The Supreme Court is the biggest threat to democracy we face

July 2, 2024

Thousands of American patriots fought and died to free the colonies from a king who ruled with absolute power. Today, the Supreme Court overthrew the American Revolution and anointed the US president as a modern-day king. Their betrayal of the American revolutionaries, Founders, and Framers is all the worse because they did so to promote the most corrupt, dangerous, depraved person to disgrace the office of the presidency.

Trump v. United States will be overruled. The decision is so bad it will not stand. Like Dred Scott (holding that enslaved people are not citizens entitled to judicial protections), Plessy v. Ferguson (upholding segregation), Koramatsu v US (upholding the Japanese internment camps), today’s decision will be overturned by the acclamation of history in due course. It will be remembered as a mark of shame for the Roberts Court just as Dred Scott tarnishes Chief Justice Taney’s legacy to this day.

It may take a few years or decades to overturn Trump v. US, but the American people are the ultimate power under the Constitution. Majorities in the House and Senate can pass a bill to expand the Supreme Court, and a Democratic president can sign it. The reactionary majority can be overwhelmed by the appointment of four new justices, although expanding the Court by eight or more would be appropriate given the nearly hundred-fold growth in the US population since six justices were appointed in 1789.

A new majority on the Supreme Court can begin the hard work of overruling Trump v. United States, Dobbs, Citizens United, Loper Bright,  Heller, Bruen, Shelby County v Holder, and dozens of other decisions bought and paid for by the Federalist Society and its cadre of billionaires.

We are going to win. The only thing that has changed is the timeline to ultimate victory. Generations before us fought and endured for decades to bring us to this moment. We can do the same. Indeed, we have a moral and patriotic obligation to do so. We owe a debt of gratitude to those who came before us and are charged with the sacred trust of delivering democracy to future generations. We can do that.

On this difficult, traumatic day, we must convert the shock of the latest judicial revolution into an overwhelming victory in November. Just as Dobbs fueled massive turnout, so too will Trump v. US.

Over the next four months, pollsters and pundits will tell us that women don’t care about reproductive liberty and Americans don’t care about democracy. They will tell us that voters don’t care about sexual assault or insurrection or bribery or theft of national defense secrets but instead only care about inflation and Joe Biden’s age. Those pollsters and pundits will be proven wrong. They are committing the cardinal sin of betting against the American people when their backs are against the wall. That is a sucker’s bet with a long line of losers who underestimated our resolve. We will prove them wrong again!

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The opinion in Trump v. US

There is a torrent of excellent writing and commentary about the opinion. Given that fact, I will follow the maxim that “Less is more” and attempt to explain the decision and its consequences in a bare bones fashion and direct readers to other commentary for further details.

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What happened?

From 1789 to the present, everyone rightly believed that US presidents were subject to criminal prosecution on the same basis as all other citizens.

Today, the Supreme Court invented a rule (found nowhere in the Constitution) granting presidents immunity from criminal prosecution as follows:

1. Core presidential functions are absolutely immune (“conclusive and preclusive”), for example, when granting pardons.

2. Official acts are presumptively immune from criminal prosecution for a president’s acts within the outer perimeter of his official responsibility—which is almost anything tangentially related to the president’s enumerated powers

3. Evidentiary rules. The Court also imposed two evidentiary rules on prosecutors seeking to navigate the above two rules:

• A prosecutor may not use official acts as evidence in a prosecution of unofficial acts.

• A prosecutor may not examine a president’s motives in attempting to distinguish between official and unofficial acts.

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What does this mean for presidential power?

The opinion went much further than Trump had requested. For example,

• A president can accept bribes in exchange for pardons. He would be immune from prosecution because issuing pardons is a core presidential function.

• A president can issue a self-pardon. Under the opinion, the president is immune from prosecution for any exercise of the pardon power.

• A president can pressure the Attorney General to corruptly target the president's political enemies. Presidential discussions with the Department of Justice are core functions and conclusively immune.

• A president can pressure the Vice President to corruptly miscount the Electoral Ballots. The corrupt pressure on the VP is presumptively immune, and the prosecutor cannot examine the president’s motives in trying to prove he was acting in an unofficial capacity.

Of course, a president is subject to impeachment for actions immune from prosecution. But given Trump's iron-fisted control over the skulk of cowards banded together under the GOP banner, impeachment is no constraint on a future Trump presidency.

The examples above are frightening. But they should also be motivating. Democrats and persuadable Independents should be motivated to turn out in massive numbers to prevent a second Trump term.

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What does the opinion mean for Jack Smith’s prosecution?

Judge Chutkan must hold an evidentiary hearing to determine which acts are official and unofficial and what evidence must be excluded from proof.

As a practical matter, there will be a public hearing that fully ventilates the prosecution’s case to make those substantive and evidentiary determinations.

Although that hearing will not be a trial, it will be a first-order approximation of a trial. It is possible that it may take place before the election. See Andrew Weissmann, op-ed in NYTimes, How to Get Voters the Facts They Need Without a Trump Jan. 6 Trial (This article is accessible to all.)

The evidentiary hearing will be a positive step forward. But a trial of Trump is years in the future. And it will not occur if Trump is reelected. In that sense, nothing has changed. The courts are not going to save us. The only way to hold Trump accountable is to defeat him at the ballot box. That has been true since February 13, 2021, when the Senate refused to convict Donald Trump in his second impeachment trial.

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Worth reading

Justice Sotomayor’s dissent:

Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, the Court gives former President Trump all the immunity he asked for and more.

The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it. For instance, Alexander Hamilton wrote that former presidents would be “liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69.

The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune. Immune.

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

With fear for our democracy, I dissent.

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President Biden’s statement after the ruling

This nation was founded on the principle that there are no kings in America. That each of us is equal before the law. That no one is above the law. Not even the President of the United States.

Today's decision by the Supreme Court removes virtually all limits on what the president can do.

It's a dangerous precedent.

I know I will respect the limits of the presidential powers, but any president -- including Donald Trump -- will now be free to ignore the law.

I concur with Justice Sotomayor's dissent today. She said: "In every use of official power, the President is now a king above the law… with fear for our democracy, I dissent."

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NYTimes editorial

NYTimes Editorial, The Supreme Court Gives a Free Pass to Trump and Future Presidents (This article is accessible to all.)

Prior to this decision, there was no grant of criminal immunity to presidents; though the authors of the Constitution gave a form of that privilege to members of Congress, they declined to do so for the chief executive. For a conservative majority that pretends to rely on historical precedent, the newly created standard is remarkable for its lack of basis in the Constitution, law or any precedent of the court. It was made up out of thin air.

The product of the majority’s invention runs counter to the entire notion of a government based on the rule of law.

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Ian Millhiser, Vox

See The Supreme Court’s Trump immunity decision is a blueprint for dictatorship - Vox.

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Mark Joseph Stern, Slate

See John Roberts and the Supreme Court just made the president a King. (slate.com)

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Concluding Thoughts

Some moments in life bring clarity. Clarity is good but can be painful. Still, it is better to understand the worst so that we can make necessary adjustments rather than labor under misperceptions.

Today, we learned that the Supreme Court is no longer operating as a good-faith player in a constitutional democracy. It wrote an opinion that immunized Trump’s insurrection and attempted coup to the fullest extent of the law.

The Supreme Court is lawless. It is not an ally to democracy. Indeed, the Supreme Court is the single biggest threat to democracy we face.

Now that we are clear on that fact, we can set aside any delusions that the Supreme Court will act as a guardian of democracy or liberty, ever. Not during the election. Not after the election. Never.

That clarity tells us that it is up to us. It always has been. But the Trump v. Anderson decision should be a rallying call for every American. No more half-measures. No more close elections. No more staying home because we are not excited about the candidates.

We either value our democracy enough to save it, or we do not. We will either do the necessary work or we will not.

I know most readers of the newsletter are already giving 110%. We need to motivate friends, neighbors, colleagues, and complete strangers to begin acting the same way. Biden must win by 15 million votes so that the Supreme Court will back away from any attempt to help Trump steal a close election.

So, we know the worst. And we still have every reason to believe we are going to win. Indeed, we have more reason to believe we will win after we explain the Trump v. Anderson opinion to potential voters who are not paying attention.

We cannot let this important development pass without comment: The Supreme Court told Joe Biden today that he is a king. He replied, “No, I am not a king. Each of us is equal before the law.”

As we approach Independence Day, we are reminded that the signers of the Declaration of Independence understood that they put their lives, fortunes, and families at risk by declaring that

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

Overthrowing a king gave birth to our nation. The Supreme Court has just reimposed a king on the American people. It is time for a second revolution—this time to bring a rogue Court back to the guiding principles of the Constitution. That revolution begins with massive voter turnout in 2024, allowing us to expand the Court and send the reactionary majority back to the fringe minority status it deserves.

Talk to you tomorrow!