John Adams wins big at the US Supreme Court
The recently completed U.S. Supreme Court term is the most significant in years. The nation’s highest court delivered stunning decisions on LGBTQ rights, abortion rights, DACA, religion and schools, religion and teachers, religion and birth control, the rights of Native Americans, the electoral college, independent agencies and the president’s tax returns. To oversimplify for a moment, conservatives “won” the DACA case (President Trump lost on a technicality that he can easily fix), the three major cases about religion, the electoral college case and the independent agencies case. Liberals “won” the LGBTQ case, the abortion case, the Native Americans case and one of the two tax return cases.
The second of the two tax return cases — the one involving a congressional subpoena of President Trump’s financial records — was almost certainly the most important decision of the term.
At issue in Trump v. Mazars was whether a House committee can require President Trump’s accountants to turn over records revealing his personal tax returns and financial dealings. The president insisted in both tax return cases that his status as chief executive gives him an “absolute immunity” from such demands, while House Democrats said Congress has a nearly unlimited right to obtain confidential information so as to carry out oversight and investigations.
The Supreme Court accepted neither position. Instead, the Court ruled 7-to-2 that Congress has authority to subpoena information to aid it in its legislative function, but that this power is subject to limits.
President Trump fumed on Twitter about a “witch hunt” and “political persecution.” House Speaker Nancy Pelosi, apparently unaware of what the Supreme Court actually ruled, spun from Capitol Hill that the decision was “not good news for President Trump.”
Meanwhile, John Adams was smiling from above. After all, our nation’s second president was the big winner at the Supreme Court this year. Why? Because it was Adams’ 1776 pamphlet “Thoughts on Government” that the framers wrote into article III of the U.S. Constitution in 1787.
Adams’s pamphlet — a clarion call for separation of powers written in response to Thomas Paine’s recommendation in “Common Sense,” during the initial rush of state constitution-making, that all government power be vested in a unicameral legislature — insisted that “The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.”
Adams recommended that judges be “nominated and appointed by the governor, with the advice and consent of council.” However, he argued for more than merely making the judiciary a separate branch of government. He called for stable judicial compensation and tenure so long as judges behave well: “[T]hey should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.” Adams also insisted that judges who misuse their offices should be impeached and removed.
Although the Constitution excluded the executive from the impeachment process, it otherwise contained principles identical to Adams’ proposal: The Supreme Court is a separate branch of government, the justices enjoy life tenure during good behavior, and their salaries cannot be diminished while they are in office.
Without this political architecture created by Adams that guarantees judicial independence for Supreme Court justices, the nation never would have witnessed a term as significant as the one the Court just completed. Indeed, President Trump’s two nominees — Neil Gorsuch and Brett Kavanaugh — voted against the president in both tax return cases despite the concerns raised by Democrats during their respective confirmation processes that they would be little more than President Trump’s water boys. They are not. They are independent judges, just as John Adams envisioned
Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project.