One might have thought that after the political upheaval caused by the Supreme Court's reversal of Roe v. Wade, the conservative justices would feel that it was the better part of valor to play it cool for a while and let the smoke clear before they launch into another radical assault on American jurisprudence. But apparently, taking away established rights for half the population was just a warm-up act. Last week, they signaled pretty clearly that they're prepared to enshrine an imperial presidency into the U.S. Constitution.
First, we were all treated to the sickening spectacle of the five conservative men on the court batting around ideas about how many organs need to be failing before an emergency physician can step in to save a pregnant woman's life. You see, they value the rights of states, a government entity, far more than they value the rights of individuals. Well, individual women anyway. It was obvious that at least four of the justices are fully prepared to say that any yahoo in a state can override the federal law against allowing people to bleed to death in an ER. We'll have to see if they can get one of the others to join them in this grotesque display of callous indifference to the suffering of pregnant patients and their families in their worst moments of distress.
The hotly anticipated immunity case argued the next day really brought home just how far gone the high court is. As you know, Donald Trump has severe psychological problems that make it impossible for him to admit that he has ever lost or done anything wrong. To preserve the fragile hold he had on his psyche in the wake of his loss in 2020, he concocted a fantasy in which he won and cast himself as a big hero exposing the rigged election by the other side. He went so far as to plot a coup and incite an insurrection in a vain attempt to wrest back power and in the process broke a bunch of laws for which he is now being held to account. Naturally, he cannot accept that so he and his lawyers have come up with a novel legal defense in which they claim that a president is immune from the rule of law.
Trump's argument is quite explicit:
Coming from the man who routinely accused former President Obama of committing crimes and demanded that his Justice Department investigate, that's pretty rich. (And you have to love the way he slides his belief that police officers should be immune as well in there. It's an authoritarian smorgasbord.)
Everyone has always understood that presidents are subject to the rule of law once they're out of office. In fact, it wasn't until 1973 that the Justice Department's Office of Legal Counsel found it necessary to write a department policy against indicting a sitting president under the assumption that it would interfere with his or her duties while in office. We've mercifully not had to deal with that except in the cases of Richard Nixon, who was pardoned, and Bill Clinton who took a plea deal and gave up his law license for five years, which clearly indicates that their understanding was they had legal liability for the crimes of which they were accused.
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That's all in the past. Today we have a former president accused of very serious crimes who contends that he must be given total immunity. And if he doesn't get it? Well, we'd better hope that he doesn't win the presidency again because unless the court gives presidents total immunity, Joe Biden is going to jail:
That can't be read as anything but a threat. (Nice little country you have here ... ) Yet I had no expectations that the right-wing Supreme Court majority would act with restraint on this issue. Bush v. Gore cured me of faith that they have any integrity when a presidential election is on the line. But going into the Supreme Court arguments last week, I think most legal scholars expected the court to be at least somewhat disdainful of the idea that a president must be allowed to be a criminal or he can't do the job. But it turns out that at least four of them, and possibly even six, are quite open to the idea. Justice Samuel Alito went so far as to turn the whole case inside out and upside down by stating:
“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
I'm pretty sure that ship sailed on January 6, 2021. But what that comment, and others made by the right-wingers on the court, shows is that they've bought into Trump's Big Lie that the prosecutions of Donald Trump are partisan exercises brought by his "bitter political opponent." And they are clearly prepared to use their own vast, unaccountable power to even out the score.
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If they had any concern about their institution's credibility they wouldn't have even heard the case. Obviously, they don't care about that so it appears that the best we can hope for is that they don't decide to grant this immunity outright but rather come up with some vague distinction between "official" and "private" acts and send it back to the trial court, delaying the case until after the election. If Trump wins, I think we can be quite sure there will be no immunity for Joe Biden.
It's disconcerting to realize that the right-wing legal intelligentsia is infected with Fox News Brain Rot all the way to the top. You see it from the legal commentators in partisan media, of course. That's to be expected. But it's permeated the entire GOP legal establishment from state attorneys general to judges and to people like Trump's former Attorney General Bill Barr who recently said that despite the fact that he believes Trump committed illegal acts and is unfit for the presidency he plans to vote for him because Democrats want to regulate kitchen appliances and are therefore a greater threat to democracy. And now we see this extremist majority on the Supreme Court acting as rank partisan operators to ensure that a blatant criminal gets every chance to seize power so that he can pacify his broken psyche by wreaking revenge on his enemies. And they seem to be open to taking down our democracy in the process.
As former FBI General Counsel Andrew Weissman said on MSNBC over the weekend, "We are one vote away from the end of democracy as we know it."
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