On Trump’s Eligibility to Run for President: Who Decides?

The 14^th Amendment of the U.S. Constitution “bans anyone who took an oath to uphold the Constitution but who subsequently ‘engaged in insurrection or rebellion against,’ or gave ‘aid or comfort of the enemies’ of the Constitution from seeking any federal or state office.”[1] Did Donald Trump, when he was President of the United States, engage in insurrection? Furthermore, who decides this and bars him from office?

The full essay is at "Deciding Trump's Eligibility." 

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[1] S.V. Date, “Trump May Need Supreme Court To Say His Coup Attempt Does Not Violate Constitution,” The Huffington Post, September 2, 2023.

On the Role of Partisan Political Ideology in the U.S. Supreme Court

Observing a pattern of sustained ideological proclivities in the decisions of justices of the U.S. Supreme Court, The New York Times editorialized in 2011 that the “court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians.”[1] One could just as easily say behave like human beings, for juridical interpretation itself contains ample space for an interpreter’s ideology to have a role, especially given human nature that is apt to exploit such leeway. In other words, ideology may be part and parcel of the essential function of a constitutional court, given the nature of juridical interpretation. 

The full essay is at "Partisan Ideology in the U.S. Supreme Court."

1. The New York Times, “Ethics, Politics and the Law,” Editorial, July 1, 2011, p. A22.

The Case for a Presiding President in Russia

On December 31, 2010, a Russian judge sentenced Mikhail Khodorkovsky, the Russian tycoon who had been imprisoned in 2003 after defying Vladimir Putin, to an additional six years in prison. According to The New York Times, "It was a politically tinged decision that undermined President Dmitri Medvodev."[1] Leonid Goman of the Right Cause Party in Russia agreed. "It was obviously a political, not a judicial, decision." He went on to say that in general terms, "corruption is endemic, government power is often abused and senior politicians are rarely, if ever, held accountable for misdeeds."[2]  Clearly, Prime Minister Putin was still very much in control in Russia.  His message was that wealthy businessmen should not interfere in Russian politics. What a contrast to American politics, especially after the U.S. Supreme Court's Citizens United case!  Khodorkovsky was at one time the richest person in Russia, having been one of the oligarchs who bought government assets at bargain prices after the fall of the USSR, but he financed opposition parties in a political system that was anything but democratic.

Analysis is at "The Case for a Presiding President in Russia."

1. Clifford Levy, "Russia Extends Prison Sentence of Tycoon 6 Years,” The New York Times, December 31, 2010, p. A1.
2. Ibid. 

A Gay Judge on California's Anti-Marriage Proposition in 2010: A Judicial Conflict of Interest?

In 2010, Chief Federal District Judge Vaughn Walker issued a ruling that declared Proposition 8 (against gay marriage) an unconstitutional violation of gay Californians’ civil rights. After retiring in February of the next year, the judge revealed that he was in a 10-year-old relationship with a same-sex partner. The question is whether a reasonable belief that the judge would stand to benefit from the ruling means that there was a personal conflict of interest sufficient to have the judge’s ruling vacated. Amid the emotions swirling around issues such as gay marriage that involve the uneasy mix of personal matters and public scrutiny, an urgent need exists for ethicists and jurispruds to isolate the pernicious problems inherent in the conflict of interest phenomenon so we all can have faith that such issues are decided impartially in substance as well as appearance.

The full essay is at "Are Judges above Personal Conflicts of Interest?"

Judicial Ethics: Friendship and Philanthropy

Harlan Crow was a Dallas real estate magnate and a major contributor to conservative causes. He did many favors for his friend, Clarence Thomas, “helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for [Virginia] Thomas to start a Tea Party-related group.” The two friends spent time together at “gatherings of prominent Republicans and businesspeople at Crow’s Adirondacks estate and his camp in East Texas.” Crow also “stepped in at Thomas’ urging” to finance the multimillion-dollar purchase and restoration of the cannery that had employed the justice’s mother. Crow’s restoration “featured a museum about the culture and history of Pin Point that has become a pet project of Justice Thomas’s. . . . While the nonprofit Pin Point museum is not intended to honor Justice Thomas, people involved in the project said his role in the community’s history would inevitably be part of it, and he participated in a documentary film that is to accompany the exhibits.”

News “of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges. Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code.”

The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them. . . . (T)he restriction on fund-raising is primarily meant to deter judges from using their position to pressure donors, as opposed to relying on ‘a rich friend’ like Mr. Crow, said Ronald D. Rotunda, who teaches legal ethics at Chapman University in California.” On the other side of the argument, Deborah L. Rhode, a Stanford University law instructor who has called for stricter ethics rules for Supreme Court justices, said Justice Thomas “should not be directly involved in fund-raising activities, no matter how worthy they are or whether he’s being centrally honored by the museum.”

The ethical analysis is at "Judicial Ethics."

Source:

Mike McIntire, “Friendship of Justice and Magnate Puts Focus on Ethics,” The New York Times, June 18, 2011.

Juggling the Court and the Constitution: Chief Justice Roberts

Charles Krauthammer proffers a pithy summation of the U.S. Supreme Court Chief Justice’s majority opinion on Obama’s health-insurance law of 2010: “Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.” Translation: the Court is not judicially activist, the 5-4 majority is not down party-lines, and federalism is protected. Essentially, John Roberts was able to dodge some bullets while doing what he needed to get done, philosophically. Turns out the guy is pretty smart after all. More than met the eye may have been behind President Bush’s decision to nominate him to be the Chief Justice.

Beyond judicial skill, the Chief Justice presides at the U.S. Supreme Court. He is thus oriented institutionally (i.e., as per his unique position there) to act in the Court’s institutional interest. In Krauthammer’s words, “Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the Court’s legitimacy, reputation, and stature.” That is to say, John Roberts as Chief Justice is more than a justice. To put it crassly, he was interested in what the popular press was saying about the Court while it was deliberating, whereas at least one of the other justices (Thomas) made an effort specifically to avoid looking at the press. Roberts was right to have one eye on how the reputation of the Court might be affected, and Thomas was right to have both of his eyes diverted so as not to be improperly swayed by public opinion. This is not to say that Roberts laid himself open to such influence; there is a difference between popular opinion on the law that is “under the knife” and how the Court could suffer in the public square as a result of a ruling. It is perfectly legitimate for the Chief Justice to have one eye on the latter.

The distinction between being the president of the Court—essentially presiding over it as the steward of its long-term viability—and being a “mere” justice on the Court means that the Chief Justice can be expected to be a “different kind of animal” from that of a justice. From the vantage point of the latter, the Chief Justice may look like a politician, and in fact there may be some political considerations involved in safeguarding even a long-term reputation. The mix of politician and judge seems a bit like that of oil and water—only the latter being reckoned by the jurisprud as pure. Hence John Roberts’ behavior probably struck the other justices as odd at best. However, I suspect that the people “in the know” involved in the selection of the Chief Justice had been well-aware that John Roberts was distinct in ways that would differentiate him from the other justices.

 U.S. Chief Justice John Roberts

Roberts had to be both politician and justice in crafting a majority opinion that would both protect the Court and safeguard federalism (or what is left of it, anyway). I suspect that in this dual-role, Roberts had the rare view that perhaps only leaders in Congress and the President get from time to time—namely, that of the big picture, wherein the trees of one’s days give way to the contours of the forest, both constitutionally and historically. From this summit, the United States is seen as if from a distance measured in terms of oceans of time, and “doing the right thing” can take on added importance because the precariousness of the thing awash in a sea of history yet to be made. 

 Crucially, with the perspective comes a recognition that is apart from any pressing ideological, philosophical, political or even judicial interests. The United States is perceived as an entity that is itself in need of protection apart from whatever way the currents of the day happen to be going. This recognition is what really distinguishes presiding from partisanship. The latter is relativized in importance. With the height of the position comes power such as can shift the contours of a nation’s trajectory for decades, yet also at this height is a humbling sense of responsibility. Ironically, those of less power act with much less responsibility and thus are more dangerous. The distinction here can be thought of as that which exists between transformational and transactional leadership, though the typically organizational application of transformational leadership mislabels or belies its true home, which is societal and historic. 

I suspect that in deliberating on the case, John Roberts perceived that he had not only signficant power in terms of a major piece of legislation in deciding which "side" would be the majority, but also the overriding responsibility to protect the Court itself, and indeed the viability of the U.S. system of governance (including the federal institutions and federalism itself). He was in a position institutionally that called him to rise to the occasion in terms of safeguarding the system itself. 

Theoretically speaking, being systemic in its orientation, the presiding function is consistent with  systemic leadership. The broad vision of such leadership transcends the issues and pressures of the day. To be sure, the more immediate strategic factors cannot be totally ignored. In fact, juggling the enlightened leadership vision that is oriented to the presiding function with the more short-term or issue-oriented strategic or political elements is of value in high positions. This composite in turn can be referred to as strategic leadership. Rather than being a fault or evidence of personal frailty, managing this task is quite proper to the office of Chief Justice.

Source:

Charles Krauthammer, “Why RobertsDid it,” National Review Online, June 28, 2012. 

Paper Tigers: Firewalls Forestalling Institutional Conflicts of Interest

Structural, or institutional, conflicts of interest are of great significance in applied ethics, even though they often play second fiddle to the conflicts centered on a person’s particular interests. An organizational or institutional conflict of interest, whether within one organization or in the arrangements between organizations, is not any less unethical than a personal conflict of interest.  Therefore, when we take the claims of vested organizational interests that their internal firewalls are more than just paper tigers at face value, our foolhardiness can really be at our detriment. I present a few cases to suggest that “firewalls” in an organization to prevent it from a conflict of interest are, in general, insufficient and thus ought not be relied on. Instead, the public (or government regulatory agencies) should insist that one of the two interests in an institutional conflict of interest be given up.

The full essay is at Institutional Conflicts of Interest, available at Amazon.