By Alan J. Steinberg

I have been criticized for an excessive inclination to engage in political punditry. As to that species of punditry involving the prediction of elections, I plead guilty. Whether my predictions are accurate or inaccurate, my analysis is always well-grounded and reasoned.

Yet political punditry can be hazardous due to unanticipated events and trends. And when you combine political punditry with predictions about judicial proceedings, you are on potentially very shaky ground.

Nevertheless, I remain intrepid and will make some observations about the likelihood of outcomes in cases involving the Supreme Court of the United States (SCOTUS) and Donald Trump.

At present, there are three cases in the foreseeable future involving Trump and SCOTUS: 1) Trump’s petition for total presidential immunity in the federal election interference case pending in the District of Columbia Federal District Court before Judge Tanya Chutkan ( hereinafter, the “Tanya Chutkan case;”) 2) Trump’s appeal to SCOTUS of the disqualifications of him as a presidential candidate by the governments of Colorado and Maine; and 3) Trump’s appeal of any criminal convictions adjudged by the jury in the Tanya Chutkan case.

I will depart from my standard practice and give my predictions first, followed by my analysis:

1) The District of Columbia Federal Circuit Court of Appeals will deny Trump’s petition for total presidential immunity, and SCOTUS will affirm this denial if the justices grant a writ of certiorari (hereinafter, “granting cert.”). Before SCOTUS will hear the appeal, four justices must agree to grant cert.

2) SCOTUS will reverse Trump’s disqualification in Colorado and Maine and affirm Trump’s right to remain on the ballot in these states as a presidential candidate.

3) In the absence of any flagrant abuse of discretion by Judge Chutkan herself, SCOTUS will uphold any convictions of Trump in the Tanya Chutkan case.

Now for my reasoning, which must first begin with an analysis of the dramatis personae, the nine members of SCOTUS.

The most important player in this drama is Chief Justice John Roberts. He can best be characterized as primarily a SCOTUS institutionalist, but secondarily, a conservative constitutionalist.

As an institutionalist, Roberts is most concerned in his decision making with the durability of the law and the maintenance of respect for the Court. His jurisprudential view as a constitutional conservative emphasizes limiting his decision making to an interpretive role and avoiding legislating from the bench.

Conservative constitutionalists follow two alternative philosophies: 1) textualism and 2) originalism. Textualism focuses on the plain language of the legal document, statute, or constitutional provision. By contrast, originalism is the belief that a text should be interpreted in a way consistent with how it would have been understood or was intended to be understood at the time it was enacted.

In a nutshell, textualism emphasizes adherence to text; originalism emphasizes adherence to history. Roberts is an originalist, as am I. In the case of Roberts, as we shall see below, the mandates of institutionalism will always take priority over the principles of constitutional conservatism.

Regarding the Associate Justices, there is an interesting symmetry between the three Democratic-appointed justices, Brown-Jackson, Kagan, and Sotomayor, and three of the four Republican-appointed. Justices Alito, Thomas, and Gorsuch. The three Democrat justices disdain the pure interpretive function, focusing instead on outcomes they claim are unassailable because they embody equity and social justice. While the three Republican justices claim to emphasize the interpretative function, they also, in their decision-making function, tend to focus on outcomes, in their case, the upholding of conservative social values. Examples of this are their decisions on abortion and guns.

The other two Republican-appointed Associate Justices, Brett Kavanaugh, and Amy Coney Barrett, are more challenging to categorize.

Kavanaugh is known for an unexpectedly high degree of independence. Barrett has been very conservative and ideologically inclined on issues of guns, abortion, and prisoners.

Yet another quality distinguished Barrett as a judge on the Seventh Circuit Court of Appeals: A high degree of collegiality.

This signifies that both Kavanaugh and Barrett will be receptive to the arguments and pleas of Roberts for results compatible with the institutionalist needs of the Supreme Court. As an institutionalist, Roberts will be able to forge coalitions with the three Democrats, Kavanaugh, and Barrett, should the needs exist.

Considering all the above, I can now explain how my analysis supports my predictions.

This past week was a disaster for Trump on the immunity issue. His lawyers argued before the D.C. US Circuit Court of Appeals that he would be even immune from prosecution for the murder of a political enemy unless he were first Congressionally impeached and convicted.

This egregiously inane and repulsive argument is certain to be rejected by both the DC Circuit Court of Appeals and SCOTUS upon appeal. In fact, it would not surprise me if Trump failed to get the necessary four justices to grant cert, thereby enabling SCOTUS to avoid considering the immunity issue.

The disqualification issue is interesting because it will be a classic case of Roberts prioritizing his Institutionalist role over his conservative constitutionalist philosophy. Two of the leading national scholars on the 14th Amendment, former Fourth Circuit Court of Appeals Judge J.Michael Luttig and the renowned leading historian on Reconstruction, Eric Foner, have both stated that under the original understanding of Section 3 of the 14th Amendment, Trump would and should be disqualified from holding federal office.

Yet, although affirmation of the disqualification of Trump as a presidential candidate would be well within the evidence and the law, I think that Roberts, as an institutionalist, will shy away from this course. He is concerned that such a disqualification would be viewed by many liberals and conservatives alike as a massive federal overreach interfering with the citizen’s right to vote. Such a perception would be destructive of the legitimacy of SCOTUS. To avoid this, Roberts would vote to reverse the disqualifications and obtain concurrence from all the other members of the court.

The final issue is whether Roberts would affirm any conviction of Trump in the Tanya Chutkan court case. I believe that Roberts most certainly would, in the absence of any abuse of discretion of Judge Chutkan and if there would be sufficient evidence to sustain such a verdict beyond a reasonable doubt. Again, Roberts would reach out to Kavanaugh, Barrett, and the three Democrats to obtain at least a 6-3 vote to affirm conviction.

This is where Roberts’ roles as institutionalist and Constitutional Conservative merge. The Trump cases may well afford Roberts the opportunity for a historic legacy in both roles.

Alan J. Steinberg of Highland Park, New Jersey served as regional administrator of Region 2 USEPA during the administration of former President George W. Bush and as executive director of the New Jersey Meadowlands Commission. He is a graduate of Northwestern University and the University of Wisconsin Law School. Steinberg is a native of Pittsburgh; hence, the black and gold colors in his Substack emblem.

First published on Alan’s Substack site.

Categories: Jandoli Institute, Politics