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Is It Part Of A “Grand Scheme”?

One possibility is that the Supreme Court’s questioning during oral argument over Colorado’s disqualification of Trump from the primary ballot reflected a number of serious, legitimate concerns about the novel issues raised by the state’s putative exercise of Section 3 of th Fourteenth Amendment. The other is the XAnon conspiracy theory being propounded by the left that it’s a cynical ploy to rehabilitate the Court’s public image.

Chief Justice John G. Roberts Jr. and his colleagues seemed ready on Thursday to start to rebuild the court’s reputation by presenting themselves as unified and apolitical.

He has had a bumpy ride of late, what with the leak of the decision overturning Roe v. Wade, an inconclusive investigation into that breach, a lonely concurrence in the decision itself and ethics scandals followed by a toothless code meant to address them.

All of this has contributed to dips in the Supreme Court’s approval ratings, as large segments of the public have increasingly viewed it as swayed by politics rather than committed to neutral principles and the rule of law.

By “large segments,” Adam Liptak refers to the people who read Linda Greenhouse’s screeds and still believe they can read reasoned analysis at Slate.

Richard L. Hasen, a law professor at the University of California, Los Angeles, wrote in Slate that the outline of a “grand bargain” was coming into view.

“The Supreme Court unanimously, or nearly so, holds that Colorado does not have the power to remove Donald Trump from the ballot, but in a separate case it rejects his immunity argument and makes Trump go on trial this spring or summer on federal election subversion charges,” he wrote.

When the Supreme Court rules in a way that outrages the left, it proves that the Court is made of Trumpian partisan hacks determined to achieve their reactionary goals by any means possible. But when they rule in the way the left wants, it proves the Court is made of Trumpian partisan hacks determined to deceived the public by not appearing to be Trumpian partisan hacks.

For a while, I’ve argued that the case for disqualification was fraught with open legal issues that militated against its exercise by a state regardless of whether Trump engaged in or incited insurrection. I’ve already made clear that I think he did, but that’s not the end of the inquiry. If you get your news from MSNBC or Slate, you were told there was no possibility that Colorado could lose as it was obvious that Trump was disqualified under Section 3. If you got your news from Fox, you were certain that Colorado was wrong.

If you fully considered the arguments, however, you realized that it was complicated and, in the exercise of judicial humility, would likely go against Colorado not because Trump didn’t deserve to be disqualified, but because the section was ambiguous, Congress never enacted enabling legislation and the people should not be denied the ability to vote for the candidate of their choice in the absence of clear and certain constitutional mandate. In other words, nothing that happened at oral argument was at all surprising. Or at least it shouldn’t have been.

But on the left, they cannot accept that the Supreme Court, including at least two of its “liberal” wing, were just doing their job. Particularly after Dobbs, it is unacceptable if not impossible to ascribe integrity to their rulings because no one with integrity would ever rule contrary to their desired outcome. So it must be some sort of conspiracy, or as Rick Hasen calls it, a “grand bargain.”

Tara Leigh Grove, a law professor at the University of Texas, said the case concerning Mr. Trump’s eligibility and the one on his claim of absolute immunity may as a practical matter be linked.

“History tells us that the Supreme Court does better with the public — in other words, is seen as more legitimate — when it does not rule repeatedly just for ‘one side’ of the political aisle,” she said. “So I anticipate that the justices will welcome a kind of ‘split decision’ in these cases. That is, the court can rule that President Trump remains on the ballot, and yet has no immunity from federal criminal prosecution.”

The scheme is that they give one decision to the right an one to the left, and come out smelling like a legitimate Supreme Court. It’s not that they rule in the ways they legitimately believe to be legally sound, which may (or may not) end up with a win for Trump on Colorado and a loss on absolute presidential immunity. Indeed, being immune from prosecution for having Seal Team 6 assassinate one’s presidential rival really isn’t as strong an argument as some might think.

The problem, of course, is that it such a “grand bargain” has been struck in Chief Justice Roberts’ efforts to rehabilitate the Court reputation with the public, then it would be exactly the sort of hackery of which the left complains. A Court with integrity rules without fear or favor, and does not let public approval influence its decisions. But then, lurking below the surface of this XAnon conspiracy theory is that the left cannot allow for the possibility that the conservative justices aren’t just partisan hacks, but that they just lost.

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