So this paragraph from @rickhasen’s latest isn’t news, but just triggered a thought I don’t think I’ve quite articulated but have consistently implied slate.com/news-and-polit… 
It’s the big difference between the Burger Court’s conservatives vis a vis Nixon and the Roberts Court’s conservatives vis a vis Trump...
The same Chief Justice who had this very familiar view...
...Then went on to write the majority opinion in the unanimous case that led directly to his patron’s resignation
The court’s conservatives wouldn’t get behind such a unanimous decision today. But it’s not because of any fealty to Trump.
Back in the 1970s, conservative judges didn’t have a grand orthodoxy. There was a sense they needed to be restrained and committed to “law and order,” in contrast with strident 1960s liberalism on race and towards criminal defendants.
But that still left those Burger Court conservatives pragmatic rather than dogmatic, and that pragmatism allowed outside realities in when the interests of justice (even if influenced by the prevailing political moment) demanded it
Not so with today’s conservative legal movement. Not even its arch-pragmatist, Alito, because he’s a Rehnquist-style partisan (and Rehnquist was recused from the Nixon tapes case, so we’ll never know if he’d have punctured that case’s unanimity).
Instead, today’s conservative vanguard, as led by Thomas and supported by Gorsuch (and Kavanaugh), has a principled view on executive power that just so happens to happily dovetail with the current White House occupant’s cynical legal theories
Among those principled views is the one Kavanaugh has articulated - but is by no means unique to him - with very good constitutional authority: the sole remedy for a lawless *sitting* president is impeachment.
As with the travel ban, the view is towards the presidency, not this president: bad facts make bad law and so no principled jurist would or should make an exception for a particularly bad actor just because the interests of justice demand it.
To sum: the pragmatism of the Burger Court’s conservatives gave them the flexibility to rule against Nixon, but that very flexibility is what the Roberts Court’s conservatives rebelled against, yielding us judges whose principles compel them to side with a lawless executive.
Anyway, I don’t think we’re getting too far ahead of ourselves after today to do some homework
And this @adamliptak piece does a great job on the to-indict-or-not-indict history nytimes.com/2018/08/21/us/…
