This editorial comes to you from a place devoid of hope;. It will offer you none. What's needed now isn't false hope but a clear-eyed assessment of where some things stand.
In ending one long tradition, the U.S. Supreme Court just ended another.
When, a few years after being driven from office by the Watergate scandal, disgraced former president Richard Nixon sat down with David Frost for a series of interviews, he made an extraordinary remark about his own view of presidential power: "When the president does it, that means it is not illegal." It became a very famous quote, an "I Am The Law" assertion of royal prerogative by the former president of a system of government explicitly created to repudiate such prerogatives. One could trot it out as exemplary of a particular out-of-touch criminal who'd let the height of his office go to his head, repeat it with a chill at how far gone someone can get under the corrupting influence of power or rattle it off with a mordant chuckle at a fool who, sworn to uphold a system in which no one is above the law, came to believe himself above the law. Everyone who repeated it over the years and canonized it as a classic reference-point was of one mind that what Nixon had expressed was a place we never, under any circumstances, wanted to go.
Thanks to the Supreme Court, those people don't have Nixon to kick around anymore. It can't be said that in Trump v. United States, the court just enshrined Nixon's words into U.S. law because the ruling is, by definition, a lawless one. What the court did, rather, was impose Nixon's stated principle as the status quo. In a repudiation of the entire American experiment, the court took the occasion of the nation's upcoming 248th birthday to rule that the President of the United States is now, in effect, above the law. That tradition that no one is above the law--a lot longer one than jabbing at Nixon for his failure to understand it--is now over.
Former president Donald Trump sent his comical excuses for lawyers into court to argue that presidents can order SEAL Team 6 to murder their political rivals and had "absolute immunity" from prosecution for this and any other action taken while in office, unless they were first impeached then removed from office by congress. Since the same president could then order the assassination of sufficient members of congress to prevent any such impeachment, the "absolute" in that "theory" is just that. The argument was entirely frivolous, not only without any basis in U.S. law, practice or precedent but fundamentally contrary to the entire constitutional order and Trump advanced it solely as one of many delay-tactics aimed at saving his own hide in the face of multiple prosecutions.[1] It was laughed out of the District Court, then a 3-judge panel unanimously laughed it out of the D.C. Court of Appeals. That the Supreme Court even took the case would, under any prior court, be regarded as shocking. In a sign of how badly the court has fallen, a majority of the justices, when it was argued, seemed amenable to immunity.
The final ruling was 6-3. Five of the six had been appointed to the court by presidents who, in their elections, lost the popular vote then were placed in office by the electoral college; three of those five were placed on the court by the very former president who had brought the case and who, when he'd lost his reelection bid, undertook numerous criminal actions to try to stay in power and even sicced a terrorist mob on congress to try to overthrow the results. The sixth, Clarence Thomas, has, in recent months, been exposed as a corrupt slug who, for the whole of his long tenure on the court, has been leveraging his position for a lavish lifestyle financed by right-wing billionaires; rather than facing impeachment and prosecution, he's being left to hear and rule on cases like this, stemming from Trump's efforts to undo the results of that last election--efforts in which his own wife was involved.
In the court's ruling, that majority invented an expansive presidential immunity for all "official acts." If a president is using his "official" powers, no matter how corrupt the end to which he's using them may be, he is, according to this majority, above the law. The majority ruled that presidents would be hindered in the performance of their duties if they thought they faced criminal prosecution; no concession to the fact that every president in U.S. history right up until Monday has done his job under that same "constraint." While the court rejected Trump's claim that presidents couldn't be prosecuted unless first successfully impeached and removed, the immunity it has invented is more expansive than anything even Trump requested. While it allows that "there is no immunity" for "a President's unofficial acts," it held that "in dividing official from unofficial conduct, courts may not inquire into the President’s motives... Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law." In short, corrupt acts by presidents are still crimes; it's just that presidents may no longer be held accountable for committing them. Trump's lawyers argued at every stage of this case that a president's use of SEAL Team 6 to murder political rivals could, in their
formulation, be considered "official acts" for which the president enjoys immunity. For no other purpose than to save a protofascist dimwit from the legal consequences of his own actions,[2] the U.S. Supreme Court just agreed.[3]
That's what the Supreme Court just did to us, in a decision that instantly joins the ranks of the worst in the court's history. Everyone who, on
Sunday night, went to bed as a United States citizen awakened Monday
morning as, instead, the subjects of a monarch. The damage this ruling inflicts is incalculable. The narrow focus of the corporate press, which has almost entirely concerned itself only with how this negatively impacts the current prosecutions of Trump, only highlights that institution's complete failure as a bulwark of liberal democracy.
There isn't much hope of fixing it either, at least institutionally. No constitutional amendment correcting it would ever come close to passing as long as the result of reversing it would be the prosecution of the far-right's personality-cult leader. Fixing the court by expanding it should have been the Democrats' top priority after 2020, but Joe Biden opposes this. There are some other reform options but no one in Bidenworld is even talking about any of them or is ever likely to do so.[4] Biden and his presidency are spectacularly unpopular, and he has ignored the long-stated wishes of Americans and even most of his own party's voters in insisting on running for reelection. In the unlikely event he should win, that would just ensure four more years of not fixing the problem while the court continues to chainsaw civilization. But Biden's cognitive decline--papered over for five years by a systematic campaign of fraud by Dem elites and corporate press outlets but so dramatically displayed for all the world in last week's presidential debate--makes it even more likely he'll lose, and we'll be stuck with Trump while this continues and while Trump works to make it worse. Some Swiftian wags have circulated the meme-ified modest proposal that Biden immediately alert SEAL Team 6 that there's a Republican candidate and some Supreme Court justices who need to make their acquaintance. That ain't happening.
There are, at present, no good options. No way of sugar-coating it, this is as bleak a situation as the U.S. has faced in a very long time, and there isn't even any light visible at the end of this long, dark tunnel in which we're trapped. For those of us who, large and small, have been vainly ringing the alarm about all of this for so long, it's maybe an even bigger drag. The failure of our institutions to properly react to any of this just reinforces the dysfunction that leads so many to have--and rightly have--so little faith in them. If Nixon was still alive, it would only be for as long as it took him to laugh himself to death.
--j.
---
[1] During Trump's 2nd impeachment trial, Trump's own lawyers had argued exactly the opposite as they were in this case.
[2] And make no mistake, had the former president being prosecuted been a Democrat, the court would have made the opposite ruling by a vote of 9-0.
[3] The majority ruled, in effect, that the constitution is unconstitutional. Article 1, Section 3 of the constitution provides that officials can be impeached for "treason, bribery and other high crimes and misdemeanors," and says that officials who are impeached and removed from office "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." The courts ruling means that a president who is impeached and removed for, say, taking a bribe in exchange for an "official act" can't be prosecuted for it, as that would require examining his motives for that act.
[4] On Monday, Biden roundly condemned the ruling, which could, if managed properly, be a political gift but, being Biden, he offered no proposal to fix either it or the out-of-control court, no vow to even try. Instead, he just used it as propaganda for himself, saying he should be reelected so that Trump won't have that unrestrained power.
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