If the current Supreme Court had held comparable office in Weimar Germany, that is, its opinion in Trump v. United States would have rendered the judgment in this post’s headline. Never mind that the Weimar Constitution was different from the U.S. Constitution (importantly, in granting emergency powers to the President to rule by decree under Article 48). For, as Justice Sotomayor rightly observes in her blistering dissent, the majority’s decision that the President enjoys absolute immunity for his official acts has “no firm grounding in constitutional text, history, or precedent” (quoting Alito’s characterization of Roe v. Wade in Dobbs).
So let us set aside the law, which has nothing to do with how the Court majority arrived at its opinion. I am here to explore the majority’s mindset, which leads it down the path to utter lawlessness, and opens the door to dictatorship. Justice Roberts disparages this worry as overblown, much as Hindenburg imagined that Hitler was a mere blowhard, no real danger to the Republic. Never mind that Trump, like Hitler, habitually announces his malign intentions in advance–that he will not honor any election that does not place him in office, that he will abuse the powers of the President to wreak vengeance on his enemies, that he will rule as a dictator (on “day one,”–but now the Court has granted him a license for at least a 4-year term). Such announcements are the only times when it is prudent to take Trump at his word.
Roberts, like everyone else on the Court, knows that Trump conspired to overthrow the results of the 2020 election and stay in power by inciting a mob to shut down Congress’s counting of electoral votes. What could make him imagine that Trump’s actions were, if not lawful, then beyond the reach of any controlling law?
We have a precedent in Nazi jurist Carl Schmitt, whose book, The Concept of the Political, offers some insight into the Court majority’s mindset. If that mindset is not literally fascist, it is fascist-adjacent. Consider the parallels:
Schmitt claims that the essence of politics is an existential struggle between friends and enemies. The people are never wrong, he claims, in how they define themselves, and they define themselves in terms of violent opposition to their enemies (whether foreign or domestic). While Roberts backed off from such Manichean friends-enemies thinking in a secret recording, Alito signed on to the Christian nationalist version of this view, which is tied to anti-Black and anti-immigrant views. Trump, of course, has made Hitler’s replacement theory the centerpiece of his appeal to his base. This is a version of the existential friends-enemies narrative according to which Jews and their “woke” friends are conspiring to replace white Christians with immigrants who Trump claims are “poisoning the blood of our country.”
If you are inclined to think of politics as an existential struggle of us-against-them, you are liable to succumb to apocalyptic thinking. From rights to contraception, abortion, no-fault divorce, and gay marriage to, more recently, “open borders,” trans rights campaigns, and Black Lives matter challenges to police impunity (enabled by Supreme Court’s invention of qualified immunity for police and prosecutors)–“wokeness” has seemed to be steadily winning the culture wars over conservative Christians for a long time. 2016 was, in this mindset, “The Flight 93 Election,” in which Trump rode to rescue real Americans from “a Hillary Clinton presidency” of “Russian Roulette with a semi-auto.”
Such hysterical thinking naturally leads to Schmitt’s second key idea, the “state of exception.” This is the idea that in an emergency, the supreme leader needs the freedom to act lawlessly to rescue the people from its mortal enemies. Trump came to the rescue legally in 2016. But he didn’t stop the decline of Christians and the rise of the “nones.” Given that fact, it might seem to make sense to the Court majority to resort to heavier artillery in the culture wars, from a made-up doctrine of police qualified immunity to a made-up doctrine of Presidential absolute immunity and hence impunity to stage the equivalent of Hitler’s Reichstag fire and seize power. Trump didn’t pull it off the first time. But the Supremes have given him the artillery he needs if he gains office again in 2024.
The majority’s core idea underlying Trump v. U.S. is that without “absolute Presidential immunity” from criminal prosecution for “official acts,” . . . “the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” All Presidents until now have acted under the shadow of a threatened criminal prosecution if they took bribes, obstructed justice, committed treason, staged a coup, or committed other criminal abuses of power. The majority does not cite a single case of a President being constrained from taking necessary bold action within the scope of his authority out of fear of criminal prosecution. But, in a fascist or fascist-adjacent mindset, one has no patience for logical thinking or drawing distinctions, nor for legal or even moral constraints on the bold action of the dear leader, who is second only to Jesus as the savior of his people.
{ 45 comments… read them below or add one }
M Caswell 07.02.24 at 1:28 pm
The opinion appears to grant “absolute immunity” only to acts within the president’s “core constitutional powers,” not to “official acts” in general, as Trump had argued.
Liz Anderson 07.02.24 at 2:18 pm
In the hands of the Court majority, this will end up being a distinction without a difference, as Sotomayor points out in dissent. All official acts, the Court says, are entitled to at least presumptive immunity. Who can doubt that, with the thumb so heavily on the scales in favor of Presidential impunity, that the presumption will be in practice irrefutable? Particularly since the Court also bars the kind of evidence that would typically be required to prove otherwise–a President’s discussions with others in the Executive Branch.
engels 07.02.24 at 3:15 pm
Fifth Avenue foot traffic will be going off a cliff.
MisterMr 07.02.24 at 3:19 pm
The silver lining is that now if the election goes bad Biden has the right to ignore the results and storm the capitol. (sarcasm)
nastywoman 07.02.24 at 3:44 pm
‘Supreme Court Rules Hitler Immune from Prosecution for Burning Down Reichstag, Seizing Absolute Power’
AND!!
‘Der Führer’
(and all of his Followers)
would be/IS very proud –
that
FINALLY!!!
‘DAS NEUE DEUTSCHE REICH’
stretches from ‘Deutschen Osten’ to Hungary (and – Russia?) ALL the way to Alaska and Arizona (with the free republic of CALIFORNIA still resisting)
AS
nearly ALL the Right Wing Racist Science Denying Criminals of this World had adopted Hitlers philosophy
of
‘MEIN KAMPF’ nearly word for word and thusly the entire program of the German NSDAP Party -and it’s successor the AfD.
(and the only women who seems to have noticed the BEAUTIFUL –
(as trump would say)
IRONY – is my Italian sister Giorgia
(because. she thought to also include the old German SS into this ‘NEUE WELTREICH’ might be a step too far)
nastywoman 07.02.24 at 3:56 pm
and trying to see the whole ‘sink’ –
(as the other ‘Führer’ Elon Musk would say)
a bit more seriously:
Why in this World aren’t American Judges
aware – that they have copied the utmost important ‘Gesetz der Deutschen NSDAP’?
The FIRST law of very Fascist in this World:
‘FÜHRER BEFIEHLT WIR FOLGEN’
(and did Hitler thusly win WW2?)
Michel 07.02.24 at 4:12 pm
I don’t understand the premise that the President does or might need immunity from criminal prosecution for official acts. What are these actions, exactly? Because as far as I can see, most democracies and world powers get by just fine without that kind of protection.
And yet, this seems to be one of those things that American journalists and pundits just accept wholesale. I don’t get it.
somebody who was alive when the president ordered prisoners tortured 07.02.24 at 5:08 pm
dont worry everyone. the immunity will be withdrawn the minute a democratic president tries to use it. (just kidding, we will never have a democratic president again)
Nathan Lillie 07.02.24 at 5:19 pm
The issue is not just that the Supreme Court has granted de facto total immunity for official acts, but it has just shown that it will make up principles out of whole cloth and justify the unjustifiable in order to serve their God King. They bend themselves into logical pretzels to come to their desired outcome – that Trump should not face consequences – without regard for what other effects the ruling might have. It is argued that the immunity applies to Biden as well – if tested I think we will find it does not. Consistency is evidently no longer important, so I think they will come up with motivating reasoning to justify the immunity not applying to Biden, if they have to. The ground for this was prepared by the vagueness of the “official acts” immunity. Given this situation, I think we can expect more such rulings, every time Trump needs something.
Murray Reiss 07.02.24 at 5:21 pm
Admittedly, as a Canadian I’m somewhat clueless about how the US system works but is there nothing that can be done in the face of a lawless Supreme Court? Is there no way to fight back? Or is that it?
mw 07.02.24 at 6:38 pm
Michel @7. “I don’t understand the premise that the President does or might need immunity from criminal prosecution for official acts.”
The idea is that we cannot have a series of tit-for-tat prosecutions of the previous president each time power changes hands. Notably, this immunity applies only to official acts, so contra the headline, burning down the capitol building would certainly not qualify. It’s not even clear which of the current Trump cases would be covered by immunity — the lower courts will have to provide clarification as to whether or not the acts in question are ‘official acts’. Note, too, that (especially following the debate disaster), this immunity is as likely to protect Biden after the November election as it is Trump beforehand.
JimV 07.02.24 at 6:39 pm
I thought that legislatures made laws and judges checked actions against those laws and against the constitution, and checked laws against the constitution. The six conservative judges of the USA Supreme Court seem to have made up new law.
This is one of the worst political acts of my lifetime, second only to Nixon sending a message to the North Vietnamese in the Paris peace talks, to not accept a peace deal with LBJ because Nixon would give them a better one when elected. I note that Nixon would not have been liable for the Watergate conspiracy under this SC ruling and would not have needed Ford’s pardon. In particular, the Nixon tapes could not have been used in evidence, and would not have been turned over to congress.
From the pundits and journalists I follow (not including Fox News or the NY Times), I have received the notion that this was the culmination of a plan put forward by the Heritage Foundation several years ago (pack the Supreme Court and use it to impose their political views on the country undemocratically).
Mike Furlan 07.02.24 at 6:53 pm
The problem is not that Trump might seize power, but that the majority of our “white” fellow citizens want to thrust that power upon him.
It isn’t the court we have to worry about, it’s your next door neighbor and what the voices in his head are telling him to do.
Lee A. Arnold 07.02.24 at 9:25 pm
I already thought the SCOTUS majority were dim bulbs, but this decision is monumentally stupid
Or a mix of intellectual incompetence and moral corruption
There are so many questions
Who decides what an official act is? Does the Supreme Court have to decide every time?
January 6th case has a hearing. Judge rules no immunity. Trump appeals to appeals court. Appeals court says no immunity. Trump appeals to SCOTUS
Is this going to happen for all the counts in the indictment?
This and the Chevron decision: the courts get all this extra work to do, & it all gets appealed endlessly
Biden should just say, fuck it, I’m forgiving everybody’s student debt, if you already paid it off then I’m giving you a rebate, who gives a shit, the education was totally worthless anyhow, & what can they do to me
Second question: What official Presidential act ever needed to be criminal?
And so on…
They get rid of Roe because it’s not in the Constitution, but make up new doctrine when it suits them
steven t johnson 07.02.24 at 10:15 pm
Murray Reiss@10 Formally, the Congress can do many things to rein in the judicial branch. But it includes such tactics as ending lifetime retire-at-will appointment; writing a code of ethics with teeth; adding more judges; revising judicial districts; setting up new kinds of courts entirely (the most recent example is a FISA court, a bitter joke indeed); specifying regulations on which and when the SF hears cases (as in, abolish the shadow docket.) There is even the possibility of impeachment—virulent opponents of Earl Warren wanted this, but the impracticality of impeachment was demonstrated by Jefferson’s attempts to use impeachment.
But the real objection is, when the Supreme Court kept obstructing New Deal legislation on dubious legal grounds (most boiled down to subterfuges to deny the legislative branch to legislate, in my opinion,) it was condemned as “court packing.” Unlike other customs, this one is deemed sacred, because the current judiciary is largely stacked. Trump more or less openly committed to using Federalist Society lists for all nominations. (And Republicans had for years blocked as many judicial appointments as possible, witness the refusal to even hold hearings on the current attorney general.) Also my opinion, the RICO statute probably applies to the Federalist Society, if there was the will to use it.
There are many people in the US who firmly believe that limitations on majority rule is freedom. Thus the courts are sacred guardians of liberty precisely because they can effectively write law.
Michel 07.02.24 at 10:31 pm
mw @ 11
Yes, but that’s the thing; such immunity isn’t necessary in most other functioning democracies. So why is it necessary in the American framework? What aspects of US governance might require the President to commit a crime, such that he would need to be immune from prosecution?
I just can’t think of a plausible scenario. And, arguably, if the President does commit a crime in office, even in an official capacity, they should absolutely be vulnerable to criminal prosecution (e.g. Bush and co. should absolutely be spending the rest of their days in prison, and that they aren’t is part of the answer to how we got here today). That’s how it works elsewhere in the world, and it doesn’t seem to pose a significant obstacle to effective governance.
Alex SL 07.02.24 at 10:31 pm
This all seems exactly correct. The far right views politics not as a system for negotiating compromises that keep enough people content to avoid civil war, but as a fight against (often imagined) enemies. They also paranoically assume that liberal centrists and leftists have the exact same view but merely are dishonest about that. If that is one’s world view, then everything goes, including, of course, a dictatorship.
As always I am interested in bad arguments, so I noted with fascination the US right-wing response on social media and in interviews to liberal outrage at the decision that a US president can do crimes without consequence and is uniquely above the law. Hilariously, it seems evenly split between (1) this isn’t what the decision said, you obviously haven’t read it and are only trying to create panic, (2) [yes, that is what the decision said, but] this has always been the case, look at how Obama drone-struck that US citizen, the court merely clarified already existing arrangements. Plus the usual wallowing in liberals being upset, but that goes without saying.
Point is, only one of the two can be true, but the right cannot even get its message straight. This is, as if needed at this point, further evidence that they aren’t arguing in good faith. They want an authoritarian state, and what they say in response to this decision isn’t argument, it is chaff. And on that note: what Mike Furlan wrote. Ultimately, you can have an order that allows the president to incarcerate his opponents without cause but a gentleman’s agreement never to use that power, or you can have a constitution that has strong safeguards against authoritarianism but an authoritarian movement takes over and simply ignores those safeguards because there is nobody left to enforce them. The authoritarian movement is the salient factor, not what it says on paper.
JPL 07.02.24 at 10:48 pm
You could of course add “… and ordering the extermination of the entire Jewish people” to your headline list of Hitlerian unlawful official acts for which the SCOTUS decision grants the chief executive immunity. In the Republican case the immediately vulnerable group would be the “illegal aliens” in the country who they’ve promised to round up and detain in large buildings.
The decision is essentially an initial (false) premise of a reductio ad absurdum that the justices seem not to have pursued beyond the initial premise. But here the consequences would unfold in the real world, not just in an argument of logic. They really seem not to have engaged in any relevant thought beyond taking on Trump’s absurd repeated assertion (not even a principle, which he is incapable of stating as a principle) that “a president has to have absolute immunity, or else you won’t have a country”, or similar utterances. So yes, no legal reasoning at all; just the use of numbers to impose a desired outcome by force, i.e., power.
As I understand it (correct me if I’m wrong), the existing constitution makes the distinction between official and unofficial acts of a President subordinate to the distinction between lawful and unlawful acts, so that cases in the category of official acts that are unlawful are, unless specifically protected by law (or custom?), subject to impeachment and prosecution after leaving office. (The former (official/unofficial) is a practical distinction, the latter (lawful/unlawful) is an ethical distinction.) What they’ve done is to invert the logical dependency relation, making the practical distinction dominate the ethical one. The position of ultimate power is now outside the governance of ethical principles. But we know that ethical principles overarch all interpersonal activity (to put it roughly); practical considerations always enter the making of ethical judgments, but ultimately ethical principles are “overarching”, while practical exceptions must be supported by good reasons. This is the central change in the governing logical structure that the decision makes, apparently without regard for the logical and real world consequences. This will create a big mess going forward, and, I would suggest, it should be reversed as soon as possible and not accepted as valid. (The rank stupidity of the apparent thought process by which the right wingers arrived at their judgment is mind-boggling. E.g., what happens to the “just following (unlawful) orders” defense that was ruled invalid at the Nuremburg trials?)
JPL 07.02.24 at 11:01 pm
BTW, that’s how one responds to the need for “bold and unhesitating action” in some category of cases: by passing laws that explicitly allow such acts only in cases where violations of ethical principles are done for good reasons, as in the case of search warrants, not by overturning the whole governing system of the rule of law principle (that all subjects (people affected) are equivalent wrt the application of the laws of the land).
mw 07.02.24 at 11:11 pm
Michael @16. “I just can’t think of a plausible scenario.”
You really can’t think of a plausible scenario where a prosecutor in partisan jurisdiction (say, Texas) would gin up a charge against Biden or somebody in his administration? Not even in revenge/retaliation for the state prosecutions of Trump? You evidently have more faith in Republican human nature than I do.
bad Jim 07.02.24 at 11:45 pm
There’s no point in trying to understanding the logic of any of this court’s opinions, because it is not the result of a process of reasoning. Instead, the majority begins with the desired result and confects a justification from constitutional scripture.
Cheez Whiz 07.03.24 at 12:21 am
Michel @ 16
“Why is it necessary in the American framework?a”
I recommemd you read the opinion. It is short by SC standards, and ismlargely devoid of the Latin incantaions used to make them sound impressive. https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
It’s a remarkable piece of work. After a list of Presidential powers and responsibilities, they conclude there is a “presumptive immunity” from prosecution. That’s pretty much it. They presume. They also go to great lengths to avoid any specificty of any kind, specifically ruling out “intent”, only declaring “official acts” are immune and “unoffical acts” are not, with agressive avoidance of a definition. Therex’s an odd throwaway line about “private papers and recordings” not allowed in any indictment, which I believe is already in the Presidential Records Act. It’s deliberately vague, like most of the anit-woke legislation passed in Florida, probably for the same reason.
JPL 07.03.24 at 12:27 am
@bad Jim”
“Instead, the majority begins with the desired result and confects a justification from constitutional scripture.”
If you’re referring to my comment above, that’s what I said they did. I was attempting to describe the logic of what they said (what they expressed), not the logic of what they thought they were doing when they said it. But how does what they expressed affect real world consequences? (Especially the consequences of accepting what they said as logically valid.)
Sebastian H 07.03.24 at 12:45 am
I’m annoyed all over the place, but there isn’t any legitimate reason to remand this decision back to the lower courts. There are no new facts to be developed under the decision, and if they need arguments the Court can just call for a re-argument. If, as seems likely, Trump wins and the case vanishes, all the particulars remain unresolved and lie around like a loaded gun on a mantle waiting for some toddler to pick it up.
Seekonk 07.03.24 at 2:07 am
If the Dems ever win another election, they should legislatively repeal Marbury vs. Madison, the 1803 case in which the Supreme Court arrogated to itself the right to determine the constitutionality of legislation. The Constitution does not give that power to the Court.
The final say on the constitutionality of legislation could be given to the House of Representatives. https://en.wikipedia.org/wiki/Parliamentary_sovereignty
Michel 07.03.24 at 4:41 am
mw @ 20:
No, I can’t think of some crime the President might need to commit in the course of their official duties.
But, as you mention it, it looks like there’s a pretty good track record of partisan hacks not going after sitting or former presidents.
Alan White 07.03.24 at 5:38 am
MF @ 13 has it exactly right. We have gotten precisely what we collectively deserve.
Ken_L 07.03.24 at 6:06 am
The decision is another indication of the gradual collapse of constitutional governance in America. It’s had a pretty good run for 248 years, much better than most other developed nations. But the collapse is accelerating, as evidenced by the Court’s recent decisions. The president’s person has been rendered almost untouchable, while the executive government and the legislature have had their ability to govern seriously diminished. The states and the federal judiciary have been the big winners, but there is a tension between them – especially between BLUE states and the federal judiciary – which will lead eventually to a confrontation.
I don’t pretend to know how it will come about, but I would bet a lot of money there will be some kind of constitutional convention in the US before the end of the century, to try to restore some workable federal system. Historically in other countries, such conventions follow in the wake of traumatic events: civil wars, coups (violent or non-), “colour revolutions”, conquest by foreign powers for example. Sadly, while it is likely that an overwhelming majority of politically engaged people might agree that constitutional reform is necessary, I can’t think of an instance where it has happened in a peaceful, orderly process. Fear of ending up worse off keeps people postponing serious negotiations until some sort of crisis makes them unavoidable.
KT2 07.03.24 at 6:08 am
@18 “(or custom?)” … “The position of ultimate power is now outside the governance of ethical principles.” … “apparently without regard for the logical and real world consequences.”
It seems 200+ years of ‘customs’ and ‘ethics’ were what kept the US on top and from another civil war. Uncodified yet all basically had custom, morals / ethics as a basis. Even if they were R, D or others.
Trump maga et al don’t do customs and ethics, and most people – including most politicians – took this for granted. Me too I now realise.
So why can’t @14 “Biden should just say, fuck it, I’m forgiving everybody’s student debt, if you already paid it off then I’m giving you a rebate, who gives a shit, the education was totally worthless anyhow, & what can they do to me”
@17 “Ultimately, you can have an order that allows the president to incarcerate his opponents without cause but a gentleman’s agreement never to use that power,” … “The authoritarian movement is the salient factor, not what it says on paper.”
So Biden can now be authoritarian without custom or ethics and as lower courts now need to clarify specific acts, which seems the only wiggle room.
I realise CTers will be amused, dismayed or see these suggestions as the gambit of a lunatic, but hey!, you lot may be ruled by a lunatic tyrant soon. So…
Couldn’t Biden:
1) declare war – plenty of options.
“Instead, Congress has the authority to determine the timing of the election, as established by a federal statute enacted in 1845. It is important to note that no presidential election has been postponed since the enactment of this law.”
( afterdowningstreet dot org
u-s-presidential-elections-during-war-what-does-the-law-say )
See below. A two year window after declaration of war
2) issue directives on official acts due to wartime powers
3) stack SCOTUS
4) waive debts on education boost healthcare dreamers aliens citizens etc up social security – placate and sweeten electorate. All communication in wartime subject to Commander in Chief. Fixing Fox etc
5) @15 “RICO statute probably applies to the Federalist Society, if there was the will to use it.”… and a few others to RICO too, and
6) force new SCOTUS case/s to entrench power on the side of angels not Mango Mussolini devils.
Yes this will be hitting them in te gookies, but the timing, and time to reverse and reset the playing field seems very important. NOW.
The US and the Constitution has been operating on ‘principles’ and custom. If Biden doesn’t whack the supremes with their own ruling – until war declared “over”. The tangerine tyrant will do above in reverese. To you, me and humanity.
To our detriment.
Biiden would have 2 years.
“Constitutional Rights in Wartime
Clauses 11, 12, 13, and 14. The Congress shall have power * * * ; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. To provide and maintain a Navy. To make Rules for the Government and Regulation of the land and naval Forces.”
https://law.justia.com/constitution/us/article-1/57-constitutional-rights-in-wartime.html
“The Senate approved a war powers resolution on Thursday that would curtail President Donald Trump’s authority to take military action in Iran without congressional approval in a bipartisan 55-45 vote.
“Trump could still veto the resolution. It would then take two-thirds of the Senate, or 67 votes, to override him.
“The House of Representatives passed a separate, nonbinding resolution last month after Trump ordered a drone strike that killed a prominent Iranian military figure–Qassem Soleimani. His decision reopened a potentially explosive debate about when presidents can use their military power without approval from Congress.”
…
https://www.pbs.org/newshour/politics/what-are-a-u-s-presidents-war-powers
“(a)Priority communications
“During the continuance of a war in which the United States is engaged, the President is authorized, if he finds it necessary for the national defense and security, to direct that such communications as in his judgment may be essential to the national defense and security shall have preference or priority with any carrier subject to this chapter.
…
“(f)Affect on State laws and powers
“Nothing in subsection (c) or (d) shall be construed to amend, repeal, impair, or affect existing laws or powers of the States in relation to taxation or the lawful police regulations of the several States, except wherein such laws, powers, or regulations may affect the transmission of Government communications, or the issue of stocks and bonds by any communication system or systems.
…
https://www.law.cornell.edu/uscode/text/47/606
Never ever thought I’d write something like above.
Unmoored from customs and ethics, anything is possible.
J-D 07.03.24 at 6:29 am
How would Canadians fight back against a lawless Supreme Court?
Tm 07.03.24 at 8:50 am
I’m pretty sure that Americans don’t like this. They like to pretend that the justice system works fairly and treats everyone equally, which of course was never true but it was claimed. Americans certainly don’t like the idea of the president being above the law. This must be offensively turned into a liability for Trump.
Americans who don’t agree witzh the idea of Trump being treated as godking (which I think is the majority) must now rally for justice and democracy.
Tm 07.03.24 at 9:00 am
Nathan: “it has just shown that it will make up principles out of whole cloth and justify the unjustifiable in order to serve their God King”
Absolutely. What has happened is nothing less than a coup d’etat by the lawless 6 Supreme Court justices. It’s not the first time they are rewriting the constitution as they wish but this is the most blatant they have done this. They have been deleting whole sections from the constritution (e. g. the civil rights amendments) and have invented ney amendments from whole cloth. Everybody agrees there is nothing in constitution or law that would grant immunity to a former president. They don’t even pretend that’s the case, they just make up what is essentially a constitutional amendment. And they leave no doubt they will do this again without restraint. Ominously it is now clear that if Biden wins and Trump contestst it based on whatever made up lies (which he certainly will), this SC will not hesitate to throw the election to Trump. This coup d’etat does indeed foreclose the possibility of a fair democratic election for the foreseeable future.
What is now necessary is to not give in to resignation. Organize and mobilize and rally for justice and democracy!
Anna M 07.03.24 at 9:53 am
While “those who matter” have mostly been exempted from consequences (de facto, if not always also de jure), formalising what was previously merely “informal understandings” (and, of course, leaving them malleable and open to “the right sort of interpretation”) will notably serve the class interests of the wealthy/powerful. In that sense, I tend to view Trump’s faux populism as being considered to be a “useful bulwark” against the liberating effects of social democracy (and, ultimately, the “threat” of a classless society). While I should be careful to note that I am not arguing everything is class, I do think what we see is largely the effects of class interests “putting thumbs on scales” to ensure that things which serve their interests tend to achieve prominence (as I previously argued in another thread, I would generally attribute much of the culture wars to something similar – though I realise some were not convinced).
Ultimately, I doubt the system will be able to save itself (I expect that, even in the best case, we would see a cascade of systemic institutional failures, as violating norms will be seen as far more catastrophic than the collapse itself, which be largely ignored), and the only real remedy (if such a thing is even possible at this point) will be on collective action and solidarity – as, to be frank, it always has been.
Akshay 07.03.24 at 10:48 am
Democrats need to support AOC’s announced impeachment proceedings against SCOTUS. If your response to the recent spate of SCOTUS YOLO outrages is merely to nag people to “Vote!”, which is always valid, you’re not taking the extremity of the current situation seriously, and your warnings will lack all credibility. Whether it works or not, a signal that SCOTUS isn’t legitimate is needed.
Sadly, these are the Dems we’re talking about, the most spineless and worthless political party in the industrialised world. They, or their donors/owners, have never wanted to do what it takes.
Ken_L@28 Surely there are many examples of gradual, or at least, non-violent, constitutional change? Many European countries have had gradual changes since 1848, it’s how we ended up with these silly constitutional (powerless) monarchies. I don’t think wars and occupations were always essential here, although of course they were for some countries, i.e. the Axis powers. The US Constitution is simply extremely hard to change, but even so, changes did happen until the Civil Rights era, not all due to Civil War.
Mike Huben 07.03.24 at 1:26 pm
KT2 @ #29 has the right of it. Some more ideas along those lines:
The problem is that the Republicans want to create a -like government which will create a . The whole Project 2025 is a blueprint for this, and has been facilitated by the recent supreme court judgments.
This is a result of an enormous, 50-year conservative project to train the populace to support conservative ideas, put conservative legislators, jurists, and executives in power with an ultimate end of changing the constitution to achieve permanent power. Hilary Clinton was wrong about “a vast right-wing conspiracy”: there have been several working together. Two major ones are the conspiracy by Christian nationalists and the conspiracy by the extremely wealthy.
According to the recent judgements, Biden does not need war powers to do pretty much anything he wants. He could “protect the Constitution” as he has sworn to from these subversive elements, either by war powers or simple executive action. He could use the plans of Project 2025 against the conservatives to destroy their power in current government, and be protected by the recent judgements.
He could simply remove opponents from office either by jailing them or killing them. If he jails enough conservative congressmen or senators, the remaining quorums could easily impeach the conservatives of the supreme court for fabricating supposedly constitutional decisions, ignoring stare decisis, and lying about their intentions and beliefs during confirmation. Then, of course, he could fast-track new confirmations. Lower courts as well, adding the cause of being unqualified. He could reduce the supreme court below the 6 member quorum, both protecting himself and forcing appointment of non-right-wing judges.
A new Supreme Court could reverse the harmful decisions of the past several years, including the powers that legitimated Biden’s actions. Cases could be rapidly generated, accepted, and ruled on. Alternatively, he could arrange a Constitutional Convention as the right wing has been trying to do for the past few decades, and dictate the changes needed.
The right-wing money apparatus that has fueled this massive propaganda and subversion effort could also be defunded, starting with confiscation of the riches of right wing corporations, billionaires, and foundations. This is no different than what the founders did with British supporters.
Conservatives at all levels could be removed from their positions for supporting Trump, Project 2025, opposing abortion and hard-won civil rights, being sponsored by the conspirators, etc.
After that, Biden could resign taking full responsibility for these actions and allow his VP to take over. Hopefully after installing more protections, checks, and balances so that this will not recur.
All this could be done quickly, before or after elections. If Congress won’t go along with this, he could privately threaten to include them in the turnover or to execute the conservatives he has captured.
As Biden and his staff are astute politicians, they can probably think of less draconian methods than I can, but all of this could be accomplished. None of this is worse or much different than what Trump and the conservatives are threatening: it would be nice to see them hoist by their own petard.
steven t johnson 07.03.24 at 3:41 pm
Since Trump has never won a popular vote, it is entirely unclear why the people as a whole should be condemned for pushing Trump into power. If one wishes to convict them of pre-crime a la Minority Report (which is SF not a documentary) the precedent of 2000 and 2020 powerfully suggests the election will be characterized by many shenanigans. I think the conviction of moral treason of the entire population is debatable.
It seems to me discussion probably would be more in depth including the decision reversing the Chevron precedent. Then we easily see I think how much of this is a return to the Lochner era. The long-term project of undoing the New Deal has has led to an return in slightly different form to the die-hard opposition of 1936.
There are three things to realize about Biden I think. First, Biden, ex-senator from MBNA, is indeed a loathsome figure because he has continued so much of Trump’s policies. For instance, the war against Iran restarted by Trump’s exercise of the exit clause Obama left in JCPOA may be mostly economic warfare against the Iranian people as a whole, but that’s still war.
Second, I think BIden should be officially dubbed President Band-Aid because his attempts to reform are invariably insufficient. He’s like a kindly grandpa who pats a kid on the head, then offers a cookie and a band-aid. But it doesn’t matter if the kid has just lost a limb or has leukemia. All efforts by Biden to service the people are limited to gestures that will not cost too much, will not require too much from the owners. Even the government aid while they still cared about Covid was limited by the insistence on massive giveaways to businesses, largely disguised as the Paycheck Protection Program. By an irony of history, even the titanic military budget is just a band-aid. It is a joke compared to the real needs of the war against Russia/Palestine/Iran/PRC/Cuba/Venezuela. We are already started on a hybrid version of WWIII and that costs real money. But Prez Band-aid can’t even now conceive of inflicting a war economy on the master of wealth.
Third, all factions of the MSM have turned against Biden. It’s not just the band headed by Fox News anymore. After Afghanistan, the owners turned against him. That’s why the demented wreck image initiated by Trump has gained so much traction. Trump also was demented in his debate. The claim Democrats are murdering babies in their hospitals alone was insane. The spectacle of people crying out Genocide Joe is edifying in one sense (I’ll say no more ) but not when Trump madly accuses Biden of merely giving the IDF a band-aid.
The relevance of this is due to the partisan nature of this decision. Trump apologists in my personal experience simultaneously argue that such decisions doesn’t matter to ordinary people and that it actually serves the cause of justice, somehow. People may admit to not caring about politics, but politics cares about them. I think this bitter truth is why there is such a cultivated disdain for “politics.” Cheap cynicism about “politics” is far better than the dread prospect of the masses engaging in politics. The winners can always interpret sullen indifference as tacit consent. But that takes us back to the folly, as I see it, of indicting the people for voting in Trump when he’s never won a popular vote.
Seekonk@25 proposes legislation explicitly denying the right of judicial review to the Supreme Court. This is impractical in several ways. Even if laws could be written in a completely coherent manner that sufficiently addressed all probable issue (a rather large claim I think) experience shows that despite or because of the large number of lawyers, Congress simply hasn’t the skill. There were a bunch of lawyers in the Constitutional Convention too. But the legal incompetence that so quickly led to the Eleventh and Twelfth Amendments demonstrates the problem.
It was almost the custom for presidents to limit the use of the veto, given the presumption that legislation represented the will of the people. Hence, it was often the case early presidents justified veto of what they deemed unconstitutional actions due to a lapse in the people’s judgment. Legislation stripping the right of constitutional review from the Supreme Cesspool would lead to the president attempting to exercise this right.
The further suggestion such supremacy be vested in the House suffers from the existence of both the Senate, a rival for the power and the states. An amendment depriving the Senate of legislative powers, turning it into a court of impeachments, pardons, and debate might work. But would it fly? Lost Cause ideas may currently eschews shameless neoConfederate dress, but they remain. They even appear to be getting stronger. The states, laboratories of corruption (not so much democracy in my view) will contest a national body. Indeed that’s why Supreme Courts liberal and conservative have been so committed to limiting the scope of the Civil War amendments so far as I can tell.
Last note: Project 2025 is a convenient tag. Trump isn’t even as good an administrator as the comatose Biden, as his term proved to us. That’s why the lists of personnel that are a discreet part of the scheme are apt to play in the end a major role. (As I understand, fundraisers for Heritage liked to boast Reagan carried out 60% of their ideas back in the day.) But outfits like this, despite use of the misleading acronym PMC are not independent conspiracies. They are in a sense fiduciary agents, doing donkey work of actually thinking* for their donors. The ultimate problem is not that the bestial rabble are pushing their God Trump into power, it’s that the owners are pushing Trump.
*The wealthy, despite self-flattery and claques, are not notable for their intelligence and hard work. In practice almost all ideology is petty bourgeois, because the bourgeoisie as a group finds it hard to make up their own.
nastywoman 07.03.24 at 5:23 pm
and that really needs a response:
‘The ultimate problem is not that the bestial rabble are pushing their God Trump into power, it’s that the owners are pushing Trump’.
Some of them do BUT the problem is -(like it was in Hitlers case) that ‘the bestial rabble’
(not our words) are so… let’s say –
numerous?
nastywoman 07.03.24 at 5:28 pm
and isn’t it… ‘strange’?
that in contemporary Germany some political dude who would run by claiming that he has some kind of immunity -(for his crimes)
NEVER EVER
would be… erected to any ‘political Führerrolle’ –
BUT
in America it suddenly is possible?
What is wrong with THE HIOMELAND?
LFC 07.03.24 at 7:07 pm
I’ve read much, though not yet every word, of Roberts’s majority opinion, and it’s clear that the distinction between “official” and “unofficial” acts now becomes extremely important. Roberts gives lower courts a little bit of guidance on how to draw that distinction, but not very much guidance.
What this means, or seems to mean, as a practical matter is that the case will go back to the district court, where the judge will have to decide which of the acts charged in the indictment are “official” and which are “unofficial.” Trump’s lawyers will then likely appeal Judge Chutkan’s decision. This will of course take a lot of time, and by then Trump may be in the White House and his Attorney General might well have ended the whole prosecution.
Roberts purports to be concerned that a President’s “vigorous” and “energetic” performance of his/her job will be put at risk if the Pres. knows that he/she can be prosecuted for official acts after leaving office. Roberts says, in effect, that he’s unwilling to trust in the “good faith” of government prosecutors to avoid this result. That, of course, is a not-so-veiled insult directed at government prosecutors who, Roberts implies, can’t be trusted to discharge their professional obligations properly. (I assume the dissenting opinions make this point, but I haven’t really read them yet.)
Alex SL 07.03.24 at 11:26 pm
Two themes that have come through in this thread are suggestions for alternative constitutional arrangements for the USA and the irony of how the recent decision potentially empowered Biden.
Regarding the former, that is all very nice in theory, but we all know that there is no plausible path to a reform of the political system of the USA without first moving through societal collapse or at least another civil war. The very reason why reform would be needed is that the people who would fight tooth and nail against such reform have become so powerful and entrenched that reform is impossible.
Regarding the latter, we all know that Biden isn’t going to make use of the powers the supreme court hands the presidency, and the supreme court knows this too.
steven t johnson,
Completely agree with the band-aid presidency. But it isn’t just Biden, it is endemic across North America, Europe, Australasia. There is a ratchet in place where the right wing deregulates, cuts taxes on the rich and large corporations, dismantles environmental protections, and suppresses wages, and every few elections the nominal centre-left gets in and does nothing to substantially reverse any of that. The next country to experience that dynamic will be the United Kingdom.
Regarding the voters, we’ve gone around this before, sorry. Yes, there is no collective responsibility falling onto people voting against Trump if, say, the result is Trump 44% to Biden 40% (just picking one recent poll at random) but the former wins only thanks to an absurd electoral system despite not having a majority. Even less so if the result is Trump losing the popular vote but winning via the absurdity that is the electoral college.
But there is no getting around the fact that this still means that 44%, tens of millions of people, look at a convicted criminal, an obvious fraud, somebody who cannot formulate a coherent thought during his rallies, somebody who is infamous for being disloyal and entirely selfish, and think, I will have me some of that, this will be a great steward of our nation. This is very close to half the voting population! Some polls even have him at 50%! That is a problem that can’t simply be memory-holed because it is “arrogant” to call millions of voters hateful, part of a cult, or uninformed. Sometimes, that is simply what they are.
Circling back to the band-aid presidency, the problem is, unfortunately, also broader. It is no accident that the nominal centre-left never does anything proportionate to the problems we face, because voters only vote them in when the promise not to do anything serious. Australian voters rejected Shorten as too radical on housing, so they got Albanese, who does little except approve coal mines right left and centre. UK voters rejected Corbyn for being too radical, so they will get Starmer, who has promised not to do anything that would improve the UK economy. Germans could vote for the Left, and the French could vote for Melenchon, but neither do in sufficient numbers. So, Scholz and Macron are the best they will ever get, and then comes disillusionment. “We’ve tried nothing and we’re all out of ideas.” At least the USA have the excuse of having a two party system by design, making it nearly impossible to push from the left without handing the presidency to the right, but voters in a proportional representation system don’t have that excuse excuse when they consistently vote against their own economic interests and against any policies that would keep most of the planet habitable for their grandchildren.
steven t johnson 07.04.24 at 12:39 am
For once I understood a nastywoman comment. The implication @36 Hitler came into power by winning the majority is worth a little bit of time.
Von Schleicher, a group nicknamed the Keppler circles, von Papen, von Hindenburg invited Hitler into a coalition government, which included a Rupert Murdoch of the day, Hugenberg. It was not a because Hitler won the majority. The Nazis won 280 seats, about 37% of the vote in July 1932. But in November, when the internecine political crisis forced new elections, the Nazis lost 34 seats, vote share dropping to 33%. Even worse, the SPD lost share to the Communists, who won a hundred seats, vote share 17%. Enlisting Hitler as a partner may even have seemed easier precisely because he’d peaked, but still had enough parliamentary clout to fight the Communists and those Socialists no longer interested in Blutmai festivities.
In the upshot, after the Reichstag fire, even with massive financial support from big business (admitted even by the likes of Henry Turner Ashby if I remember correctly,) two emergency decrees from von Hindenburg permitting such electoral help as the arrest of some 4 000 Communists and street violence, even then the Nazis won just 288 seats, vote share about 44%. But the Communists, who still won about a 100 seats, vote share about 12% nevertheless, couldn’t take their seats as they would face arrest. The Enabling Act of late March 1933 contributed immensely to the irrelevance of the minority status of the NSDAP.
It is religious dogma that the rise of Hitler was either the Communists fault or the people’s fault, or somehow both, but is any of these anything more than popular mythology?
J-D 07.04.24 at 1:01 am
In theory, the Constitutional possibility of impeaching Supreme Court Justices exists as a check on their power. In practice, under current circumstances, there’s no chance of getting a majority of the House to agree to it (and if there were, there’d be no chance of getting sixty-seven Senators to convict)–not that this is a conclusive argument against initiating the process, noting the fact that–
–the Democrats, however much you despise them, did vote to impeach Donald Trump, not once, but twice, even though they knew there was no chance of conviction, because they still thought it was the right thing to do.
Ken_L 07.04.24 at 6:00 am
Akshay @ 34 I wasn’t suggesting every other country has had some kind of traumatic event. My point was that (a) the US pretty obviously needs fundamental constitutional reform, but that (b) history suggests it will take some kind of traumatic event to trigger it. Yes there are countries – not many – where incremental change has occurred over the centuries without a lot of drama, but that doesn’t seem to be an option for America. The moment one party suggests even the most modest constitutional amendment, massive forces combine to oppose it.
Tm 07.04.24 at 7:05 am
str 41: It is an old hat that the Nazis never actually won a majority in a meaningful election. They needed, and received, the support of other right wing parties to gain power, and that is (or maybe has been until recently) generally understood as the biggest lesson from the Nazis’ rise to power: don’t make a pact with the fascists, keep the firewall between democratic parties and antidemocratic parties strong (the Nazis weren’t the only antidemocratic party on the right, of course). The situation in 1932 was however that there was no majority for the pro-Republican parties. A clear majority of voters had supported parties that wanted the Weimar Republic destroyed. In that sense it’s not accurate to say that voters had nothing to do with the outcome.
Tm 07.04.24 at 7:24 am
The mainstream media reaction to the ignominious SCOTUS decision is puzzling. They face the prospect of Trump, who hates the press, becoming president again with a free hand to engage in full authoritarianism with full immunity and the blessing of the highest court. Yet mainstream journalists seem completely oblivious to the likely consequences. They don’t seem to have any self-preservation instinct. Amazing.