The Supreme Court Took A Sledgehammer To American Democracy

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The organizing principle for TPM’s core coverage since Jan. 6, 2021, has been the conceit that we are a vigilant watchdog over the long, slow, unsteady process of holding Donald Trump to account under the law for his efforts to overturn the 2020 election.

In the early days of that effort, much of the focus was on expanding the public understanding of the election subversion scheme beyond the violent attack on the Capitol to encompass all of the wrongdoing that Trump and others conspired to engage in to retain an extraconstitutional grip on power.

We traced the beginning of the conspiracy back to April 2020 when the new voting measures put in place during the COVID pandemic enraged Trump and many Republicans and began us on the road to the Big Lie. There were tendrils that extended as far back as 2016, but the core conspiracy sprouted in the spring of 2020 and didn’t just come into full bloom out of nowhere on Jan. 6, 2021.

It was clear from the outset that Trump’s unlawful conduct was somehow beyond the imagination of the people most immediately responsible for protecting and preserving our constitutional framework and the legal system it undergirds.

That was deeply alarming, but it also felt fixable, with the consistent application of a more dextrous imagination coupled with clear-headed thinking, the relentless gathering of evidence, a sober assessment of the consequences of an auto-coup attempt, and an emotional appeal to the underlying principles imperiled by Trump’s conduct and further imperiled by the failure to hold him to account under the law for that conduct.

For a time, it was thrilling to watch the needle move as the public imagination broadened and deepened and officials of good faith began to come to grips with what had happened and what now needed to happen to preserve the rule of law. The work of the House Jan. 6 committee was pivotal in this regard. While the Justice Department moved quickly against the Jan. 6 rioters, it moved more slowly on other fronts; but it eventually brought to bear the full weight of its resources and professionalism to the enormous task of prosecuting a former president.

As the needle started to move on the Jan. 6 front, an astonishing new development further reinforced the growing consensus in official Washington that Trump’s lawlessness could no longer be ignored let alone excused. The mind-boggling revelation that Trump had squirreled away at Mar-a-Lago classified documents he had pilfered upon leaving the White House and the FBI search of his home to retrieve them demonstrated the extent of his criminality, the risk he posed not just to the rule of law but to national security, and the consequences of not holding him to account under the law.

Still, even with the needle moving during this period, it was becoming obvious that there was a fundamental failure at many levels of government to grapple with the political calendar and the fact that we were in a race against the clock. There is no justice in failing to hold to account in a timely fashion the man who illegally used the powers of the presidency to try to overturn the last election, especially when he is running again for the very same office, is the standard-bearer for his party, and remains a threat to democratic order and the peaceful transfer of future power.

At this point in our national narrative, holding Trump to account shifted to the province of the courts. Speed is not their forte, and usually for good reason. Still, it felt like an important milestone. I’ve said here before, to the chagrin of many of you, that the goal wasn’t to land Trump in prison but to hold him to account in a court of law and let the chips fall where they may. Given how remote it seemed in the days immediately after Jan. 6 that such an accounting would ever happen, indictments in Washington, D.C., South Florida, Atlanta and to a lesser extent in New York City felt like a vindication of sorts for the rule of law and the ability of the justice system to rally to the historical moment.

I needn’t tell you what happened next. The wheels came off.

Sensing that we were losing the race against the clock, advocacy groups made a strategic decision to invoke the 14th Amendment’s Disqualification Clause against Trump to keep him off the ballot in key states. If it didn’t apply to Jan. 6 insurrection, when would or could it ever apply? In so doing, we got our first taste of how the Supreme Court — with its six-justice “conservative” majority, half of them appointed by Trump — viewed Jan. 6. It couldn’t bring itself to confront the reality of Jan. 6 at all. With a dyspeptic hand-wave, it rendered the clear language of the Constitution a nullity and foreshadowed where things were headed next.

Back in the real world, the work of holding Trump to account was proceeding unevenly. At one extreme, you had U.S. District Judge Aileen Cannon corruptly mishandling the Mar-a-Lago trial after she had impermissibly intervened in the underlying investigation via a Hail Mary civil action by Trump. On the other hand, the 11th Circuit Court of Appeals had brought Cannon up short, and U.S. District Judge Tanya Chutkan and the DC Circuit Court of Appeals were making quick work of Trump’s absurd claims of absolute presidential immunity in the Jan. 6 case. Meanwhile, Trump would go to trial in the Manhattan hush money case and be convicted.

But the clock kept ticking. The Supreme Court had taken notice of it in the Disqualification Clause case, where it quickly ruled in Trump’s favor, but it was mostly indifferent to it in the immunity case. By taking the case initially, the court used up valuable pre-election time. By putting it on less than the fastest track for argument and decision, it chewed up even more time.

Oral arguments on immunity did not go great, but the range of possible outcomes on the immunity question still felt safely within the bounds of our constitutional structure and the rule of law. From the outside looking in, the greatest mischief the high court seemed to be engaged in was buying Trump enough time to push his Jan. 6 trial past the November election. It was egregious, unforgivable even, a sop to the man to whom they owed their majority. It was an abdication of the justices’ duty to the rule of law.

But it was only a taste of the historically bad decision still to come.

At this point in the narrative, it feels necessary to orient the reader to the narrator. I’m not by nature or temperament a hair-on-fire personality type. I counsel calmness under pressure. I value clear-eyed assessments of difficult situations. I can find pleasure in puzzling though solutions to hard problems. I’m more inclined to take the long view and try to prevail through perseverance. What I am about to say is uncomfortable, painful even.

Yesterday’s immunity decision by the Supreme Court took a sledgehammer to the constitutional foundation of American democracy and eviscerated the rule of law. It will, in my view, go down in the annals of wretched Supreme Court decisions alongside Dred Scott, Plessy v. Ferguson, and Korematsu. It makes Bush v. Gore look like a piker.

Three days ahead of the 248th anniversary of the American colonists formally shucking off monarchial rule in revolutionary style in Philadelphia, the Supreme Court gilded the U.S. presidency with monarchial powers the likes of which we’ve never had before, never sought, and thought we had rid ourselves of two and half centuries ago.

The American presidency now exists outside of the law and beyond the reach of the criminal law. In the Supreme Court’s view, the President is the law. This is new, it’s unprecedented, and the consequences are almost beyond our ability to imagine or foretell.

The rule of law, as the saying goes, must exist for everyone; otherwise, it exists for no one. By placing the president beyond the rule of law, the Supreme Court has deprived all of us of its protections. The constitutional structure we have relied on since 1789 — imperfect but resilient, a creation of man not of the divine, a work in progress never to be fully completed — was turned on its ear yesterday by an ahistorical decision grounded neither in the text of the Constitution nor our traditions and customs nor our best hopes for ourselves or our form of self governance.

It is a shock to the system that is going to take a long time to come to grips with and decades or longer to remedy. In the first few hours since the decision came down, I’m not seeing it sinking in yet across broad swaths of the media, the legal system, the political system or society writ large. The high court has ruled it so. There is no immediate recourse against it or against the new and alien structure it has foisted upon us. Short of a new constitutional convention or a series of constitutional amendments, we are stuck with it. That is going to take time to settle into elite consciousness.

The conceit that I began this monologue with — that vigilant watchdogs applying steady public pressure could rally those in authority to uphold the rule of law even in the extreme situation of a failed auto-coup — collapsed upon itself yesterday. What began as an effort to validate the rule of law ended up being the grim task of bearing witness to its demise.

As a former lawyer, I can tell you we are outside of the legal realm now. This is no longer the work of lawyers or judges. They have been displaced in a bitter irony by the Supreme Court itself (how this is an aggrandizement not just of executive power but of Supreme Court power is an essay for another day). My friend Dahlia Lithwick, a relentless defender of the rule of law, recognized yesterday’s seismic shift. “As an official representative of the legal commentariat I want to suggest that tonight’s a good news cycle to talk to the fascism and authoritarianism experts. This is their inning now …”

We have entered an uncertain new era. The door is now wide open to the kinds of fascism and authoritarianism we spent much of the 20th century and hundreds of thousands of American lives combatting overseas. Many of you will be skeptical of this. I will take no joy in being right about this. You can wait and see, but don’t wait too long. It may already be too late.

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