Though a ruling is still some time off, last week’s oral arguments before the Supreme Court regarding Donald Trump’s claims of presidential immunity showcased a conservative majority intent on allowing the former chief executive to evade trial and accountability prior to the November elections. As others have noted, conservative justices went out of their way to set aside the actual crimes of which Trump has been accused, and to engage in abstract discussions that demonstrated a lack of interest in confronting the true matter at hand — a lawless former president who attempted a coup and now seeks the presidency a second time, apparently in large part to defeat the various legal efforts to hold him accountable for his many crimes.
The proceedings provide a flashing alert that Donald Trump, three years out of office, continues to crash through democracy’s guardrails. For those who who sincerely believed that he would surely be prosecuted for his insurrectionary activities at least before the next election (and I count myself among them), they are a dark reminder that the justice system — in toxic combination with a slow-footed and overly deferential U.S. attorney general — is simply failing in its responsibility to protect vital public interests.
We got a stunning inside look at the lack of concern over Trump’s insurrectionism from the judiciary’s highest court — certainly confirmation that the conservative majority sees no urgency in letting play out, one way or another, the devastating allegations in special prosecutor Jack Smith’s indictment against Trump. Never has a president been accused of such dire offenses against the rest of us. And yet several justices seemed sincerely interested in considering the question of whether a U.S. president might actually be immune from prosecution for crimes committed in office — despite the fact that such a position is tantamount to annointing the president as a dictator. Adam Serwer summarizes the consequences of such thinking:
Trump’s legal argument is a path to dictatorship. That is not an exaggeration: His legal theory is that presidents are entitled to absolute immunity for official acts. Under this theory, a sitting president could violate the law with impunity, whether that is serving unlimited terms or assassinating any potential political opponents, unless the Senate impeaches and convicts the president. Yet a legislature would be strongly disinclined to impeach, much less convict, a president who could murder all of them with total immunity because he did so as an official act. The same scenario applies to the Supreme Court, which would probably not rule against a chief executive who could assassinate them and get away with it.
And yet, despite these absurdly anti-democratic implications of Trump’s legal arguments, Vox’s Ian Millhiser concludes that “the striking thing about Thursday’s argument is that most of the Republican justices appeared so overwhelmed by concern that a future president might be hampered by fears of being prosecuted once they leave office, that they completely ignored the risk that an un-prosecutable president might behave like a tyrant.”
Whether that sort of worst-case ruling comes to pass (i.e., presidents are actually kings!), readers of Supreme Court tea leaves like The American Prospect’s Harold Myerson saw in the direction of other questioning that “the Republican justices are likely to send this case back to the federal district court whence it originated, requiring the judge there to rule which of the charges brought against Trump pertain to his presidential duties and must therefore be dismissed, and which do not.” In other words — a delay likely to push the president’s trial past the November election. This will not just deny the public a verdict that could demonstrate, beyond the shadow of a doubt, that the GOP nominee is a treasonous insurrectionist under the judgment of the law and not just under the plain reading of the facts and common sense. As Greg Sargent points out at the New Republic, such a delay would also prevent the public from learning, via the trial, various crucial facts about Trump’s efforts to steal the presidency that Jack Smith has collected during his investigation, which in themselves could have a profound effect on the election.
And this gets us to what needs to be stated plainly: a Supreme Court majority that delays Donald Trump’s trial until after the election is a Supreme Court that is at a minimum aiding him in his cover-up of damaging information. But I think we can go a step farther and say that in assisting Donald Trump, the conservative majority would be making his victory more likely — the result of which would undoubtedly be Trump’s dismissal of the charges against him, whatever corrupt actions that might require. Their ultimate opinion, when it arrives, must be judged in this light.
I’ll ante up here and say that the damage is already done, at least as far as the current Court’s at-least-theoretical role in defending democracy. As David Kurtz writes in a damning piece at Talking Points Memo recounting the broader failure of U.S. institutions to hold Trump to account:
The conservative justices had an opportunity to rally to the defense of democracy, to gird the system against further attack, to righteously defend the rule of law, and to protect its own prerogatives and powers against a wannabe tyrant who is counting on them to be his supplicants. They could have drawn a sharp line. They could have summoned indignation and outrage. They could have overlooked their partisan priors in favor of principle – or more cravenly in favor of self-preservation. With the possible and limited exception of Justice Amy Coney Barrett, they did none of that.
They failed in the worst possible way at the most crucial time.
I absolutely share Kurtz’s bitter assessment — the conservative Court’s behavior, in this instance and so many others, represents an outrage upon the American public. Its corruption is dispiriting and gut-wrenching. At the same time, the Court’s bare display of complicity with the Trump-GOP authoritarian project may yet become a crucial pivot point, as its public meaning is not yet solidified. As a first step, I would say that it’s far better to be aware of the reality of where the Court stands in the fight for democracy than to mistakenly rely on it for future defense.
Not only this — in allowing Trump’s lawyers to argue in favor of nonsensical and hideous powers like the president’s ability to assassinate political opponents, and in broadcasting uncanny indifference to Trump’s actual insurrection, the Court has delivered the democratic majority a powerful shock to the system — a shock that should encourage citizens to understand the clear stakes of the 2024 elections. People need to vote, and get their friends and neighbors to vote, and make sure elections officials are given the maximum protection from right-wing extremists seeking to bully and disrupt vote counts.
The Court’s apparent willingness to abet an insurrectionist in his return to the White House might not feel as dramatic as the evisceration of Roe v. Wade, but it broadens our sense of the threat its conservative majority poses — not just overturning fundamental rights, but working to prevent Americans from electing leaders who might defend and restore those rights (a point New York Times columnist Jamelle Bouie has made in this piece and elsewhere). And so the Court’s behavior here can also be used a cudgel to fight a mounting anti-democratic tide on the right more generally, as it illuminates how the GOP’s antipathy to democracy extends far beyond Donald Trump, to encompass even the supposedly above-it-all Supreme Court and a GOP establishment that has thrown in with his quest for power at all costs, majority rule be damned.
But it’s not enough for individual citizens and organizations to craft a narrative of a ruthless GOP willing to set aside democracy itself to regain power and order American society according to its preferred medieval and racist view of the world. As America’s remaining major pro-democracy party, the Democratic Party, too, has not only tremendous incentives, but an overriding obligation, to call out the Court for its apparent intention to aid Trump’s re-election campaign and to lay the groundwork for a lawless second Trump presidency.
Brian Beutler has been arguing for years that the Democrats need to be far more confrontational in their political battles with the GOP, and he urges the same around the immunity case, writing that, “Democrats [. . .] are the presumptive victims of Supreme Court corruption—the goal of delaying Trump’s trial is to help the GOP in the election—but they are also, at least in theory, the only people in the country with the power to impose consequences on the justices if they ride to Trump’s rescue and he loses anyhow.” Not only would this alert the public to the stakes, it would also stand some chance of letting the Supreme Court majority know that their outlandish, pro-authoritarian behavior will be met with pro-democratic consequences, up to and including expansion of the Supreme Court to balance out the GOP hacks who constitute its majority.
Beutler also points out that Democrats can throw their weight around more without pressing the Court to reach a certain conclusion, opining that, “It’d be worthy of Democrats to point out that Republicans are serving up lies to exempt Trump from accountability. This would in no way obligate Democrats to opine on the correct verdict. All they need to do is establish that delay equals coverup.” Such positioning would be a win-win for Democrats: in the best case by thwarting the most dangerous Supreme Court ruling, and in the worst, by setting the public stage for excoriating and ultimately rolling it back (Beutler elaborated some of these points in a subsequent piece that can be found here).
Again and again, though, Democrats and the Biden administration have shied away from a more aggressive approach to the Republican Party, even as the GOP has openly transformed into an authoritarian juggernaut. It’s fair to ask if that approach still makes sense (if it ever did) when the GOP presidential candidate has literally argued before the Supreme Court that presidents have dictatorial powers — a position which would not only absolve Donald Trump of his many prior crimes, but that showcases his lawless vision for a second term. It’s also fair to ask whether that restrained Democratic approach makes sense when an extremist right-wing Supreme Court listens to such assertions with apparent sympathy and signals that it would be no more than a rubber stamp for whatever deranged actions Trump might take if he returns to office. With the next president facing fair odds of being able to appoint one or more justices to the Court, rarely if ever has there been such a proper time to make the case for Republican extremism and the centrality of the Supreme Court to that extremism.