Showdown at the Supreme Court

Dilemma for Chief Justice John Roberts:

Either he sacrifices Article One, and goes down in history as the chief justice who destroyed a republic based on representation by the people;

Or

He sacrifices Article Three, and goes down in history as the chief justice who destroyed a republic based on the rule of law.

President Trump has made it clear that he does not intend to be a good sport if he loses the tariff case. Trump called the tariff case the Court's "most important case ever." 

Trump hints that he might simply ignore an adverse decision by the Court. That would mean that the Marbury v. Madison precedent establishing that courts determine the law would be conditional on the temperament of the executive, not a bedrock principle of a country that obeyed its own laws. 

College classmate John Shutkin thinks Trump's threat will backfire. I had asked him what he thought about Trump's announcement that he planned to attend the Supreme Court hearing, an implied threat: I'm watching you; don't disappoint me, or else. John had a distinguished career as a lawyer, serving as general counsel for large law and accounting firms.

Shutkin

Guest Post by John Shutkin

So Trump is going to sit in on the oral argument of the tariff cases  before the U.S. Supreme Court,  or at least is threatening to do so. (We do know he has a deserved reputation for being a TACO). If so, my condolences to the Court personnel who will have to deal with the logistics and security involved.  And will they even get paid for that?

In any event, the good news about Trump, if there is any, is that he lacks any subtlety in his words or actions; as the point has been made time and time again, he says the quiet parts out loud. And his obvious motive here is to put pressure on what he has called — unfortunately, with some justification — "my Supreme Court." This is like the parent who comes to his kid's class on visitors' day to make sure the kid behaves himself.

The further good news is that, as with many of Trump's moves, his obviousness backfires.  Just look at how he has so jeopardized the prosecutions/persecutions of James Comey, John Bolton, and Letitia James (and likely soon Adam Schiff) with his loud threats about going after these people, regardless of the crimes alleged, followed up by the firing of any Department of Justice personnel who do not proceed with indictments.  Absent such statements and actions, establishing selective prosecution is hugely difficult. But here, the defendant's respective counsel need simply republish these statements and actions and they have pretty much proven their case. Plus, Trump makes himself ripe for being called on to testify about these things if the prosecutions ever get to that stage.

So, too, I think, if Trump shows up for the oral argument, it will backfire. As we all know, Chief Justice Roberts cares, to a pathetic extent, about his "legacy." And, though he may want part of his legacy to be his Court's embrace of the "unitary executive" theory (code for "let Trump do whatever he wants, with impunity and immunity"), I am quite sure that he doesn't want that to be overshadowed by a legacy as "Trump's puppet."  In this regard, I would like to think that he is watching Mike Johnson's emasculation as House Leader as he kowtows to all of Trump's demands. If so, then Roberts may feel, as he did with the Affordable Care Act (ACA) case several years ago, that he has to show that his legacy transcends political partisanship, and what better way to do that than by ruling against Trump even as Trump sits glaring at him from the visitors' gallery (or whatever golden throne he is provided to sit in) and clearly trying to cower him into ruling in Trump's favor?  Put in more direct terms, though he may not show it on the bench, I'll bet that this really pisses Roberts off.

Moreover, as a matter of law, this should be a no brainer to rule against Trump, notwithstanding the unitary executive theory (which shouldn't apply to Congress, anyhow). The statutory law — not just legal precedent, which this Court seems able to casually disregard — is quite clear: Tariffs are the sole prerogative of Congress, with the exception of truly extraordinary circumstances, which clearly are not present here.  

So what do I predict?  Even given that Justices Alito and Thomas are already bought and paid for by Trump and the MAGAs, I think a clear majority, and maybe even 7-2, will rule against the tariffs.  And Roberts will feel that his perceived legacy for judicial independence has been preserved and, indeed, enhanced.

But what do I know? I predicted that Trump's political career was DOA after January 6th. In any event, for better or worse, since we are talking about a judicial ruling (even one likely to have any number of separate opinions), we will all learn how this turns out.  

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