"Just hours after President Trump called for the impeachment of a judge who sought to pause the removal of more than 200 migrants to El Salvador, Chief Justice John G. Roberts Jr. issued a rare public statement."

"'For more than two centuries,' the chief justice said, 'it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.' Mr. Trump had called the judge, James E. Boasberg, a 'Radical Left Lunatic' in a social media post and said he should be impeached."

Writes Adam Liptak, at the NYT.

Liptak was reminded of something the Chief said in 2018, "after Mr. Trump called a judge who had ruled against his administration’s asylum policy 'an Obama judge'": "We do not have Obama judges or Trump judges, Bush judges or Clinton judges.... What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."

Of course, that doesn't stop the NYT from telling us the name of the President who appointed the federal judges whose names arise in the news.

We're told law professors are saying we're in a "constitutional crisis," but at what point would they switch to the term "constitutional moment."

One could avoid either term. Even though both terms include the word "constitutional," neither term appears in the Constitution, and I cannot imagine how a real case could hinge on the perception that we are in a "constitutional crisis" or a "constitutional moment." 

But I'm thinking about these 2 terms together because I just listened to today's NYT "Daily" podcast: "A Constitutional Crisis." The phrase was used 23 times, as if we could be convinced by repetition. But convinced of what? 

Michael Barbaro: The phrase du jour, Adam, right now, in Washington, is "Constitutional Crisis." And we come to you as our resident scholar of the law and the courts to understand what A Constitutional Crisis actually is and how you know when you are in the middle of one....

Adam Liptak: I've been talking to a lot of law professors and what emerges from those conversations is that there's no fixed, agreed-upon definition of A Constitutional Crisis. It has characteristics, notably, when one of the three branches tries to get out of its lane, asserts too much power. It often involves a president flouting statutes, flouting the constitution, flouting judicial orders. And it can be a single instance, but it's more typically cumulative. But it's not a binary thing, it's not a switch.

Liptak's been "talking to a lot of law professors," but apparently not to Alan Dershowitz. I highly recommend his "Trump versus the courts: who will win? My legal analysis" (from February 10th):

Alan Dershowitz: I want to be very clear the New York Times had a front page story major story.... All the law professors in the world the entire academy,  all the law professors think there's a horrible constitutional crisis going on. Of course, they interviewed 3 or 4 left-wing anti-Trump law professors. They didn't introduce anybody who would have a neutral view of the Constitution, and they didn't give their readers an honest assessment of the issue. There is no constitutional crisis! Take it from me! I've been study studying the Constitution for close to 70 years now. I know a thing about the Constitution. The United States has a system of checks and balances. That system is designed to prevent constitutional crisis. The Democrats are crying wolf. Schumer screaming out there like a like a mad person about about the Constitutional crisis. People talking about going to the streets and war. No no no no.....

The NYT article he was talking about, published February 10th, was written by Adam Liptak — "Trump’s Actions Have Created a Constitutional Crisis, Scholars Say."

"Birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens..."

"... are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be.”

Said 5th Circuit Judge James C.  Ho, quoted in "Is Trump’s Plan to End Birthright Citizenship ‘Dred Scott II’?/The 14th Amendment overturned the 1857 decision that denied citizenship to Black people. Scholars say President Trump’s proposal betrays that history" by Adam Liptak (NYT).

The 14th amendment language, written in the context of acknowledging that the freed slaves are citizens, is "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

The textualist debate focuses on "subject to the jurisdiction thereof." What did that mean to exclude?

“It excludes those persons who, for some reason, are immune from, and thus not required to obey, U.S. law,” [Ho] wrote. “Most notably, foreign diplomats and enemy soldiers — as agents of a foreign sovereign — are not subject to U.S. law, notwithstanding their presence within U.S. territory.” 

As you can tell from the headline, Liptak uses the importance of the citizenship of the freed slaves as a reason to read the phrase in the spirit of inclusiveness. Apparently, the Trump administration will group those entering the country illegally with enemy soldiers. It's an "invasion." We'll see the legal and political effects of this debate about what the Constitution means and what people wish it would mean.

"The Supreme Court’s rejection... of President-elect Donald J. Trump’s request to be spared from being sentenced... was just a few lines long, and it made modest and practical points...."

Writes Adam Liptak, in "A Rebuke to Trump Provides a Telling Portrait of a Divided Supreme Court/Two Republican appointees, Chief Justice Roberts and Justice Barrett, joined the court’s three liberals in ordering the president-elect to face sentencing on Friday" (NYT).

If the votes of the three liberal justices were predictable, those of the two conservative members of the court who voted with them on Thursday — Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett — were more surprising.

The chief justice was the author of not only the immunity decision but also of majority opinions in two other victories for Mr. Trump last term, one casting doubt on some of the federal charges against him and the other allowing him to seek another term despite
a constitutional provision barring insurrectionists from holding office.

His vote on Thursday was of a piece with the old Chief Justice Roberts.... 

Mr. Trump, for his part, has been a longtime critic of the chief justice. After the Affordable Care Act ruling, Mr. Trump wrote on Twitter that “I guess @JusticeRoberts wanted to be a part of Georgetown society more than anyone knew,” citing a fake handle. During his first presidential campaign, Mr. Trump called the chief justice “an absolute disaster.”...

“I’m not happy with the Supreme Court,” he said on Jan. 6, 2021, during his speech near the White House. “They love to rule against me.”...

And Trump loves to win. He fights for every win — fight, fight, fight — even when the arguments are weak. But he's better off losing some of the time. It shows that the Supreme Court acts independently of him and undercuts those who'd like to say the Court is in his pocket. So this is one of his losses. He can handle losses. He's quite good at doing that. It leveraged his re-election.

"There is a jarring parallel between the D.C. Circuit's near-plenary deference to national security officials calling for social-media censorship..."

 "... and the recent, well-documented history of federal officials' extensive involvement in social-media censorship efforts directed at the speech of tens of millions Americans. This recent history sheds new light on the [TikTok] Act's stark restriction — a restriction which impacts the free-speech interests of over 170 million Americans.... [T]here are compelling reasons to stay the Act's deadline and allow President Trump to seek a negotiated resolution once in office...."

From Donald Trump's amicus brief in TikTok v. Garland. The brief, filed with the Supreme Court yesterday, supports neither party.

The deadline imposed by the act is one day before inauguration day, and that fits into an argument that the Congress has encroached on executive power.

Here's the NYT article on the subject, by Adam Liptak: "Trump Urges Supreme Court to Pause TikTok Ban/The president-elect took no position on the app’s First Amendment challenge to the law, which sets a Jan. 19 deadline to sell or close the popular platform." Excerpt:

Adopting a distinctive tone at odds with the sober and measured arguments more typical in Supreme Court advocacy, the brief instead touted Mr. Trump’s expertise.

“President Trump alone possesses the consummate deal-making expertise, the electoral mandate and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the government — concerns which President Trump himself has acknowledged,” the brief said.

The brief doesn't merely tout Trump's expertise, it stresses the constitutional role of the President — all Presidents — in matters of foreign affairs. 

ADDED: This is a helpful summary by Adam Feldman: "The Universe of TikTok v. Garland in a Nutshell/Everything you want to know about the case boiled down into a few pages" (Substack).

More briefs here, including TikTok's brief, here. I'm especially interested in "Legislators Repeatedly Expressed Disagreement With The Content On TikTok."

"The Supreme Court sided on Friday with a member of the mob that stormed the Capitol on Jan. 6, 2021, saying that prosecutors had overstepped in using an obstruction law to charge him...."

"Lower courts will now apply that strict standard, and it will presumably lead them to dismiss charges against many defendants. The most prominent defendant charged with obstruction is former President Donald J. Trump as part of the federal case accusing him of plotting to subvert the 2020 election...."

Writes Adam Liptak, in "Live Updates: Supreme Court Rules for Member of Jan 6. Mob in Obstruction Case/The decision concerned the scope of a 2002 law enacted in the wake of the collapse of Enron to address accounting fraud and the destruction of evidence" (NYT).

At issue was part of the Sarbanes-Oxley Act of 2002, which was enacted after the collapse of the energy giant Enron and contains a broad catchall provision that makes it a crime to corruptly obstruct, influence or impede any official proceeding. Most Jan. 6 defendants have not been charged under the law, which prosecutors have reserved for the most serious cases, and those who have been charged under it face other counts, as well....

"Mr. Trump’s musings on his planned prosecutions serve an immediate political purpose, highlighting his argument that his conviction in New York..."

"... was the product of an effort by Democrats to keep him from being elected again and providing the red meat of prospective retribution to his base. But they also have the effect, partly incidental and partly calculated, of undermining faith in the integrity of the criminal justice system, a development that could have profound effects in a nation where the rule of law has been foundational. Mr. Trump and his supporters have argued that the system is already politicized, pointing to the four criminal prosecutions against him as irrefutable evidence — an assertion rejected by those who say that no one, including a former president or leading presidential candidate, is above the law.... The president can certainly instruct his attorney general to investigate given individuals. In his 1960 presidential campaign, for instance, John F. Kennedy pledged to target Jimmy Hoffa, the labor leader.... "

Writes Adam Liptak, in "Trump’s Vows to Prosecute Rivals Put Rule of Law on the Ballot/Donald Trump’s promise to seek retribution challenges long-established norms. The election could hinge in part on what kind of justice system the country believes it has now and wants in the future" (NYT).

I think Trump's campaign rhetoric is mostly designed to force his adversaries to proclaim principles that support his own arguments. Liptak acknowledges that as he contends that what Trump is threatening to do to his political opponents is different from what they are doing to him. Trump's political enemies will appreciate the asserted difference. His supporters won't. And what is it? The most obvious difference is that Trump's opponents are currently deeply engaged in prosecuting him, but Trump did not prosecute his enemies in his first administration and he's only referring to the potential to do so the next time around. He's issuing a credible threat in a game of tit-for-tat that he did not start. Won't we need to see what charges his next administration brings (if there is to be a next administration)? These might be solid charges that rest on the proposition that no one is above the law... as Trump's opponents like to say about the charges brought against him.

Liptak quotes something Justice Alito said in the oral arguments in the case about presidential immunity:

"The Supreme Court will hear arguments [today] in a case that could eliminate some of the federal charges against former President Donald J. Trump..."

"... in the case accusing him of plotting to subvert the 2020 election and could disrupt the prosecutions of hundreds of rioters involved in the Capitol attack. The question the justices will consider is whether a provision of the Sarbanes-Oxley Act, enacted in the wake of the collapse of the energy giant Enron, covers the conduct of a former police officer, Joseph W. Fischer, who participated in the Capitol assault, on Jan. 6, 2021. The law figures in two of the federal charges against Mr. Trump in his election subversion case, and more than 350 people who stormed the Capitol have been prosecuted under it.... The law, signed in 2002, was prompted by accounting fraud and the destruction of documents, but the provision is written in broad terms. Still, in an earlier case involving a different provision of the law, the Supreme Court said it should be tethered to its original purpose...."

Writes Adam Liptak, in the NYT.

A text sent by Fischer: "they should storm the capital and drag all the democrates into the street and have a mob trial."

Listen to the oral argument live, here, at 10 EDT.

Bully.

I'm reading "White House’s Efforts to Combat Misinformation Face Supreme Court Test/The justices must distinguish between persuading social media sites to take down posts, which is permitted, and coercing them, which violates the First Amendment."

This is Adam Liptak's piece in the NYT about the case that's up for oral argument in the Supreme Court.

[A 5th Circuit panel] said the [Biden administration] officials had become excessively entangled with the platforms or used threats to spur them to act.... [The administration argues] that the government was entitled to express its views and to try to persuade others to take action.

“A central dimension of presidential power is the use of the office’s bully pulpit to seek to persuade Americans — and American companies — to act in ways that the president believes would advance the public interest,” Solicitor General Elizabeth B. Prelogar wrote.

In response, lawyers for the states wrote that the administration had violated the First Amendment. “The bully pulpit,” they wrote, “is not a pulpit to bully.”

As we await today's argument, let's take a moment to consider what the "bully" in "bully pulpit" means. In 1909, President Theodore Roosevelt exclaimed: "I suppose my critics will call that preaching, but I have got such a bully pulpit!" First, clearly, he was using "bully" — as he often did — to mean very good or excellent. And he used the word "pulpit," because he knew he was preaching, that is, proclaiming righteous opinions in public.

Pressuring people behind the scenes is not preaching. You're not in a metaphorical pulpit. You're in the metaphorical backroom. And you're not proclaiming righteous opinions, you're exerting power, intimidating people. It's not "bully" in the sense of excellent.

The OED entry for "bully pulpit" is clear that "bully pulpit" originates with Theodore Roosevelt. It explained "his personal view of the presidency." It is — as the OED puts it — "A public office or position of authority that provides its occupant with the opportunity to speak out and be listened to on any issue." 

We're also told: "In later use sometimes understood as showing bully n.1 II.3a." That meaning of "bully" is:

Originally: a man given to or characterized by riotous, thuggish, and threatening behaviour; one who behaves in a blustering, swaggering, and aggressive manner. Now: a person who habitually seeks to harm, coerce, or intimidate those whom they perceive as vulnerable; a person who engages in bullying.

If "bully pulpit" is sometimes understood that way, it's risky to argue "A central dimension of presidential power is the use of the office’s bully pulpit...."

The riposte was predictable: "The bully pulpit is not a pulpit to bully."

I want to add that what is said behind the scenes is not from the pulpit at all. A pulpit is an elevated and conspicuous platform. One thing about social media posts is that they are out there, in public, and perfectly conspicuous. If the President (or the shadowy people behind him) want to use the"central dimension of presidential power" that is the "bully pulpit," let them step up onto a conspicuous platform and proclaim opinions they intend us to find righteous.

In this case, the opinion that was conveyed behind the scenes was that social media platforms ought to take down posts on various political topics — coronavirus vaccines, claims of election fraud, and Hunter Biden’s laptop — that people wanted to debate. If it's pulpit-worthy, express that opinion outright and clearly to all of us. Don't go behind our back and intimidate the social media giants upon whom we, the little people, depend to slightly amplify our tiny voices.

"Chief Justice John G. Roberts Jr. asked a series of questions reflecting what seemed to be an emerging consensus..."

"... that the 14th Amendment was not meant to permit states to determine whether a candidate was an ineligible insurrectionist. 'The whole point of the 14th Amendment was to restrict state power, right?' he asked, adding that the challengers’ contrary argument was 'a position that is at war with the whole thrust of the 14th Amendment.' Chief Justice Roberts noted that the challengers’ position would have empowered the former Confederate states to determine whether candidates were disqualified from holding federal office. The 14th Amendment was adopted to constrain states’ rights and empower the federal government, the chief justice said, and it is 'the last place you’d look for authorization for the states, including Confederate states, to enforce the presidential election process.'"

Writes Adam Liptak, about this morning's oral argument, pointing to a passage that I was going to wait until I had the transcript to write about. 

"Judging from questions in two hard-fought arguments that lasted a total of more than three and a half hours, the fate of a foundational doctrine of administrative law..."

"... called Chevron deference appeared to be in peril.... Discarding it could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs. It would also transfer power from agencies to Congress and the courts...."

Writes Adam Liptak in "Conservative Justices Appear Skeptical of Agencies’ Regulatory Power/Discarding a seminal precedent could threaten regulations in countless areas, including the environment, health care, consumer safety, nuclear energy and government benefit programs" (NYT).

"The Supreme Court declined on Friday to decide for now whether former President Donald J. Trump is immune from prosecution on charges of plotting to overturn the 2020 election."

"The case will move forward in an appeals court and most likely return to the Supreme Court in the coming months. The decision to defer consideration of a central issue in the case was a major practical victory for Mr. Trump, whose lawyers have consistently sought to delay criminal cases against him around the country.... Jack Smith, the special counsel prosecuting Mr. Trump, has asked the justices to move with extraordinary speed, bypassing a federal appeals court."

Adam Liptak reports at the NYT.

No justice dissented.

Smith had argued: "The public importance of the issues, the imminence of the scheduled trial date and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this court’s expedited review at this time."

Trump’s lawyers argued: "Importance does not automatically necessitate speed. If anything, the opposite is usually true. Novel, complex, sensitive and historic issues — such as the existence of presidential immunity from criminal prosecution for official acts — call for more careful deliberation, not less."

"The Supreme Court seemed ready on Tuesday to rule that the government may disarm people under domestic violence orders...."

"Justice Neil M. Gorsuch... asked a series of questions sketching out a minimalist ruling upholding the law, suggesting that the case before the court was an easy one. 'We actually have a finding of a credible threat,' he said... ... Justices Barrett and Brett M. Kavanaugh — made similar comments.... "

Writes Adam Liptak, in "Supreme Court Seems Likely to Uphold Law Disarming Domestic Abusers/The potential sweep of a decision could extend far beyond domestic abuse by clarifying the scope of the court’s ruling last year that vastly expanded gun rights" (NYT).

"Disentangling race and politics in a situation like this is very, very difficult.... [It would be] breaking new ground in our voting rights jurisprudence."

Said Chief Justice John Roberts.

Quoted in "Justices Poised to Restore Voting Map Ruled a Racial Gerrymander/The case concerned a constitutional puzzle: how to distinguish the roles of race and partisanship in drawing voting maps when Black voters overwhelmingly favor Democrats" (NYT)("The difference matters because the Supreme Court has said that only racial gerrymandering may be challenged in federal court under the Constitution").

"Although if I happen to change my mind, and the New York Times doesn't cover it, I'm going to feel pretty insulted."

Says Orin Kerr:

"The Supreme Court, in a surprise decision, ruled that Alabama had diluted the power of Black voters by drawing a congressional voting map..."

"... with a single district in which they made up a majority. Chief Justice John G. Roberts Jr. wrote the majority opinion in the 5-to-4 ruling. He was joined by Justice Brett M. Kavanaugh and the court’s three liberal members, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Voting rights advocates had feared the decision would undermine the Voting Rights Act, which instead appeared to emerge unscathed. The chief justice wrote that there were legitimate concerns that the law 'may impermissibly elevate race in the allocation of political power within the states.' He added: 'Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.'"

 Writes Adam Liptak at the NYT.

"Members of the Supreme Court’s conservative majority seemed deeply skeptical on Tuesday of the legality of the Biden administration’s plan to wipe out more than $400 billion in student debt because of the coronavirus pandemic."

Writes Adam Liptak (NYT).

During the first of two arguments on the program, Chief Justice John G. Roberts Jr. indicated that the administration had violated separation-of powers principles by acting without sufficiently explicit congressional authorization to undertake one of the most ambitious and expensive executive actions in the nation’s history. 

"[Lorie] Smith... sat near a plaque that echoed a Bible verse: 'I am God’s masterpiece.' She said she was happy to create graphics and websites..."

"... for anyone, including L.G.B.T.Q. people. But her Christian faith, she said, did not allow her to create messages celebrating same-sex marriages. 'When I chose to start my own business as an artist to create custom expression,' she said, 'I did not surrender my First Amendment rights.' Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate. 'Once you open up your doors to the public, you have to serve everybody,' he said. 'You can’t turn people away based on who they are.'"

Writes Adam Liptak in "A New Clash Between Faith and Gay Rights Arrives at a Changed Supreme Court A Colorado graphic designer says she has a First Amendment right to refuse to create websites for same-sex weddings despite a state anti-discrimination law." (NYT).

The oral argument is today.

If you're trying to remember why this is still a live issue after the wedding-cake case:

"By the end of five hours of vigorous and sometimes testy arguments, a majority of the justices appeared ready to reconsider decades of precedents and to rule that the programs were unlawful."

 Writes Adam Liptack in the NYT.

ADDED: You can read the transcripts for the 2 cases here (University of North Carolina) and here (Harvard).

AND: From Robert Barnes and Ann E. Marimow in The Washington Post: "Conservative Supreme Court justices on Monday seemed open to ending decades of precedent allowing race-conscious admission decisions at colleges and universities, repeatedly expressing doubt that the institutions would ever concede an 'endpoint' in their use of race to build diverse student bodies." 

"This brief provides a rare and important opportunity for federal Supreme Court justices to receive direct input from their peers who sit on state supreme courts."

"State justices have a central stake in this case because, in our federalist system, they typically have the final say over the meaning of state law, and here they can directly explain to their federal counterparts why their traditional state role is worthy of protection."

Said lawprof Evan Caminker, quoted by Adam Liptak in "Top State Judges Make a Rare Plea in a Momentous Supreme Court Election Case/In a surprising filing, state chief justices opposed an argument pressed by Republicans — that state legislatures may set federal election rules unconstrained by state constitutions" (NYT).

The state judges are fighting for their own power against the "independent state legislature theory." According to the theory, the federal constitutional text — “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof” — means that state legislatures have the final say about state law, with no interpretive role for the state judges.

Liptak writes: