Politicians in Robes: Part III

The “Exceptions” That Prove the Rule

This is the final post in a three-part series about the six Federalist Society-sponsored justices on the Supreme Court, the coalition of plutocrats and theocrats that put them there, and the damage done to our elections and society as a result. In Part I, I explained why John Roberts’s reputation as an “institutionalist” was never justified, and how he has helped execute a constitutional coup on behalf of the Federalist Society. In Part II, I illustrated the extent to which the Roberts Court’s 5-4 Citizens United decision has allowed plutocrats to dominate our politics, and the extent to which the Roberts majority and other Trump-appointed judges have interfered in the 2024 election by shielding Trump from legal accountability.    

This series is intended to help extinguish any doubt whatsoever that, given the opportunity, the Roberts Court majority will not hesitate to throw the 2024 election to Trump – but if and only if it benefits the pluto-theocratic movement to which they belong, and if and only if they think they can get away with it. 

Many are skeptical of this claim because of the numerous judgments against Trump’s efforts to overturn the results of the 2020 election, including those by the Roberts Court. But those rulings, as I’ll explain in this post, are “exceptions” that prove the most important rule we need to understand about the Roberts majority: Whenever Trump’s or the Republican Party’s interests conflict with those of key plutocratic business interests, the business interests win out. 

To be clear, I’m not suggesting cartoonish villainy here. I don’t think Charles Koch calls up John Roberts and tells him how to rule. But the Federalist Society interests invested millions in getting Roberts and the other five majority justices confirmed because each justice had proven to be genuinely committed to the FedSoc mission. 

This post has three sections: 

• 2020 Post-Election Cases - The business community and the Republican establishment were strongly aligned against Trump’s and his MAGA allies in Congress’s attempts to overturn the results. 

• The 2024 Trump-related decisions - A closer look at the timing suggests a sensitivity to early misgivings about Trump in the FedSoc coalition. 

• Moore v. Harper and the ACA and Mifepristone cases - In each of these cases, business interests were strongly opposed to the maximalist theocratic/MAGA faction. 

The 2020 Post-Election

In this section, I will go through how Roberts’ decision making in the 2020 post-election reflected his commitment to the interests of the business community (the plutocratic half of the pluto-theocratic FedSoc coalition) – not to “democracy” as popularly understood. 

Corporate America was on Team Stability

In the week before the election, a Biden win – if not a landslide – was the prevailing conventional wisdom. The final FiveThirtyEight forecast rated Biden’s chances at 89-11, and forecast the largest popular and Electoral College margins since 2008. 

Especially in establishment circles, Trump was seen as erratic, insufficient to the task of dealing with COVID, and a disaster for international business relations. At the same time, the memory of the massive protests that followed the murder of George Floyd was quite fresh, and pointed to the grave dangers to stability if Trump attempted to stay in office regardless of losing. 

At that point too, corporations – especially consumer facing ones, or those who depended on recruiting the most talented knowledge workers – knew they would face huge costs if they went along with any coup attempt. All of this led to an unprecedented locking of arms between the AFL-CIO and the US Chamber of Commerce against any post-election mischief, which I was involved in.   

Once the election results were in, the picture looked even rosier for major corporations and for the few establishment Republicans left. Not only had Trump been defeated, but Democrats fell short of the pre-election expectations that they would flip the Senate. The establishment/corporate faction felt this was a win-win – voters would sweep Trump out of their lives, and if, as they expected, Republicans won at least one of the two run-offs in Georgia, they would have a Senate majority to make Biden a harmless one-term president. 

This attitude to Trump was shared both by the plutocratic interests that genuinely support the FedSoc lurch towards theocracy, and the more “normal” corporate interests that don’t (or are indifferent). Remember that especially since Citizens United in 2010, home state FedSoc-aligned billionaires have taken the whip hand in financing Republican state legislative campaigns. Think the DeVoses in Michigan, Art Pope in North Carolina, and the Uehliens and Bradleys in Wisconsin. Since 2010, they have contributed hundreds of millions of dollars to state legislative candidates in those states, not to mention similar amounts to local policy “foundations,” issue advertising, and the like.¹ Moreover, they have often financed primary challenges against Republican RINOs who crossed them, and the threat of negative independent expenditures is always in reserve. 

Yet, publicly, there wasn’t a peep from any of those pluto-theocratic quarters backing Trump in the 2020 post-election period. And the state legislative leaders these interests had in their pockets, like Michigan Senate Majority Leader Mike Shirkey and Michigan House Speaker Lee Chatfield (who could have thrown a wrench into their state’s electoral certification if they chose), said this after meeting with Trump:  

We have not yet been made aware of any information that would change the outcome of the election in Michigan and as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election.

Many were pleasantly surprised by Shirkey and Chatfield’s actions and praised them for it. But what they did wasn’t surprising, given that former Republican governors Rick Snyder and John Engler (also a former head of the Business Roundtable) made phone calls to influential donors and fellow GOP elder statesmen who could press the lawmakers privately. And, stunningly, on November 19th, in the midst of Trump’s efforts to sway those legislators, the DeVos-backed Freedom Fund issued a statement, which was also published in the Detroit News, that began, “Donald Trump lost Michigan; we accept this.”

And yet once Biden was safely in office, nearly all of those “pro-democracy” billionaires had little trouble backing and even financing post-hoc efforts to undermine the credibility of the election they had just defended, with their support of so-called audits and extreme election denying MAGA candidates – even in primaries against incumbent members of Congress who had voted to accept the Arizona and Pennsylvania electors on January 6th. 

That’s because their interests had changed – from avoiding the instability that a more aggressive coup attempt (successful or not) would have guaranteed, to again prioritizing the defeat of Democrats and their policies.

A prisoner’s dilemma sealed the deal 

It’s a dangerous overstatement to say that democratic institutions held in part because Republican election administrators like Brad Raffensperger, Justice Department officials like Bill Barr, and a Supreme Court packed with three Trump appointees rejected Trump’s efforts to overturn the results of the 2020 election at every turn. 

All of those Republican actors faced a classic prisoner’s dilemma. Immediately after the election, Biden was seen to have flipped Arizona and Georgia as well as the more expected Michigan, Pennsylvania and Wisconsin. For Trump to win the Electoral College, three of those five states would have to reverse the results. Thus, Brad Raffensperger knew that even if he did try to “find” 11,780 votes as Trump asked, unless two of the other four states (all of which had Democratic secretaries of state) did the same, Biden would still be sworn in, and Raffensperger would be exposed to prosecution for very serious felonies. 

Trump’s allies on the Supreme Court faced a similar, but not identical, dilemma. Unlike in 2000, when Bush’s allies on the Court had to make only one ruling (albeit unprecedented and controversial) to appoint him president, reversing the results of the 2020 election would have meant overturning elections in three states decided by tens of thousands of votes that Biden was seen as already having won, instead of one “decided” by less than 600 votes where the outcome was seen as at best uncertain. Especially given the business community’s clearly stated commitment to a peaceful transfer of power, such an intervention was out of the question.

Moreover, as Steve Vladek notes in his Substack, at the time many were forcefully calling for the Court to make a clear statement in defense of democracy. He quotes Tom Goldstein, co-founder of SCOTUSblog and prominent practitioner before the Court, that the Court: 

…needs to account for this extraordinary, dangerous moment for our democracy. President Donald Trump, other supportive Republicans, and aligned commentators have firmly convinced many tens of millions of people that the 2020 presidential election was stolen. If that view continues to take hold, it threatens not only our national politics for the next four years but the public’s basic faith in elections of all types that are the foundations of our society.

And then again at 10:15 p.m. ET on January 6, Goldstein once again called on the Court “to speak to the country”:

It is not too much for the court to issue an opinion stating forthrightly that the challenges to the election results are — according to every single court ruling and independent review — based on lies and fabrications. That is a fact. Saying less is much too little.

The Constitution embodies various checks and balances. But the branches of government do not have to compete. They can support each other. At the opening of its proceedings, the court’s marshal cries for God to “save the United States” first, not merely “this honorable court.” This is a time for the court to look toward the greater good of the nation. Numerous lower court judges have done just that, by calling out how frivolous and mendacious Donald Trump’s challenges truly are. (Emphasis added)

But, of course, this court has no interest in “the greater good of the nation,” as it would prove three years later. 

The 2024 Cases

While it could be a coincidence, the timing of events in Trump v. U.S. (the immunity case) and Trump v. Anderson (the Colorado ballot case), combined with the timing of events in the Republican presidential primary, provide at least suggestive evidence that Roberts has been as responsive to the interests that made him Chief Justice as Mitch McConnell is to the interests that made him Senate Majority Leader. 

Again, I don’t think Charles Koch dialed up John Roberts and told him what to do in either of these cases. But, once it was clear (however regretfully for the FedSoc coalition) that the alternatives were Trump or Biden, what needed to be done was obvious.

December 2023

First, let’s remember that in the early months of the Republican presidential primary, the Koch network – not to mention the remaining establishment Republicans, including Trump’s two main challengers – presumed that it would quickly become obvious that Trump was unelectable. The hope was that Haley or DeSantis could make a narrow electability case that they were better situated to win in 2024, while still agreeing with and supporting Trump every way they could to court his base, including condemning all efforts to prosecute him. 

That argument began to blow up in their faces in mid-2023 when mainstream polling, including from the New York Times, made it clear that Trump was as viable a candidate against Biden as they were, with a very good chance of winning. Why switch horses? 

Many of the FedSoc interests, notably the Koch network, were backing Haley at first. By December, it was obvious that Haley’s prospects depended on Trump standing trial. It had to be clear that Trump’s legal problems would disqualify him, either literally (through disqualification under the 14th Amendment) or by reducing his chances of defeating Biden.

And so, with the Federalist Society factions divided in their presidential preferences, the Supreme Court rejected Jack Smith’s request for them to rule on the immunity question. 

February 2024

The FedSoc interests united behind Trump no later than February 25th, just after the South Carolina primary, when news broke that the Koch network had bailed on Haley.

Before February 25th, leading Republican politicians had also shied away from endorsing Trump. It’s reasonable to presume they were hedging so as not to get caught on the losing side. For example, on February 13th, the Washington Post reported that only 5 senators had endorsed Trump (Trump’s Meager Early 2024 Endorsements).² But then – on February 25th – John Thune, the #2 Senate Republican who hoped to succeed McConnell, endorsed, with many others following almost immediately. And, within a month or so, former attorney general Bill Barr, and many others who had avoided taking a side, were firmly on board. 

As the New York Times reported in a blockbuster expose, Roberts had sent a confidential memo on February 22nd to the other justices about the immunity case that “wrote not only that the Supreme Court should take the case — which would stall the trial — but also how the justices should decide it.” On February 28th, the Roberts Court reversed course and decided to hear Trump’s immunity appeal, more than two weeks after Trump filed it.³

As for Trump v. Anderson, given the line of questioning in oral arguments on February 8th, it is reasonable to believe that agreement on the principles enunciated in the per curiam was immediate, or nearly so. Indeed, recent “insider” coverage of the Court’s deliberations confirms that.⁴ So why did the justices wait until March 4th to rule? As this chart makes clear, it was much longer than SCOTUS has taken in similarly time-sensitive situations. 

Here again, the Times reporting is suggestive. Roberts initially “told his colleagues he wanted the decision to be unanimous and unsigned,” and took the rare step of consulting with each of them to see what they would accept. But then (emphasis added):

While all nine justices agreed that Mr. Trump should remain on state ballots, four of the conservatives were pushing to go beyond that and rule that the Constitution’s prohibition would require congressional action to take effect. Such a decision would provide greater protection for Mr. Trump: To prevent him from taking office if he won re-election, Congress would have to vote to enforce the insurrectionist ban.

That left the chief justice in control of the outcome. He lingered over the choice, those familiar with the process said. Ultimately, he sided with the four conservatives in an opinion that he wrote but that was issued unsigned. Justice Amy Coney Barrett and the three liberals wrote concurrences saying the majority had gone too far. (Emphasis added.)

At the time when there was immediate and unanimous support for a per curiam in Trump v. Anderson, the Koch network was still supporting Haley. But then came the February 25th announcement of dropping Haley, and then came the February 28th decision to take Trump’s appeal in Trump v. US. By March 4th, a day before Super Tuesday, the decision in Trump v. Anderson was well past moot for Colorado – but it did signal the legitimacy of Trump as the nominee going forward. 

So, while the Roberts Court has otherwise shown no restraint in interfering with democratic elections, the majority managed to avoid interfering in the 2024 Republican nominating process – until, that is, Trump’s nomination was secure.

Other “Exceptions” 

Moore v. Harper

As I wrote in December 2022, six months before the eventual decision in Moore v. Harper: “Many are celebrating the Court’s refusal to validate the absurd “independent state legislature” theory that could have allowed MAGA-dominated state legislatures to overturn federal election results. Unfortunately, these celebrations overlook that the decision further normalizes the idea of SCOTUS interventions in elections. As Adam Liptak reported in the New York Times in 2013, this is Roberts’ classic incremental approach – hold back from the worst to engage the “liberal” justices in rulings that set the stage for more respectable rulings later.” 

Remember that, until Florida 2000, it was presumed that state supreme courts had the final word on election controversies in their states. Now, with the approval of Justice Sotomayor, Kagan, and Jackson, any decision that may be made by a state supreme court with respect to the 2024 election made is now presumed to be appealable to SCOTUS. Specifically: 

“Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein. … As in other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law.”

“State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal 30 MOORE v. HARPER Opinion of the Court courts must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution.”

Thus, the FedSoc coalition has its cake and can eat it too. If an off the rails state legislature tries to overturn the result, it can be rejected by the state’s supreme court (the catastropists’s scenario) – but if overturning the results suits the FedSoc coalition, the Roberts Court can overrule the state supreme court. 

ACA Repeal

Although the Sebelius case was brought by the NFIB, the healthcare industry quickly saw the value of the ACA in rationalizing their market, guaranteeing steady profit growth, and pre-empting more radical reform efforts. 

Remember that before the ACA was enacted, spending against health care reform had been astronomical, including advertising, campaign contributions and lobbying. Yet, Republicans’ campaign to “repeal and replace Obamacare” received no backing from the healthcare industry, even in 2017 when Republicans had a trifecta. By the late 2010s, the majority of contributions from the healthcare industry had shifted from Republicans to Democrats. 

Mifepristone 

It was interesting to hear some say that the Roberts majority punted in FDA v. Alliance for Hippocratic Medicine to avoid the backlash in an election year. Whether that was true or not, the deeper reason was that doing otherwise would have broken the regulatory model the pharmaceutical industry depends on, throwing into question regulatory approval for their entire product portfolios. 

That’s not to say that Thomas and Alito are always on board for the business perspective. But consistently when their maximalist positions conflict with business interests, business interests prevail, albeit often only with the support of the 4 (now 3) other justices. At a minimum, Roberts, and seemingly now Barrett, subscribe to Scalia’s famous quip when asked how he was different from Thomas: “Look, I’m an originalist, but I’m not a nut.”

Weekend Reading is edited by Emily Crockett, with research assistance by Andrea Evans and Thomas Mande.

1. Hundreds of millions is very conservative; over the period in question, it’s certainly several billion dollars, but I don’t want to invite quibbling about exactly how much, which is certainly unknowable given flimsy disclosure rules.

2. They were : Lindsey O. Graham (S.C.), Markwayne Mullin (Okla.), Eric Schmitt (Mo.), Tommy Tuberville (Ala.) and J.D. Vance (Ohio)

3. Presuming that Kagan, Jackson and Sotomayor would have heard the case in December, we can assume that none of the Roberts Six went along with granting cert. (Smith needed 4 votes, which he obviously did not get). After the D.C. Circuit’s unanimous rejection of Trump’s immunity claims, at least four SCOTUS justices reversed their December position and agreed to hear the immunity question. 

4. According to that “inside scoop” reporting says that “there was broad understanding among the justices [from the beginning] that they would need to decide the [immunity] matter themselves, and only after the usual appellate court hearing.” If so, why did they wait so long to grant cert after the “usual appellate court hearing” to grant cert (16 days compared to the 2 to take Anderson), and then why did they schedule oral arguments for 56 days later (compared to 31 for Anderson).