I wrote last week about how the Supreme Court’s conservative majority has put its thumb on the scales of justice in favor of Donald Trump and the indictments he faces for attempting to subvert the 2020 election. At a minimum, by ostentatiously and unnecessarily doing a deep dive into questions of presidential immunity, the Court is ensuring that Trump’s trial will not conclude — nor very possibly even begin — prior to November’s election. This would deny the American public a verdict as to whether the president indeed engaged in criminal activity; nearly as destructively, it would hide from view the evidence that Justice Department prosecutors have amassed around the former president’s attempted coup that in itself should be available to voters.
But in appearing to entertain the most outrageous claims of presidential power made by Trump’s lawyers, the conservative justices demonstrated sympathy for concepts that would transform the president into an unchecked king — able to assassinate rivals, defy court rulings, and disregard Congress. Instead of concentrating on the case at hand — Trump’s attempt to discard the election results — they expressed concern over theoretical future presidents who might be unduly constrained by the possibility of future prosecution. This line of thinking led to Justice Samuel Alito’s nonsensical but ominous musings that future presidents might have an incentive to commit crimes to remain in office in order to avoid prosecutions once they’re out of power, and so maybe it would be better to simply give them license to abuse their power in the first place lest they be tempted to abuse their power.
Ladies and gentlemen, the keenest legal minds of the land at work! It is perhaps best that mere citizens try not to look too closely at the glory of their insights, lest the celestial brilliance make us go blind.
Peer beneath the gobbledygook, though, and you see a more straightforward logic: justices grasping for a rationale to help a president of their own party regain the White House, and to aggrandize his powers once he does. Put in the harshest possible light, you might say that the conservatives on the Supreme Court appear interested in joining the insurrection which Donald Trump started after he lost the election, and which he’s never fully abandoned. But even if you cut them a little slack, and allow for argument’s sake that the Court really is interested in higher principle and not at all in sweeping an attempted coup under the rug, you can plainly see how the conservative majority is helping to structure and re-interpret settled law in order to help Trump back into power. They are providing the legalistic cover for a campaign that needs to obscure the president’s criminality from the American people in order to maximize his chances of regaining the White House. In doing so, as I pointed out previously, the Court has made clear that defense of American democracy will require major reforms of the Court to curb the power of a conservative majority whose allegiance is not to American democracy, but to Republican rule.
A recent piece by Michael Podhorzer provides a timely overview of what’s gone wrong with the Supreme Court and the urgent need to address this crisis, charting (very literally, in this case, as he makes use of multiple graphs to illustrate his argument) the growing partisan nature of the Court, as the extremist Federalist Society has been increasingly successful in getting its approved judges appointed to the nation’s highest Court. In doing so, Podhorzer helps us shake off an all-too-easy myopia that overly views the Court in the context of Donald Trump’s past and future presidencies, and reminds us of the longer-term battle going on over the shape and direction of American society. As he puts it, “While it’s accurate to say that the Court is protecting Trump, doing so misses greater stakes, and obscures the motivations of at least a few of the Federalist Society justices, which is to secure for at least a generation what could eventually be called the Dobbs Court.” In other words — as much as the Court is acting to protect Trump, the conservative majority sees Trump as a means to its own political ends. Such ends include the pro-business, pro-Christian agenda of the Federalist Society, and would more broadly advance a reactionary vision of America shared by millions of conservative (and overwhelmingly white) Americans who may well never even have heard of the Federalist Society, but who would agree with its objectives if they had.
Podhorzer rightly identifies the Court’s increasing position as a power center that evades democratic accountability and usurps the roles of our elected branches of government:
Since the Federalist Society was founded in 1982, the Court has transformed from an imperfect arbiter of genuine controversies to an agenda-driven, unelected lawmaking body whose decisions have systematically been opposed by the majority of Americans [. . .] Federalist Society majorities have acted with ever-increasing impunity to leverage the power granted to them by an ever-diminishing proportion of Americans, as reflected by the presidents who nominate them and senators who confirm them. Thus, it’s long past time to stop covering the Court as if it is anything other than an unaccountable super-legislature enacting an unpopular revanchist agenda.
Addressing the Court’s interest in protecting Trump and advancing him to the presidency, Podhorzer notes that a second Trump administration wouldn’t just advance the politics the Court majority is interested in merely in a general sense. Rather, the conservative majority understands that the Court’s own continued power to deeply shape American politics will require a Republican president to appoint conservative successors to the one or more justices statistically likely to retire or pass over the next four years. As he puts it, “It’s difficult to believe that the Federalist Society justices delaying the J6 trial were ignorant or indifferent to the fact that the success of their life’s project is on the line in November.” It’s worth stopping for a moment to consider how truly shocking this observation is. Not only is the Court acting in a blatantly political way — looking to protect its own political goals and aggrandize its own power — it is openly willing to pervert its interpretation of the law in order to achieve these ends. If the Court’s efforts succeed, and the conservative majority provides the margin of victory for Trump, then it’s vital to remember that long after Trump is gone from the scene, an ultra-conservative Court may well endure. If this isn’t corruption, then nothing is.