Way back when I was a boy, the U.S. Supreme Court was so revered as an institution that my fourth-grade teacher required us to learn the names of all nine members. We kids could never have imagined that there’d come a day when the highest bench in the land would be so widely reviled.
And deservedly so, because no matter what its MAGA-infested majority ultimately concocts for Trump’s bogus “immunity” case, enormous damage has already been done. By slow-walking the criminal defendant’s last-ditch appeal to escape accountability, by bending over backwards to entertain fake “immunity” arguments that are found nowhere in the history, text, or structure of the Constitution, the corrupted court has already postponed the long-planned federal trial – virtually ensuring that voters will not know, prior to the balloting, whether Trump is guilty of sabotaging the peaceful transfer of power.
I won’t numb you by highlighting the low moments in last Thursday’s oral argument session, except to point out that the majority’s contemptible attempts to held Trump weasel out of his criminal predicament clashed directly with the court’s own long-held principles. Here’s how the previous supremes ruled in a case back in 1882: “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy.”
Conservatives, true conservatives, take pride in respecting judicial precedent. There isn’t a scintilla of evidence in case law or in our founding document that a criminally indicted ex-president should be magically shielded, but the current court majority is so radicalized that judicial precedent is consigned to the toilet. A true conservative, former federal appeals court judge J. Michael Luttig, listened to the MAGA justices’ oral arguments and warned in a tweet: “If a president cannot be held accountable under the Constitution for having to attempted to overturn an election that he lost fair and square, remain in power, and all the while preventing the peaceful transfer of power, then that is to cut the heart and soul out of America’s democracy and the rule of law.”
We’re being goose-stepped in slow motion toward home-grown fascism, and if that reality seems hard to fathom, we need only remember the sleazy ways this court came to be.
This court does not represent the will of the people. That’s the bottom line.
Of the nine justices currently sitting, five were named by presidents – George W. Bush and Trump – who got the job despite losing the popular vote. If the 5-4 Republican majority in 2000 hadn’t summarily halted the Florida election recount and dragged Bush across the finish line, there may have been no Bush presidency, no John Roberts, and no Sam Alito.
Trump, another popular vote loser, gave us a MAGA trifecta. Neil Gorsuch got his seat only because Senate leader Mitch McConnell refused for a year to let President Obama fill a vacancy. Then came accused rapist Brett Kavanaugh. Then Amy Coney Barrett was sped onto the bench on the eve of the 2020 presidential election, even though McConnell had previously insisted that no justice should ever be confirmed on the eve of a presidential election. All three Trump nominees were confirmed by Republican senators who represent only a minority of Americans.
And the sixth member of this gang, Clarence Thomas, is participating in the immunity case despite the fact that his wife was a well-documented player in Trump’s fake “Stop the Steal” movement. Thomas, the well-financed pet of right-wing billionaires (as is Alito) will be free to wield his key vote next month (or in June, however long they wish to delay) because the court’s conflict-of-interest rules have more holes than a slice of Swiss cheese.
All told, says former federal prosecutor Dennis Aftergut, these six justices are potentially “creating the conditions to let the man who nearly destroyed the Constitution get off scot-free. All while setting the stage for him to complete the task.” And according to a journalist who interviewed Trump at length earlier this month for a Time cover story, here are some of the criminal defendant’s intended tasks: “He would let red states monitor women’s pregnancies and prosecute those who violate abortion bans. He would, at his personal discretion, withhold funds appropriated by Congress, according to top advisers. He would be willing to fire a U.S. Attorney who doesn’t carry out his order to prosecute someone, breaking with a tradition of independent law enforcement that dates from America’s founding. He is weighing pardons for every one of his supporters accused of attacking the U.S. Capitol on Jan. 6, 2021, more than 800 of whom have pleaded guilty or been convicted by a jury…He would gut the U.S. civil service, deploy the National Guard to American cities as he sees fit, close the White House pandemic-preparedness office, and staff his Administration with acolytes who back his false assertion that the 2020 election was stolen.”
The moral of the story: Our highest court is not coming to save us. We’ll have to do that for ourselves.