PUT UP OR SHUT UP TIME FOR THE SUPREMES

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The Supreme Court of the United States has no Army, and, has no way physically to enforce its decisions. Nevertheless, the Founders expected the decrees of Article III courts to be obeyed, and with few exceptions, they have been. From the President on down, litigants comply because the public's respect for the court requires compliance. But the Court is now possibly on the verge of self-diminishing that respect, and thereby destroying its value to our Constitutional system.

In his 2019 year-end report on the federal judiciary, Chief Justice John Roberts touted the value of the court system of which he is the titular head. He contrasted the courts with social media, noting that while the latter can today spread rumor and false information on a grand scale, the judiciary does the opposite:

"Judges," he wrote, "render their opinions through written decisions that explain their reasoning and [thereby] advance public understanding of the law.

...

Today,  federal courts post their opinions on line, giving the public instant access to the reasoning behind the judgments that affect their lives."

Search the Federalist Papers or the Constitution for the phrase "judicial chutzpah," you will come up short. But what else are we to make of a Chief Justice who trumpets the transparency of the judicial system, but then hides the rationale of decisions that are key to our working democracy?

Earlier this month the Supreme Court granted review of three cases seeking tax and other information concerning President Trump's tax and other financial information relating exclusively to pre-inaugural conduct. Legal scholars had predicted the denial of review because there was neither a split in the circuits, nor an identifiable Constitutional issue. But the Court, via secret vote of four or more justices, nevertheless accepted review, and by secret vote of five or more justices, stayed enforcement of the subpoenas that had been ordered by the Circuit Courts. 

Who are the justices that voted to take up the appeal in this highly political dispute? 

Where are "the written decisions that explain their reasoning and thereby advance public understanding of the law?"

Where can we find the "on line opinions" that give us "instant access to the reasoning behind" each justice's decision?

And instead of scheduling immediate argument, the Supremes set the case down for argument three months hence -- all to the advantage of the President. Who decided that, and why?

The threat to the legitimacy of this Court has now been enhanced by recent events:

A key element of the House decision to impeach the President was his alleged abuse of power in ordering the withholding of congressionally mandated funds bound for Ukraine. Among the handful of the automaton Republican defenses of the President, was the legally absurd and factually erroneous argument that it was all "hearsay" because there was no direct evidence that it was the President who ordered a hold on the transmission of the $400 million to Ukraine.

The press has consistently reported that numerous high White House officials, including Pompeo, Esper and Bolton, had directly confronted Trump about the financial hold, and that Trump personally insisted on maintaining it. But Trump insisted that those witnesses ignore House subpoenas, and to their ultimate disgrace the trio complied with their boss's instructions.

Now it has been reported that there are emails evidencing a "clear direction from POTUS to withhold the money," but those documents have been suppressed by the White House.

But bad facts are corrosive and have a way of leaking out of the most secure containers. When the NY Times filed a FOIA request for those pertinent documents, a District Judge ordered managed compliance. But the White House has refused to obey the court order to give even redacted documents to the Times.

Surprise, surprise, the White House refusal was based on his claimed executive privilege to protect "the frank and candid exchange of views" among the president and his advisers.

Sound familiar? This is precisely the claim President Richard Nixon asserted before the Supreme Court to support  his refusal to turn over a subpoenaed tape. Nixon maintained he had an executive privilege to withhold the tape because it disclosed a frank and candid exchange of views with his advisers. (The subject in that case was also about money: not holding it up to protect the President, but protecting the President by raising "hush money" for the Watergate burglars.)

Different facts, identical legal principle.

In Nixon, the Court took the case immediately. It literally skipped over the Circuit Court, scheduled prompt argument, and within two and a half months after the District Court order, unanimously rejected the Presidents obstruction, declaring with ringing certainty the President was not above the law -- a proposition this President rejects. Nixon resigned 16 days later.

Your move, Mr. Chief Justice.
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