention has been minimal in running the administrative agencies—essentially in supervising the cabinet secretaries in their administrative roles at their respective agencies. Such overseeing geared to specific regulations is, I submit, a function that presidents should attend to even more than proposing policies for Congress to enact. In other words, presidents should resist the sensationalistic allure of forming and publicly and privately “selling” policies or ideas for new programs to the extent that the time and effort of a president is monopolized thereby such that functioning as head of the executive branch, which implements law, is slighted. It could even be argued that the latter function should be primary. Were it in fact primary, then Loper would indeed be capable of redressing the historical trend of the imperial presidency to some extent because taking an active role at the regulatory stage would be a significant part of the actual power exercised by presidents. As of 2024 at least, Loper did not really touch the problem of the imperial presidency increasingly compromising the balance of power between the three branches of the U.S.’s federal government.

If democracy is ever at risk in the U.S., it would likely succumb to the hubris of an imperial president rather than to lawmakers in Congress writing laws with more specificity or judges overruling regulatory rulings. According to General Haig, President Nixon considered sending military forces to the Capitol to stave off impeachment during Watergate. Decades later, in December, 2023, protestors of the Congressional counting of the presidential votes of the states’ electoral colleges headed over to the Capitol from President Trump’s rally at the White House and successfully delayed the counting. On the very same day as its Loper decision, the U.S. Supreme Court handed down a ruling on another case—a decision that “limited the power of prosecutors to pursue obstruction charges” against the January 6^th protesters at the Capitol.[3] To the extent that that ruling could enhance the imperial presidency itself, June 28, 2024 at the Court may actually have been a net-gain for the presidency.

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1. John Fritze, “Supreme Court Overturns 1984 Chevron Precedent, Curbing Power of Federal Government,” CNN.com, June 28, 2024 (accessed June 29, 2024).
2. Ibid.
3. John Fritze et al, “Takeaways from the Supreme Court’s Decision on January 6 Charges and What It Means for Donald Trump,” CNN.com, June 28, 2024 (accessed June 29, 2024).

The Colorado Supreme Court Bars Insurrectionist Trump: Who Should Ultimately Decide?

On December 19, 2023, Colorado’s Supreme Court ruled that Don Trump, a former U.S. president, had engaged in insurrectionist activity as a matter of fact, and furthermore, as a matter of law, the U.S. Constitution bars him from holding any office, including the presidency. With an appeal to the U.S. Supreme Court a certainty, realized even by the Colorado justices, and some notable (and very visible) Republicans arguing that the American people should have the final say on whether Trump will be president again beginning in 2025, the question of who should have the final say—the judiciary or the people—was pressing, and indeed, very important. I contend that the determination of fact should have been made by a jury in a criminal proceeding, and that even absent that, the ultimate decision should still be made prior to, and thus not during, the election, for the question is whether Trump can be listed as a candidate for the office. Ultimately, the tension lies between the value of a politics-free judiciary and democratic (majority) rule.

Section 3 of the 14^th Amendment to the U.S. Constitution “prohibits anyone who swore an oath to support the Constitution and then ‘engaged in insurrection’ against it from holding office.”[1] The Colorado Supreme Court reversed the decision of a trial judge with the simple logic that the section doesn’t explicitly mention the U.S. Presidency because it is so obviously an office. That it is so because, as the majority of Colorado’s high court’s justices wrote, the presidency serves “we the people” seems more like rhetoric than logic; the majority opinion could have left it at the rather obvious point that the presidency itself is not mentioned in section 3 because that section refers to all offices, federal and state, as being subject to the prohibition. Indeed, in political discourse, “the office of the president” is often mentioned, so the point hardly seems necessary to be made, but for the strange reasoning of the trail judge who had sought explicit mention of the presidency as if it were not included in “any office, civil or military, under the United States, or under any State.”[2] That both appointed and elected offices are included is also indisputable on the face of it, and that the section expressly names senator and representative in Congress does mean that the presidency too must be named, for the distinction here is between the legislative and the two other branches (a justice is also an office). In fine, the presidency of the United States is indeed a governmental office.

Colorado’s high court was on shakier ground, and this is noted in the dissent in the 4-3 opinion, in accepting the district judge’s determination of fact that President Trump had “engaged in an insurrection.”[3] Insurrectionist activity was at the time a federal crime in the U.S., and yet Donald Trump had not even been charged with the crime, much less convicted by a jury. Rather, a district judge had made the finding of fact, such that not even any criminal sentencing could be done. At Yale more than a month before Colorado’s high-court ruling, I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, whether someone would first have to be charged and convicted of insurrectionist activity. “No,” he said flatly, without feeling the need to elaborate.[4] I thought I had asked a stupid question until I read in Colorado’s decision that the dissent makes the same point. Presumably someone should be found guilty of the crime before being barred from holding any public office because of said crime. Therefore, I submit that Colorado’s majority opinion erred in accepting the district judge’s determination of fact in lieu of any criminal prosecution and conviction as a sufficient basis apply the 14^th Amendment to Donald Trump.

Given the weaknesses in the judicial rulings of both the lower and higher court in Colorado, it is a good thing that the U.S. system of government is federal because the U.S. Supreme Court could make corrections. By implication, perhaps a plurality of state supreme courts should be able to overrule a decision of the U.S. Supreme Court. Checks and balances should apply to the judiciary too. Relatedly, the lack of check and balance concerning some of the unethical gifts taken by Justice Thomas of the U.S. Supreme Court from a Republican activist could diminish the legitimacy of the U.S. court in being the final decider on the questions of Donald Trump being an insurrectionist and, furthermore, being barred from holding any office. 

After the decision of the Colorado Supreme Court was made public, some of the Republican candidates for president publicly asserted that the American people should decide through the presidential election whether Trump should be president. A number of serious problems attend to this proposal.

Firstly, it is highly unrealistic, to say the least, that every voter would vote on the basis of the question of whether the U.S. Constitution forbids Trump from holding office. Even if Trump were to lose the election, it could not be inferred that the American people had decided that Trump was barred and thus could not hold any office.

Secondly, such a position incurs the worries noted by James Madison in his Notes on the constitutional convention that excess democracy, such as by having a de facto democratic judiciary (i.e., decided by votes of the people rather than rulings by justices), brings with it insufficient check on the passions of the people. A judiciary is one such check, and judicial review renders that branch a check also on the two other branches of government. In short, leaving the final word in interpreting the constitution to “we the people” leaves us without the ability to protect us from ourselves. For example, the rights of the minority would have no protection against the tyranny of the majority—democracy of course being by majority rule. Not the least of considerations, politics would also inevitably be involved.

Even in the U.S. Supreme Court, politics have likely been more of a force than the public realizes. Justice Sandra Day O’Conner, whose funeral took place just days from Colorado’s high-court ruling, had written the majority opinion for Bush v. Gore (2000) even before oral arguments were heard. She had been active in the Republican Party when she was an Arizona legislator, and her majority opinion sided with Bush. Objections to her partisanship imply a belief that the judiciary should be neutral politically.

Handing over the court’s functions to “we the people” would only add politics to constitutional interpretation. Voters in favor of Trump personally, or his policies, would likely find that he did not engage in an insurrection, and thus that the Constitution does not bar him from holding any office. President Biden’s supporters would be inclined to view Trump’s speech on January 6, 2020 as fomenting an insurrection. Who then should decide? This is the rationale for having a judiciary, especially where criminality is to be decided. Just as politics should not be criminalized, so too criminal proceedings should not be politicized.

I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, why the federal prosecutor had not included insurrection among the criminal charges against Donald Trump. “It’s messy,” the judge replied. He meant that it is difficult to get a conviction. If so, then the fact that the district judge in Colorado so easily found that Trump had indeed been engaged in insurrectionist activity by urging his supporters to disrupt the counting of the electors’ votes for president warrants strict scrutiny. In other words, if the charge is “messy,” then shouldn’t a jury hear the case and be made to deliberate? Then, of a jury were to convict the former president, then appellate courts, including ultimately the U.S. Supreme Court, would be oriented exclusively to deciding the questions of law concerning section 3 of the 14^th Amendment.

Separating the criminal proceedings from the work of the U.S. Supreme Court would buffer the impact of politics inside that court unless its justices would disregard a jury verdict. Such a rationale would have to be strong in its reasoning, least it appear to be part of a political effort to decide the 2024 presidential election by judicial fiat, as in 2000. Such an effort would effectively prioritize a decision by the electorate. Absent such judicial corruption, deciding whether section 3 of the 14^th Amendment applies to Don Trump by an election incorrectly treats the United States as a direct democracy rather than a republic in which democracy is a part of the system of the system of government. Especially when democracy itself is in dispute, a judiciary free from politics is so very valuable. Boasberg’s dismissiveness of my two questions at Yale in early November, 2023 left me wondering about the neutrality of the federal judiciary. At the very least, what he took for granted is hardly settled law.

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1. Nicholas Riccardi, “The Constitution’s Insurrection Clause Threatens Trump’s Campaign. Here Is How That Is Playing Out,” APNews.com, December 20, 2023.
2. The U.S. Constitution, Section  of the 14^th Amendment.
3. Kinsey Crowley, “What Is the 14^th Amendment? Why Colorado Disqualified Trump and Removed Him from Ballot,” USA Today, December 20, 2023.
4. Not even the report of the judge’s talk in The Yale Daily News includes any mention of the judge’s answer to my question. Presumably the student-reporter did not think the reply could be controversial.

On the Role of the U.S. Supreme Court in Safeguarding the Peaceful Transfer of Power

In the E.U., the state governments and federal institutions can ask the European Court of Justice (the ECJ) for an opinion on a legal matter. This is rare in the U.S., though waiting for a dispute to winds its way formally through district and appellate courts may be unduly bureaucratic, not to mention lengthy. On December 11, 2023, Special Counsel Jack Smith asked the U.S. Supreme Court the ECJ’s counterpart, to decide whether the former U.S. president Donald Trump had any immunity from criminal prosecution of his involvement in the riot at the U.S. Capitol that interrupted the formal counting by a joint session of Congress of the Electoral College presidential ballots. The trial was set to begin the following March, and the question of the former president’s immunity had to be decided before the trial could begin. Hence the “extraordinary request,” which I contend should not be extraordinary given the time frame and the important role of the highest court in safeguarding American democracy from domestic threats.

The prosecutor asked the U.S. Supreme court to review district Judge Tanya Chutkan’s ruling that Donald Trump is not immune from “the election subversion prosecution case.”[1] Trump’s lawyers had argued that Trump’s actions in speaking outside the White House on January 6, 2020 were part of his official duties because he was protecting the American democratic system from alleged vote-fixing by Democrats. Chutkan rejected that argument, pointing out that the speech was oriented to Trump’s re-election and thus was not part of a president’s official duties—efforts to secure another term extend beyond the performance of the office within the current term of office.  Essentially, applying to continue in an office is not a function of the office. Chutkan classified Trump’s speech as falling under the rubric of campaign speeches even though the election had passed because he was using the speech to try be re-elected by Congress (by disputing the authenticity of several state electoral ballots).

To be sure, it was not as if Trump went with the option that he was considering of surrounding the Capitol with tanks—something President Nixon had also considered doing in 1974 during the Watergate scandal, which by the way ended up prompting him to resign. Instead, Trump was trying to throw the election to the Congress by pressuring it to vote on the validity of several of the Electoral College ballots that had been submitted by the state governments to be counted. The U.S. Constitution does give Congress a role in presidential elections, both in certifying the ballots and electing a president outright if no candidate gets a majority of the Electoral College votes. Had there been evidence of significant election fraud that would justify Congressional votes on the Electoral College ballots from several key states such as Arizona, Pennsylvania, and Michigan, then Congress could have intervened while staying within the constitutional framework. It was Trump’s way of applying pressure, by instigating a mob to disrupt the official counting, that resulted in the federal indictments that run just short of insurrection. By the way, I asked a judge on the D.C. district court why he thought Trump had not been indicted on insurrection. “It’s too messy,” he replied. “Isn’t that charge and a conviction based expressly on it necessary for someone to be barred from running for office in the U.S.?” I asked. “No,” the judge replied. “A judge in Colorado is looking at that now,” he added, presumably without there being a trial. It’s a pity that no one asked the U.S. Supreme Court to rule on what a Colorado judge was doing in lieu of a trial on the facts decided by a jury.

Perhaps even more than the presumption of innocence unless convicted of a crime, the rule of law applied even to U.S. presidents is vital to American democracy. Writing to the U.S. Supreme Court, the prosecutors with the special counsel insisted that “nothing could be more vital to our democracy” than holding a former U.S. president accountable for breaking a law.[2] Indeed, a “cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former president of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor.”[3] Many democracies have turned into military dictatorships precisely because the peaceful transfer of power was not respected. With a past of rule by kings, both domestic and colonial, many African countries have had trouble with the peaceful transfer of power. As a result, the foreign direct investment of multinational corporations has not been as large as the continent would need to develop economically. Even though it was hard to imagine a military coup in the U.S. in 2023, the precedent of a president getting away with having violated the U.S. Constitution could begin a slippery slope downward. More than sufficient grounds existed in 2023 for the U.S. Supreme Court to fast-track the question of Trump’s immunity.

The question of whether the trial could go forward was subject to time constraints; were the trial date of March, 2024 delayed pending the question of Trump’s immunity from prosecution going through the lengthy appellate process, the question of Trump’s guilt could still be unanswered by the next presidential election, in early November, 2024. Even though several presidential candidates were insisting that they would support a convicted felon for president, presumably voters would want to know whether Trump had committed a crime in attempting to thwart the results of the 2020 presidential election before casting their respective ballots.

Hence, the prosecutors wrote to the U.S. Supreme Court, “Respondent’s appeal of the ruling rejecting his immunity and related claims, however, suspends the trial of the charges against him, scheduled to begin on March 4, 2024. . . . It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.”[4] The public importance has to do with the electorate having as much information as possible concerning the charges against the presidential candidate before going to the polls that upcoming November.

The fast-tracking would not be without precedent. In US v. Nixon (1974), the U.S. Supreme Court fast-tracked the question of Nixon’s claim of presidential privilege in being immune from a Congressional subpoena for the Oval Office tapes. “In that case, the high court moved quickly to resolve the matter so that one f the Watergate-era cases could proceed swiftly.”[5] It was not long after the ruling that the White House handed over the tapes to a congressional committee, and Nixon’s political fate was doomed from that point. Indeed, the difference between Nixon’s public persona and what he had been saying behind closed doors stunned many Americans who had no idea that even a “law and order” president could have such a squalid criminal mind. The public interest in furnishing the American electorate in 2024 with as much crucial information as possible on one of the presidential candidates can thus be appreciated. It should not be “extraordinary” for the U.S. Supreme Court to see to it that Trump’s federal trial could take place in time for the 2024 presidential election. Winding down the clock, to use a sports analogy, should not be a tactic that any defendant in a criminal trial should be able to use effectively, especially if accountability protecting the peaceful transfer of power is at issue.

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1. Hannah Rabinowitz and Devan Cole, “Special Counsel goes Directly to Supreme Court to Resolve Whether Trump Has Immunity from Prosecution,” CNN.com, December 11, 2023.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.

On Trump’s Eligibility to Run for President: Who Decides?

The 14^th Amendment of the U.S. Constitution “bans anyone who took an oath to uphold the Constitution but who subsequently ‘engaged in insurrection or rebellion against,’ or gave ‘aid or comfort of the enemies’ of the Constitution from seeking any federal or state office.”[1] Did Donald Trump, when he was President of the United States, engage in insurrection? Furthermore, who decides this and bars him from office?

During the summer of 2023, lawyers opined on whether Don Trump is eligible to run for the U.S. presidency in 2024. It is one thing for lawyers on law-school faculties to decide whether Donald Trump, a former U.S. President as of 2023, is ineligible to run for president in 2024; it is quite another thing for the U.S. Supreme Court to make the determination; only the latter has governmental legitimacy that can legally be enforced, for the U.S. Constitution gives the federal supreme court the task of interpreting that constitution. In this case, the high court would be in the position of making decisions of fact—did Trump engage in an insurrection—and applying that decision to the 14^th Amendment. “The question of Donald Trump’s disqualification under the 14^th Amendment will be decided by the Supreme Court,” Michael Luttig, a conservative former federal appellate judge said in 2023.[2] Aside from the prediction, I contend that it should be.

The comment made by Luttig, who had actually been a judge, didn’t stop lawyers who teach at law schools from writing as if their own opinion were enough to render the former president ineligible to run for president. Just because someone ventures an opinion does not make it so. Even lawyers who specialize on writing in the field of constitutional law are, after all, merely private citizens like the rest of us. Of course, they, along with the rest of the American electorate, could decide indirectly through voting for or against Don Trump on the basis of determinations of whether he engaged in an insurrection. There are several problems with this method.

First, the voters would need to know how the framers used the word, insurrection, assuming an original intent hermeneutic, or else what the word means in its legal sense in 2023. The electorate would also have to “research”—and some potential voters put me off when I canvassed door to door by saying that they needed to research the candidates (yeah, right)—the Trumps various actions that could be considered to be insurrectionist: urging a crowd to pressure Congress on January 6, 2020 when it was counting the states’ respective ballots of electors, telling Vice President Pence that he had the authority to substitute slates of Trump electors in Arizona, Georgia, and other states, pressuring election officials in Georgia to “find” votes so Trump would win the state, and considering the use of the military on the capitol so Congress would use his slates of electors in states that he lost. Thomas Jefferson and John Adams agreed in retirement that an educated and virtuous citizenry is essential to the viability of a republic. They are also necessary for an electorate to apply constitutional vigor even to a candidate whom some voters like.

Secondly, letting the voters decide cannot keep Trump off any ballot prior to the election, not to mention prior to the Republican Party’s nomination process, because an election is the means by which voters would decide Trump’s fate. Former New Jersey governor Chris Kristy’s assertion, “The voters of our party are going to need to determine this question,” is neither competent nor fair to the Republic Party. An election before the election might be feasible, but then perhaps the first election would then de facto be the presidential election itself.

Deciding the matter by whatever means after the Republican Party’s convention would not be fair to the party. If election officials or a court later decide that Trump is ineligible, the party would suddenly be left, after its convention, without a nominee for president.[3] Because the U.S. Supreme Court “keeps its own schedule and is not bound by electoral deadlines, there exists the possibility that Trump could lock down enough delegates to win the Republican nomination—or even be officially nominated—only to be subsequently removed from the presidential ballot.”[4] Perhaps in such a case the Republican National Committee would be tasked with selecting the nominee, opening the door to the possibility of “back room” political deal-making and even bribes. That rather undemocratic consequence would be ironic if the people had been the deciders in a special election or referendum.

So, leaving the matter up to the voters is problematic; the matter of a nominee could ironically be decided by committee. That leaves us with either election officials acting independently of each other or all together, or the U.S. Supreme Court justices to decide. Just because some citizens claim that Trump is ineligible to run for office does not make it so. That almost all lawyers teaching constitutional law in the United States have only one—hence undergraduate—degree in law is all the more reason why their writings should not be taken as binding for election officials. Even if “the case is not even close,” as William Baude and Michael Paulsen wrote, it is not necessarily the case that, “All who are committed to the Constitution should take note and say so.”[5] Not only are articles in law reviews, whose editors are undergraduate law students, not objective analysis at least in constitutional law; such writings can be deemed political, and even instances of political activism claiming that readers should take action of a political sort.

But should election officials of local, state, or federal jurisdiction be the deciders? I contend that they should not. Firstly, if even just a few officials at the local or state level decide to exclude Don Trump, then the judgment in favor of Trump by other election officials would be impaired because he would not be on the ballot in every locale or state. It would be extra-constitutional (i.e., outside of the constitution) should all of the officials in the U.S. vote on whether to exclude him, for all of the officials, as a group, are not organized as a group constitutionally. Secondly, election officials do not necessarily have expertise on what exactly constitutes insurrection. Thirdly, they would inevitably be sued, whatever they decide, so the U.S. Supreme Court would be the final decider anyway.

An alternative way that the high court could wind up deciding on Trump’s eligibility would be deciding the inevitable appeal that would be made if Trump will have been found guilty of insurrection by a jury. It is significant that Trump had not been indicted on the charge of insurrection even though 91 charges were leveled against him as of August, 2023. Presumably Jack Smith, a Special Council in the U.S. Justice Department, would have charged the former president with insurrection had evidence existed to support that particular charge. Unlike the lawyers who teach in law schools, Smith had a formal means—a grand jury and a court with a judge—to make the charge, and he did not. Smith also had access to the evidence, which lawyers in law schools did not have. So, it is odd that the lawyers who claimed that Trump had engaged in an insurrection did so knowing that Smith had decided not to level that charge. Even stranger would be such a lawyer presuming that one’s opinion, whether in an interview or argued in an article in a law school’s undergraduate publication, is sufficient for election officials to keep Trump off their respective ballots.

In short, it could be argued that because Trump has not even been charged with insurrection, he cannot be found to be ineligible for office based on insurrectionist activities. It could also be argued, however, that the inclusion of insurrection in the 14^th Amendment is a political rather than a judicial matter. Under this reading, Congress could pass a law—rather than using the word insurrection for January 6^th in an award given to three Capitol Hill police employees—declaring that Trump engaged in an insurrection, and the high court would decide the inevitable constitutional challenge in court. But unlike impeaching and removing a president from office, no constitutional language supports applying the political process of how a bill becomes law.

Of all the chatter by experts and non-experts alike, the fact that Jack Smith did not charge Don Trump with having engaged in an insurrection is most salient to me in this case. To be sure, the U.S. Supreme Court justices could find that if he is found guilty of any of the existing charges bearing on January 6^, 2020, pressuring Georgian officials to “find” votes, or instigating false slates of electors in a few states, that they constitute insurrectionist activities.  The “finding” of votes, such as probably happened in Chicago in 1960 for Kennedy, constitutes garden-variety corruption in American politics, however. Even so, the justices could find on their own that Trump is guilty of fomenting or agitating an insurrection. The justices would need a suit to be brought to the court, however.

The legitimacy of the court as the final arbiter hinges on the nonpartisan nature of a judicial ruling that is based on legal reasoning. Unfortunately, the U.S. Supreme Court had its legitimacy tarnished by imprints of politics. In 2023, the media reported that Justice Sandra Day O’Conner had written the majority opinion of Bush v. Gore (2000)—the case that effectively handed the presidency to George H.W. Bush—before even the oral arguments. She had been a Republican legislator in the Arizona legislature. In signing onto the court’s majority opinion in Dodds v. Jackson (2022), which overturned both Roe v Wade (1973) and Planned Parenthood v. Casey (1992), some of the justices reneged on their confirmation-hearing statements that they would respect Roe v. Wade as precedent on abortion. All of those justices had been nominated by Republican presidents. In this context, the court’s ruling on whether Don Trump is ineligible to run for president would likely be seen as political, especially if the majority were to hold that he is ineligible even though the Special Counsel had not included insurrection among the charges bearing on the riot at the Capitol on January 6, 2020. The need for an impartial, judicially-oriented supreme court could not be more; in fact, the eventual undoing of the United States might be triggered by the absence of any such honest broker outside the reach of political factions.

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[1] S.V. Date, “Trump May Need Supreme Court To Say His Coup Attempt Does Not Violate Constitution,” The Huffington Post, September 2, 2023.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.

The U.S. Supreme Court: Free Speech Trumps Public Accommodations Law

I contend as a matter of reasoned opinion rather than infallible fact that the Free Speech protection in the U.S. Constitution applies to not only human beings, rather than to non-human legal “persons” (e.g., corporations), but also to speech where the purpose is speech rather than something else. I have written elsewhere on the mistake in treating corporations as if they were human beings, so I treat only the second claim here. I reference the first claim only as context for my broader claim that the U.S. Supreme Court has tended to over-extend applications of the free-speech clause not only beyond its original intent, but also common sense. The latter violation is particularly astonishing. 

That clause, I submit, is oriented to forbidding the state from blocking or punishing what a person would otherwise say or write. The state compelling speech is a different matter, though that too ought to be prohibited in a free society. Also, where the purpose is business, standing up to the state in what a person says or writes is yet another matter. So if I open a business that sells ice-cream, for instance, I would be mistaken were I to view having chocolate ice-cream as a matter of free speech. I would not be selling chocolate ice-cream in order to say something, but to sell a product.

In Creative LLC v Elenis (2023), the U.S. Supreme Court decides in favor of an evangelical Christian whose business includes web-page design for weddings. She maintained that her religious belief against gay marriage should be an exception to the state’s public accommodations law, which bars discrimination against a protected class. Colorado, on the other hand, “argued that its Anti-Discrimination Act regulates sales, not speech, to ensure ‘equal access and equal dignity.’”[1] In other words, making and selling a product (or service) in order to profit financially is not speech. 

So Gorsuch, who wrote for the majority, incorrectly refers to “speech like Ms. Smith’s conveyed over the internet.”[2] At the very least, it is misleading to characterize Smith as conveying speech on the internet, for her purpose and the contours of her activity was to make and sell a product. She was not posting essays, for instance, or constructing her own website (her company’s website too was oriented to selling products rather than conveying “speech”). For a bit of context, the Russian bloggers posting essays online on the Ukraine war at the time would have shaken their heads in disbelief had someone told them that the website of a business engaged in selling products is really about speech rather than business. Even Target, an American retail company, did not put gay Pride flags for sale on the company’s website to make a statement; rather, the company was selling a product. Were the company making a political or ideological statement by adding gay Pride colors to the website, then that would fall under free speech. Smith was not making a political or ideological statement; rather, she was selling a product—webpages for weddings.

Gorsuch attempts to hold the ruling back from enveloping business in its entirety by carving out the production of a product that is "expressive" of the person who makes the product. But a web-page is not a piece of art unless that is the purpose. Also, virtually any product could be said to be "expressive," for product-design itself expresses the work of a designer. Put another way, Smith's own personal website, or even the website of of her business, can be said to express herself in a way qualitatively different from the websites she makes for clients. Gorsuch conflates the two and thus ignores the distinction. He thus unwittingly set up a slippery slope by which virtually anyone in business can obviate public-accommodations law simply by arguing that one's work expresses oneself in some way. Locke, after all, argues that a person mixing one's labor with a piece of land is sufficient to turn it into private property. 

The real tension associated with public-accommodations law is not free-speech; rather, the right of private property is that which is circumscribed by the government mandating that protected classes be served. Smith could have argued that her business’s niche was Biblically-based weddings, based on the fact that the business was her private property. For she was using her property for productive rather than speech purposes, and the substance of her enterprise was making and selling products rather than publishing speeches or essays, or even making a political or ideological statement.

Public accommodations law is not absolute. A store manager of a Starbucks coffeeshop had demonstrated this in having two people removed because they had refused to purchase anything and then ignored the manager’s authority, which in turn is rooted in the right of private property. That those two people were of the Black race is besides the point; anyone, protected class or not, who sits at a table in a restaurant but refuses to order anything is subject to the right of private property. Insecure, Starbucks’ upper management capitulated to the unfair criticism by showing the public that the company could discriminate against Caucasian employees, including a regional manager, who had won her case in court less than a month before the Supreme Court’s decision on “free speech.”

Unfortunately, the dissenting opinion of the court obsesses over discrimination, and President Biden said the court’s decision was unthinkable. The opposition missed an opportunity to point to the jurisprudential mistake in the majority opinion, wherein selling a product is itself characterized as free speech. This rather basic category mistake was missing from the dissent, given the salience of ideology on the court, which in turn is another problem.  I submit that public discourse in the U.S. too often skirts or overlooks underlying problems, while obsessing on flash-point ideological agendas. I write in large part to uncover depth such that it might be more highly valued and sought after.

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1. Andrew Chung, “US Supreme Court Deals Blow to LGBT Rights in Web Designer Case,” Reuters, June 30, 2023.

2. Ariane de Vogue and Devan Cole, “Supreme Court Limits LGBTQ protections with Ruling in Favor of Christian Web Designer,” CNN.com, June 30, 2023 (accessed same day).

The Senate Trial of President Trump: Riddled with Conflicts of Interest

At the beginning of a U.S. Senate trial on whether to remove an impeached U.S. president from office, the senators take an oath to be impartial jurists. The impartiality is important because the senators are theoretically to listen to the partial U.S. House prosecuting managers and the president’s defense lawyers. Were the senators themselves partial, they would simply reflect the two sides that make their respective cases. In the trial of Donald Trump, I submit that few if any senators had any intention of being impartial and thus as serving as a jurist rather than as an extension of the prosecutors or defense. In effect, the verdict is left to whichever political party controls the Senate. I contend that having the Senate try presidents is problematic due to a conflict of interest.

To be sure, removal from office requires a two-thirds majority so the verdict cannot be made only by one party—especially if it is other than that which the president heads. Yet to reply in such a scenario on the party that the president heads brings in a conflict of interest. Such a conflict is particularly pronounced when the president’s party controls the Senate. In such a case, even the rules of the trial, which are decided by majority vote, can be expected to be skewed in favor of the defendant (i.e., the president). It is simply too much to ask human nature to be impartial whether in setting up the trial or in acting as an impartial jurist in such a conflict of interest. This is why I contend in Institutional Conflicts of Interest that conflicts of interest are inherently unethical (i.e., even they are not exploited for personal or institutional gain).

The gravity of the conflict of interest can be easily detected when it is being exploited in rather obvious ways. Sen. Lindsey Graham (Republican), “a close ally of the [Republican] president, criticized Democratic House managers’ arguments at the trial in recent days, calling Thursday’s presentations ‘like way too much. [1] Graham made the comment when the prosecutors were making their opening statement, so the implication is that he was already not impartial for he did not wait until even the conclusion of both opening statements to make his statement. The sheer brazenness suggests that senators of both parties may have regarded the oath of impartiality as a sham. Indeed, even the labeling of the prosecutors as Democrats and the defense attorneys as Republicans can tell us that political partisanship dwarfed the oath.

In the trial of President Trump, the party he headed at the time controlled the Senate. Given this conflict of interest, it is not surprising (sadly) to find the trail schedule modified to suite the president. After he complained about low television viewership-levels on Saturdays being “Death Valley in T.V.,” the Senate’s majority leader announced that the first day of the president’s defense attorneys’ opening statement, which was on a Saturday, would only be for a few hours. The defense was “planning a more robust presentation for Monday and Tuesday.[2] To be sure, two Democratic Senators running for president had campaign events scheduled for that Saturday night, but I submit that the majority leader was more attentive to the defendant’s wishes than to campaigning senators of the other party—the one that the president does not head. The defendant was able to schedule his own trial.

The president’s reach extended even to whether the trial would have witnesses! Former National Security Director John Bolton could have provided a first-hand account of the president having admitted to holding appropriated military aid to Ukraine until the Ukraine president publicly announced that his government was launching an investigation into Trump’s likely presidential rival in 2020, Joe Biden (and his son). But the president’s majority party in the Senate refused to allow the witness nonetheless, even as the president’s defense argued that the prosecutors had not provided first-hand account testimony from an impeachment witness in the House (which in turn is debatable).

Impartial jurists of the president’s party argued as if they were part of the defense that calling witnesses could run into the obstacle of the president claiming executive privilege. One of the prosecutors, a member of the opposition party, replied that the U.S. Chief Justice, who was presiding over the trial, could make such a determination, but such a rule could be overridden by a majority vote (the president’s party being in the majority) by the Senate.[3] Here again the institutional conflict of interest is evident. Senators of the president’s own party could vote to override the Chief Justice to block witnesses in the trial.

Even in terms of documents that the president had refused to provide to the U.S. House in its impeachment investigation, the Senate’s majority looked the other way. Rep. Sylvia Garcia, a prosecuting manager, said in the opening statement, "The House investigative committees sought a total of 71 specific categories of documents from six different agencies and offices. President Trump blocked every single one of these requests, all of them." Between Dec. 27, 2019 and Oct. 10, 2019, Garcia said, “House investigative committees issued subpoenas to the State Department, the White House, the Office of Management and Budget, the Department of Defense and the Energy Department. Some agencies initially suggested that they might comply. Some turned over documents to the Trump administration so they could be turned over the Congress. But in the end, the president turned over nothing in response to the House impeachment inquiry,” she said.[4] Surely national security would not have been compromised in all of those documents, yet the Senate exploiting the conflict of interest would tell future presidents that supplying documents critical of the administrations can be avoided. What then of the legislative check on the executive branch?

Was the trial of President Trump even a trial without witnesses, potentially critical documents, and even an impartial jury? To the extent that the defendant could get his way even in the voting on the trial’s rules, could the trial be viewed as valid? Apparently it was. Not even the Chief Justice could enforce the oath of impartiality. Senators having made statements showing prejudice for or against the defendants could perhaps have been disqualified. The two-third majority could then perhaps have been applied to senators with an open mind, although silence does not necessary mean that a person is impartial. Also, presumable the Senate could override the ruling on particular senators or forbid such rulings, as no one likes to be excluded. Again we would find a conflict of interest in the disciplined being able to overrule the impartial judge.

Hamilton suggested at the constitutional convention that the U.S. Supreme Court decide whether an impeached president should be removed from office. It was felt, however, that such a role would put the impartial court into the political realm, especially to the extent that the justices are biased toward the defendant one way or the other. Justices are nominated by presidents, after all. I contend that such bias would be less intense than in the U.S. Senate because judicial reasoning and judgment can temper the influence of politics in the Supreme Court even though ideological bias is likely present generally (though it may be indirect, rather than direct as in the Senate). Put another way, the defendant’s party controlled the Senate, but the justices would be less likely to take orders from the defendant, especially given the Court’s reverence for the institution of a trial (e.g., witnesses, impartial judges and thus scheduling). In contrast, senators may tend to view a trial of a president as fitting within the framework of a political debate, wherein no one is impartial and “horse-trading” to get votes to exploit a conflict of interest are acceptable. Imagine a jury of a criminal trial making deals in deliberation such as, “You vote guilty and I’ll see that you get a car loan.” In the Senate, the majority (and minority) leader could privately promise something of political or economic value to a senator of the same party who would otherwise vote to allow witnesses. Indeed, if enough majority-party senators are not impartial, setting the rules of the trial is also a conflict of interest. In the Trump trial, the majority leader was opposed to witnesses even before he took the oath of impartiality. Rather than having the Senate establish the rules, the U.S. Supreme Court could do so in order to obviate the conflict of interest, which is especially pronounced when the Senate votes on rules (such as whether to allow witnesses) during the trial!

What about having the American electorate act as the jury? Is there any basis to assume that We the People would be less partisan? The biases in the Senate may be a muffled representation of a polarized electorate. Additionally, the electorate was largely not following the trial, let alone listening to the opening and closing statements. In the case of the Trump trial, the next presidential election would be in less than a year. In a presidential election, a myriad of factors come into play--the articles of impleachment being just two. Less knowledge of the case is needed; the matter is more one of an overall judgment of the incumbent (as well as the challenger). Lest it be argued that the regular elections be sufficient to hold a president accountable, such reliance would do nothing to purge the U.S. of a criminal such as Nixon mid-term in order to stop the bleeding. It may be that a majority of the senators assessed the two articles of impeachment against Trump as not sufficient to justify removing the president from office, but given the institutional (and possibly personal) conflicts of interest, the electorate cannot be confident. Judging from the smile on the majority leader's face just after he met with a republican senator previously in favor of allowing John Boltan to testify, I believe that horse-trading went on regarding the setting of at least one of the trail's rules. If it sounds strange that jurists in a trial would do such a thing even on whether to alter the trial rules, remember that institutional conflicts of interest can operate like black holes in that the gravitational force is powerful and light cannot escape.

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1. Rebecca Ballhaus, “Lindsey Graham Says Bidens' Actions Need More Scrutiny,” The Wall Street Journal, Jan 24, 2020.

2. Natalie Andrews and Rebecca Ballhaus, “Impeachment Schedule for Today and Tomorrow,” The Wall Street Journal, January 24, 2020.

3. Linsey Wise, “Schiff Calls Fears of Witness Fights Delaying Trial ‘Nonsense’,” The Wall Street Journal, January 24, 2020.

4. Linsey Wise, “Demings: Trump’s Obstruction Was ‘Categorical, Indiscriminate, and Historically Unprecedented’,” The Wall Street Journal, January 24, 2020.