Why the Conservative Split on the Tariff Case Is So Intriguing

Friday’s 6-3 Supreme Court opinion decided that Trump’s use of tariffs was an improper exercise of power that was reserved to Congress under the Constitution. The reason for the conservative split is perhaps the most intriguing part of the decision. As always, I am not going into the weeds and much of follows is a dramatic oversimplification for purposes of clarity.

Before getting to the disagreement among the conservative justices, we need to back up. Just because six justices agree on a result, that does not mean that they agree on the reasons for their ruling. Where there is a second, separate reason for a decision, the justices using that alternate rationale will write what is called a concurring opinion. Here, the three liberal justices found a separate reason for agreeing with Chief Justice Robert’s decision. In other words, they agreed with the result but not the reasoning. This means that in this case, there were at least two distinct reasons why what President Trump did was improper.

 In many cases, Supreme Court decisions rest on differing views about how to construe the Constitution and statutes. Typically, opinions on how to apply the Constitution is what separates the conservatives from the liberals. That was not the case here.

In the tariffs case, the conservatives agreed on the standards by which to judge Trump’s actions. That would often result in them voting in a block—but not here.

The standard applied in the tariffs case is one which has often been used by the courts to give the President a significant amount of discretion and leeway. Chief Justice Roberts’ opinion said that even this broad authority has its limits. President Trump exceeded that authority by attempting to take away something given to the Legislative branch by the Constitution. The dissenting justices would put no such limitation on the president.

Dissenting Justice Kavanaugh, in one of the weakest arguments you will likely see, noted that trying to return the ill-gotten tariffs would be extremely complicated. Think about that in another context. Say that a business defrauded millions of customers. Would you let it off the hook because of the difficulty in repaying those who were defrauded?

The bottom line is that although the conservative justices have generally agreed on expanding the powers of the executive branch, in the tariffs case, three of them said enough is enough.

The brilliance of My Pillow’s Mike Lindell

In the olden days, hucksters sold snake oil by the bottle. Televangelist Jim Bakker sold it by the bucket. Give people something they desperately want to believe and you can sell them anything. After all, rubes deserve to be fleeced. Consider W.C. Fields’ famous “Never give a sucker an even break.”

Mike Lindell is not your garden variety huckster. He is brilliant. Here’s why. Many charlatans are able to drag true believers along even after promised events do not occur. Consider, for example, the apocalypse preachers who predict the end of the world and then, um, recalculate. True believers still follow.

If that scenario sounds a lot like Lindell, it should. He has been predicting dates when Trump will be reinstated all year, including my birthday (which, coincidentally, is the date the Berlin wall went up). That people continue to believe isn’t surprising. Snake oil sells.

Lindell’s brilliance is that he has taken his show to a higher level. A recent posting on his website urges visitors to “Sign the Petition!” Specifically, “Sign this petition to encourage the Supreme Court to accept the bill of complaint brought by patriotic states to save our country.” The required fields are your first name, last name and email address.

There are couple of wee problems with what is encouraged here and this is the legal stuff. First, there is no mechanism for the Supreme Court to accept a petition as he describes it. That is not how the court operates. Second, there is no “bill of complaint” filed anywhere, much less by “patriotic states,” whatever they may be. So, if a petition means nothing and there is no bill of complaint, why is he asking you to sign the petition?

Unless you’ve already signed the petition, you know why. He is assembling a sucker list who will later be urged to contribute to his cause (as he has done before). Brilliant.

One more thing. Lindell’s latest prediction is “We will have this before the Supreme Court before Thanksgiving. That's my promise to the people of this country. We're all in this together. We worked very hard on this!"

Don’t let your turkey get cold.

The My Pillow Guy Has a Bridge to Sell You

About the time you think that Mike Lindell’s comments cannot be further removed from reality, you get his most recent screed. The latest is that Donald Trump will be “reinstated” as President by the fall (previously April, then August, but who’s keeping track). He says this will happen because of a 9-0 vote from the U.S. Supreme Court that will set aside the 2020 election.

It takes a delusional approach to the judicial system to come to this conclusion. There is simply no mechanism for the Supreme Court to even hear this case, much less to decide it 9-0. Zero. Zip. Nada. As a physician once told me: “there is no miracle without a mechanism.” And here, there is no mechanism to generate the miracle he promises.

So what we have here is simply a lie. One of the first things we are taught as a child is that sometimes we lie unintentionally. These lies, once discovered, are corrected, both a matter of personal integrity and to avoid harm to others. The principle is beautifully encapsulated in the tenth step of Alcoholics Anonymous. “Continued to take personal inventory and when we were wrong promptly admitted it.”

Whether due to ignorance or pathology, some people cannot admit to a lie. Instead, they double down or make even more egregious claims. When a personal who hawks pillows for a living does this, rational people will simply tune him out.

My main thrust here, though, is not to excoriate Lindell as much as he deserves it. Rather, it is to contrast his actions with that of lawyers who have a much higher duty of care to speak and act honestly. Many in our profession have a bad reputation, and deservedly so. We take an oath to act with utmost integrity and candor. When we violate that oath, in some cases by doubling down on lies, the public rightfully expects that lawyers should police ourselves and punish those who violate the public trust.

Legal sanctions that are being currently directed at lawyers like Rudy Guiliani, Sidney Powell and Lin Wood are not only legitimate but required in order to protect an unsuspecting and often gullible public. Most lawyers facing discipline will be contrite and apologetic. We have no use for the others.

When the Supreme Court is not impressed

There were two instances in the last week when the U.S. Supreme Court gave none too subtle indications what they thought.

The first concerned yet another California case that challenged the indoor church ban. Even after the Supreme Court had issued an injunction against the ban earlier in the month, the Ninth Circuit in a different case allowed the ban to continue. Within less than two weeks of the Ninth Circuit ruling, the Supreme Court overturned them. The slap down on the Ninth Circuit decision made it clear that the technical distinctions between the cases were not enough to reach a different decision. As one pundit put it, these were distinctions without a difference.

As an aside, the lawyer for Santa Clara County took a head scratching approach. One day after filing their reply brief with the court, the attorneys announced that the ban would be lifted within a week. As a practice pointer, if you’re going to basically concede the issue, don’t waste the Court’s time by making them start working on reading your brief. To state the obvious: justices don’t appreciate that.

The second time in a week where the Court showed they were not impressed concerned the two remaining “release the Kraken” suits by Sidney Powell questioning the election results. Here, the Court didn’t even bother with a smackdown. The order simply said, without further explanation, that the petitions were denied.

This action by the Court is analogous to how you deal with a fly. You can either give it your attention and swat it or you can decide that it isn’t even worth bothering with it and simply wave your hand to make it go away.

Indoor Church Services, COVID, and the Supreme Court

We often look to the U.S. Supreme Court to provide legal clarity. It does not always work that way. A prime example is a recent ruling concerning the church opening restrictions in California during COVID.

The ruling is not as clear cut as some reports are making it sound. To make sense of the complexities, we need to first discuss something called a concurring opinion.

The cleanest Supreme Court cases are those where you have a decision where all justices taking a particular position agree on the rationale. So, for example, in a 5-4 case, you might find a written decision that is “joined by” four other justices. That majority opinion not only settles the case but also agrees on the reasoning. The decision then becomes binding (precedent) on the cases that follow, both in the lower courts and the Supreme Court itself.

Complications arise when a majority of the justices agree with the outcome of the case but disagree about the reasoning in the decision. These are expressed in concurring opinions. Concurring opinions take three basic forms.

A general concurrence usually involves a justice who think that some part of the reasoning for the decision needs greater explanation. This discussion may be nothing more than a tweak in the reasoning or may question one of the component parts.

A justice who “concurs in the result” agrees with the conclusion but disagrees with the reasoning used to reach the result.

Sometimes a justice will issue an opinion “concurring in part and dissenting in part.” This is the most problematic because some of the outcomes of the majority are accepted but other parts are rejected outright.

The impact of concurring opinions is more than an academic exercise. If you have a 5-4 decision where four justices in the majority agree with the reasoning but the fifth justice only agrees with the result, the final impact of the decision only applies to the present case. The failure of a majority to agree on legal reasoning means that the case can generally not be cited as conclusive authority in later matters.

With that as background, we come back to the California cases where church closing requirements due to COVID were challenged. In South Bay United Pentecostal Church v. Newsom, the church asked for an injunction against the prohibition against indoor services.

The Supreme Court ruled 6-3 to immediately enjoin the ban on indoor worship. Clear enough, right? Not so fast. After deciding that an outright ban should be stopped (so far so good), the Court next considered whether restrictions on indoor services should similarly be blocked. Here’s where the concurring opinions came into play.

Two justices (Thomas and Gorsuch) would have also immediately stopped the ban on singing and percentage caps on attendees.

Three justices (Roberts, Barrett and Kavanaugh) said that it was the CHURCH’s responsibility to show that these limitations should not apply.

Justice Alito said that the singing ban should go but that the STATE needed to provide proof to defend the percentage occupancy rule.

So, among the six justices who overturned the ban, there were three different opinions about the singing and percentage occupancy rules.

Once the decision is fully parsed, then, it is inaccurate to say that this case shows that freedom of religion trumps government regulations about COVID. The number of justices who took this precise position was … two.

Furthermore, the action of the Supreme Court was only on the request for an injunction. The case was sent back to the lower court for further evidence.

As should be apparent from the above, this discussion was not designed to be about the merits of the case or the various positions held. It was merely to show (through no small amount of oversimplification of the issues) that decisions of the Supreme Court can be quite complex animals.

The Supreme Court and tax returns. You may proceed.

The headline of the day from the U.S. Supreme Court is the New York state prosecutors may obtain ex-president Trump’s tax returns. The opinion took the form of a simple, unsigned order. Sometimes what is unsaid is as illuminating as what is said.

When the case was before the Court last year, a 7-2 decision held that presidents do not have special rights to prevent state criminal procedures and subpoenas. The court also said, however, that the defendant (Trump) retained the same rights to object to subpoenas as other individuals would. When the case went back down the first time, Trump raised some of those “normal” objections. When those objections were rejected, the case came back up to the Supreme Court.

This is a long way of saying that the Supreme Court was not interested in overturning the lower court’s decision that Trump’s “normal” objections had no merit. Therefore, the subpoenas for tax records may be enforced.

Again, as I say frequently here, the opportunity to obtain financial records does not prove anything. It is only after the information is evaluated that possible criminal charges might be brought.

Some pundits have questioned why it took so long for the Supreme Court to make what appears to be a fairly simple order. One reason is that the High Court typically tries to avoid making decisions that have immediate political overtones. That also may explain why, in other orders today, the Court finally put an end to the meritless post-election litigation.

As expected, Mr. Trump’s response to the order was vociferous, maintaining that this order will make it easier for the Democrats to continue their incessant personal attacks against him. His comments are, to use a distinctly non-legal term, garbage. Read again, what I wrote a few paragraphs earlier. All that this order does is to allow subpoenas to obtain financial records, exactly the same way they would if they were issued to you or me.

If criminal actions follow, they will be due to the evidence uncovered.

When Lawsuits Don't Change Anything

 I am still asked if the election lawsuits might still change the result of the election or if the US Supreme Court will get involved. The answer is no, especially after two election cases got resolved in Pennsylvania within the last two days.

Judge Patricia McCullough ordered Wednesday that the state must halt certification "to the extent that there remains any further action to perfect the certification." That order lasted exactly four days. The seven-member Pennsylvania Supreme court unanimously removed the injunction. But they went a step further and dismissed the entire complaint with prejudice. This slap down was the equivalent of saying GTFO and don’t come back. That was the state court.

In the Federal Court, the 3rd Circuit Court of Appeals eviscerated the Trump campaign appeal. They also went beyond the only question raised on appeal by restructuring some truly incoherent arguments and dismantling them as well.

One also shouldn’t be concerned about Sidney Powell’s new cases filed in Michigan and Georgia. Not only are they incoherent and riddled with typographical errors (which courts despise), they were filed way, way too late to be given serious consideration. It’s really hard to explain just how bad these lawsuits are. [Written November 29, 2020]