Chief Justice John Roberts has earned a new nickname: The Mailman. He delivers. (Move over, Karl Malone, the basketball superstar long known by that name.)
With the two cases involving President Trump’s tax returns, the Supreme Court was confronted with separation of powers issues that were at once novel and fundamental. For many observers, it is tempting to see the two cases as raising a single question: Will Trump win or lose?
But the underlying principles will affect all presidents, not just this one. What is needed is “veil of ignorance constitutional law” — that is, principles that you would endorse, and be prepared to stand by, even if you were deciding behind a veil of ignorance, and had no idea who the president was.
Judged by that standard, Roberts and the court as a whole did extraordinarily well in their Thursday ruling.
Of the two cases, the easier was the one from New York, whose district attorney served a subpoena on Mazars USA, Trump’s personal accounting firm. The subpoena sought Trump’s financial records, including tax returns from 2011 to the present.
Trump’s personal lawyer made the extraordinary argument that, as president, Trump is immune from a state criminal proceeding. The Department of Justice argued more modestly that, to be enforceable against a sitting president, a state subpoena must “satisfy a heightened standard of need” — and that the district attorney had failed to meet that standard.
Roberts’s opinion for the court rejected both arguments. Over 200 years ago, the court ruled that the president is subject to federal subpoenas; state subpoenas are not meaningfully different. A subpoena, as such, is not a lot of fun, but it does not prevent the president from doing his job. In rejecting the president’s claim of absolute immunity, the court was unanimous — a striking demonstration of its members’ commitment to the principle that no one is above the law.
With respect to the Department of Justice’s argument, the court emphasized that it was dealing with the president’s private papers, not with official documents, where the president might be able to make a claim of privilege. In addition, the “public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence.”
Like everyone else, a president can challenge a subpoena as unduly broad or excessively burdensome. In the court’s view, he is entitled to no less — but also to no more.
The much harder case involved several subpoenas from the House of Representatives, again seeking information relating to Trump’s business dealings and tax returns.
The court firmly rejected Trump’s claim that Congress has to show that the information it seeks is “demonstrably critical” to some legislative purpose (such as the enactment of new laws). After all, the case involved an effort to get business records and tax returns, not materials related to national security or transcripts of discussions in the Oval Office, where any president has a strong claim to confidentiality.
It is tempting to think that the president is just like anyone else: He has to comply with a lawful subpoena from Congress. But the court rejected that view as well. The reason is simple: “Congress and the president have an ongoing institutional relationship as the ‘opposite and rival’ political branches established by the Constitution.”
In view of that rivalry, congressional efforts to subpoena a president’s personal records might have a purely political motivation. Such efforts might represent an effort, by the Senate or the House, “to aggrandize itself at the president’s expense, just as the Framers feared.”
Imagine, for example, that a Republican-controlled Senate, seeking to damage a president named Joe Biden, decided to subpoena every document relevant in any way to the business dealings of Biden and his son Hunter — not because it was genuinely concerned with enacting new legislation, but because it wanted to inflict political damage.
There’s a hard balance to be struck here, and the court did its best to get there. It said that lower courts must engage in careful analysis, giving consideration to four factors: Does a congressional committee, deciding whether to enact new legislation, really need to involve the president and to ask for his papers? Is the subpoena broader than necessary? Has Congress offered detailed and substantial evidence, showing that it has a valid legislative purpose? What kinds of burdens are being imposed on the president by the subpoena?
It’s telling, and a minor miracle, that Roberts’s opinion was joined by a diverse array of justices: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh. Broad agreement cannot, of course, guarantee correctness. But it reflects the sense and sensitivity of Roberts’s opinion — and the immense difficulty of doing better. (The dissenters, Clarence Thomas and Samuel Alito, would have given greater protection to Trump.)
If the question is whether Trump won or lost, the answer is straightforward: He lost, mostly.
But a much better question is whether, at this defining moment in American history, the Supreme Court of the United States and the chief justice acted in accordance with their solemn obligations.
The answer is also straightforward: The court did exactly that, and the Mailman delivered.
Cass R. Sunstein is a professor at Harvard Law School. He can be reached at email@example.com.