law

Will the Supreme Court Stand Up to Trump?

To the extent that the presidential campaign focused on the Supreme Court with any specificity, the attention was on abortion, religion, gay rights, guns and other familiar issues on the social agenda. But going forward, the Roberts court may find the most pressing issues on its docket to concern core questions of civil liberties and the separation of powers.

.. When the president, aided by his inner circle and his congressional enablers, pushes through some norm-shattering order, wipes away duly promulgated regulations with the flourish of a pen or drives a truck through the wall between church and state, where will the Roberts court be? (And where will Mr. Trump’s Supreme Court nominee, the appeals court judge Neil M. Gorsuch, be?)

It’s hard to imagine two figures on the current public stage less alike than the button-down chief justice and the flamboyant president.

.. Watching Chief Justice Roberts administer the oath to Donald Trump, what struck me was the unlikelihood that these two men would even be sharing the same stage — and not only because during the campaign, Mr. Trump called the chief justice “an absolute disaster” for his votes to preserve the Affordable Care Act.

If Donald Trump is the in-your-face chief executive, John Roberts has perfected the art of being the nearly invisible chief justice. He can be tough on the bench during arguments and in the justices’ private conference as well, but in public he exudes a self-deprecating diffidence.

.. The chief justice, a strategic thinker with exemplary work habits, is every bit a match for the president. He is a very good lawyer with very conservative instincts, and his own long-range game plan includes getting the government out of the business of taking account of race, even for the purpose of protecting voting rights or preserving the hard-won gains of integration.

.. The question now is to what extent he is willing to lead his court in standing up against a president who, it is hardly far-fetched to imagine, may trample the First Amendment, withhold information the law regards as subject to disclosure, or defy court orders on immigration or other matters.

.. Chief Justice Roberts signed a hyperbolic dissenting opinion by Justice Scalia that opened with “America is at war with radical Islamists” and went on to warn that the decision “will almost certainly cause Americans to be killed.” Perhaps more to the present point, the chief justice also filed a dissenting opinion of his own, in which he asked rhetorically who had won the case. The answer, he said, was “certainly not the American people, who today lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges.”

.. Robert Post and Reva Siegel, maintained that rather than ask nominees how they would decide current or future cases — questions that nominees properly refuse to answer — senators should ask how they would have decided past Supreme Court cases.

Acting Attorney Generals Can’t Overrule Presidents on Enforcement of Legal Orders.

Like most Democrats, [now-fired Acting Attorney General Sally] Yates objects to the president’s executive order. Fair enough. But she is not a political operative, she was a Justice Department official — thehighest such official. If her opposition to the president’s policy was as deeply held as she says, her choice was clear: enforce the president’s policy or quit.

Instead, she chose insubordination: Knowing she would be out the moment Senator Sessions is confirmed, she announced on Monday night that the Justice Department would not enforce the president’s order. She did not issue this statement on the grounds that the order is illegal. She declined to take a definitive position on that question. She rested her decision, rather, on her disagreement with the justice of the order. Now, she’ll be a left-wing hero, influential beyond her heretofore status as a nameless bureaucrat. But she had to go.

That’s what struck me about Yates’ letter. She says theexecutive order is not “lawful” but never specifies what law it breaks. That’s the sort of thing you would expect the attorney general of the United States to mention.

.. The work of the committee aides began during the transition period after the election and before Donald Trump was sworn in. The staffers signed nondisclosure agreements, according to two sources familiar with the matter. Trump’s transition operation forced its staff to sign these agreements, but it would be unusual to extend that requirement to congressional employees. Rexrode declined to comment on the nondisclosure pacts.

.. Rowe offered his familiar but no less accurate assessment that society will continue to have a skills gap as long as any job that involves working with your hands is seen as second-class or inferior to white-collar work.

“We right now have 5.8 million jobs that exist that nobody can fill right now,” Mike Rowe told theassembled Koch donors. “About 75 percent do not require four year degree. We have in our heads this idea that the best path for everybody is a four-year degree. We have ‘higher education’ and — we’re not crass enough to call it ‘lower’ education — we’ll call it ‘alternative’ education. Implicit in the language that we choose is the judgment and the ultimate outcome. It’s a reflection of the kinds of jobs we’ve rewarded, and the perception that these jobs are vocational consolation prizes. We’ve absolutely created a hierarchy in work.”

Acting Attorney General Orders Justice Dept. Not to Defend Refugee Ban

The decision by the acting attorney general is a remarkable rebuke by a government official to a sitting president that recalls the dramatic “Saturday Night Massacre” in 1973, when President Richard M. Nixon fired his attorney general and deputy attorney general for refusing to dismiss the special prosecutor in the Watergate case.

That case prompted a constitutional crisis that ended when Robert Bork, the solicitor general, acceded to Mr. Nixon’s order and fired Archibald Cox, the special prosecutor.

.. Aides to the president backtracked on Sunday, saying that lawful, permanent residents of the United States would not be barred by the order. But White House officials said the president had no intention of backing down from the order, which continues to shut the borders to refugees and others.

Family Disputes and a Nasty Can of Beans: Hillary Clinton as Litigator

Mrs. Clinton’s legal work included unsavory criminal cases. When a 41-year-old factory worker was accused of raping a 12-year-old girl, and requested a female lawyer, a Fayetteville judge appointed Mrs. Clinton, over her objections. The crime lab mistakenly discarded crucial evidence, and she reached a plea bargain, reducing the charge to unlawful fondling; her client served less than a year in jail.

The victim in that case, Kathy Shelton, who supports Donald J. Trump, has accused Mrs. Clinton of attacking her character and putting her through “something you would never put a 12-year-old through.”

.. Her clients were mainly businesses, including a canning company that was sued by a man who found the hind quarter of a rodent in his can of pork and beans.

The man complained of psychological and emotional harm, saying that he could not stop spitting, and that it was preventing him from kissing his girlfriend.

“He sat through the trial spitting into a handkerchief and looking miserable,” Mrs. Clinton wrote of the plaintiff in her 2003 memoir, “Living History.” Something had obviously gone wrong at the factory, she argued, but no harm had been done, since “rodent parts which had been sterilized might be considered edible in certain parts of the world.”

.. Her husband teased her for years about what he called her “rat’s ass” case.

.. She was one of only a handful of women litigating cases in the state, and carefully calibrated her appearance and approach, recalled Amy Stewart, another Rose lawyer. “One of the first things I learned from watching her, when she was with judges or in a deposition or in a courtroom — it was all about not drawing attention to yourself,” Ms. Stewart said. Rather, she added, “it was about drawing attention to the strength of the client’s case.”

.. The National Law Journal named Mrs. Clinton among the country’s most influential lawyers in 1988 and 1991

.. In 1977, she represented an Arkansas utility, First Electric Cooperative, in a case against Acorn, the low-income community organizing group. Acorn had pushed through a ballot initiative to reduce rates for residential customers, especially the poor, while raising rates for businesses. Mrs. Clinton wrote the winning brief over late-night pizza, arguing that the measure would drive businesses out of the state.