Like no doubt many of you, I am horrified by the Supreme Court’s decision in the presidential immunity case but have little to offer beyond what you’re reading and seeing elsewhere. Nor did I feel reassured when President Biden came out and read a five-minute speech. Here’s part of what the historian Heather Cox Richardson had to say in a truly chilling essay for her newsletter, “Letters from an American”:
This is a profound change to our fundamental law — an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law.
It seems to me that if we’re going to save the country, it’s absolutely essential that a Democrat be elected to the White House this fall, whether it’s Biden or someone else, and that the Democrats take both branches of Congress as well. That’s a tall, unlikely order. And I’m sorry to have to be so partisan, but Bob Dole, John McCain and Mitt Romney are not walking through that door.
After that, we can talk about what needs to be done about the court, which has long since sunk into illegitimacy thanks to the machinations of Mitch McDonnell and the corruption of Clarence Thomas and Sam Alito. I’ve seen an upsurge in commentary that the court should be expanded, but that strikes me as a fool’s game — something that could easily be gamed by both parties until we’re up to a 57-member SCOTUS. Instead, I’d like to see term limits that guarantee every president will get one or two appointments plus constraints on the court’s powers, which at the moment appear to be limitless.
Nina Totenberg. Photo (cc) 2012 by the Asia Society.
It’s impossible to know what, if anything, went wrong with Nina Totenberg’s story about a mask dispute between Supreme Court Justices Sonia Sotomayor and Neil Gorsuch without also knowing the details of Totenberg’s interactions with her unnamed sources — or source.
But it has the hallmarks of a situation in which the justices, joined by Chief Justice John Roberts, jumped on a small wording problem in order to back away from a controversy they regretted. Totenberg, NPR’s veteran legal affairs reporter, was the collateral damage.
It began with a report last Tuesday morning in which Totenberg noted that, since the rise of omicron, all of the justices had been wearing masks to hearings — all, that is, except Gorsuch. Sotomayor, who has diabetes and who normally sits next to Gorsuch, had been appearing remotely from her office.
Roberts, Totenberg reported, had “in some form asked the other justices to mask up,” and only Gorsuch had failed to comply.
On Wednesday, Sotomayor and Gorsuch issued a statement saying that she did not ask him to wear a mask. NPR’s report did not say that she did. Then, the chief justice issued a statement saying he “did not request Justice Gorsuch or any other justice to wear a mask on the bench.” The NPR report said the chief justice’s ask to the justices had come “in some form.”
NPR stands by its reporting.
So what did Roberts actually say? We don’t know. NPR’s ombudsman, Kelly McBride of the Poynter Institute, wrote that Totenberg remained confident she got it right but was hazy on exactly how Roberts indicated to the other justices that he wanted them to wear masks. “If I knew exactly how he communicated this I would say it,” Totenberg told McBride. “Instead I said ‘in some form.’”
McBride’s conclusion was that Totenberg’s story was essentially accurate but that she shouldn’t have used the word “asked,” even modified by “in some form.” McBride also called for a “clarification,” but not a correction, to be appended to Totenberg’s story. Which in turn led Totenberg to tell The Daily Beast, “She [McBride] can write any goddamn thing she wants, whether or not I think it’s true. She’s not clarifying anything!”
The situation reminds me of the smackdown delivered by then-special counsel Robert Mueller in early 2019 after BuzzFeed News reported that former Trump lawyer Michael Cohen had told investigators that Donald Trump had “directed” him to lie under oath before Congress about a Trump Tower deal in Moscow. Mueller had his spokesman characterize the story as “not accurate,” and the episode was seen as a serious blunder by BuzzFeed.
Lo and behold, several months later we learned that BuzzFeed had it right all along. If I may speculate, it looked to me like Mueller took advantage of a minor exaggeration in the story in order to denounce the whole thing at a moment when it looked like Trump might shut down the entire special counsel’s investigation. BuzzFeed was thrown under the bus, and the investigation was saved.
Totenberg’s story was the culmination of an eventful few weeks for Justice Sotomayor. On Jan. 8, Washington Post “Fact Check” columnist Glenn Kessler took her to task for saying during oral arguments, “We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.” That number appeared to be 20 times higher than was actually the case. Kessler saw fit to assign her statement a “Four Pinocchios” rating, thus labeling what was almost certainly a spontaneous slip-up as a lie.
At around the same time, Politico’s “Playbook” newsletter ran a story and a photo showing a woman who was identified as Sotomayor sitting back-to at a restaurant with Democratic members of Congress. O, the hypocrisy! Except that it wasn’t Sotomayor — it was Senate Majority Leader Chuck Shumer’s wife, Iris Weinshall. “Our tipster got it wrong, but we should have double-checked,” Politico said in its correction. No kidding.
As for whether and how Chief Justice Roberts asked “in some form” that the justices mask up, we’ll probably never know precisely what transpired. But we do know this: Every justice has been wearing a mask to oral arguments except Gorsuch. And Sotomayor didn’t feel it was safe for her to attend.
Three quick items on the Supreme Court’s decision to (mostly) uphold the Affordable Care Act:
1. I was watching CNN while waiting for the ruling in the mistaken belief that the other cable nets would only be worse. I must admit, listening to Wolf Blitzer and John King trying to backtrack from their whopper made for riveting television. Will heads roll? Should they? People make mistakes, but good grief.
2. Wish I could remember who wrote this, but yesterday I read an analysis that attempted to prove Justice Anthony Kennedy would vote against the individual mandate. So far, so good. But the writer went on to argue that since it was unimaginable Chief Justice John Roberts would come out on Kennedy’s left, that was the end of Obamacare. Personally, I think Roberts looked into the abyss and saw there was no bottom.
3. I thought this was a good time to recycle what I wrote about garcinia cambogia extract for the Guardian after the ACA was approved in 2010. The law isn’t perfect, but it’s an enormous improvement over the status quo. It was — and is — a BFD.
Radar Online has posted an anonymously sourced item claiming that U.S. Supreme Court Chief Justice John Roberts is “considering” stepping down. Well, consider this: There’s no way Radar can be wrong, is there? The item goes on to say that Roberts “could announce his decision at any time.” If Roberts retires in 2021, will Radar, if it’s still around, demand a Pulitzer?
That was quick: If you follow the link now (1:41 p.m.), you’ll see that Radar has retracted the item.
