This week, the Supreme Court managed to fail to meet the
already extremely low expectations most sane people already had for it. First,
during the Idaho EMTALA case on whether hospitals receiving
federal funding can refuse to provide abortions to women who are actively dying
as a result of a pregnancy, we heard debate over which, and how many, organs a woman had to lose before an abortion becomes legally
acceptable. By all appearances, it looks as though the court is going to gut the already laughably weak “life of the mother” protections by
a 5–4 vote.
It followed up this abysmal performance with hearing the Trump immunity case the next day, and the comportment of the same five male, conservative justices was even worse. When Justice Sonia Sotomayor asked Donald Trump’s lawyer, “If the president decides that his rival is a corrupt person, and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?” he replied, “It would depend on the hypothetical, but we can see that would well be an official act.”
Based on that one line of questioning, Trump’s argument should be going down in flames 9–0. A democracy cannot survive when its supreme leader can arbitrarily decide that it’s in the nation’s best interest to rub out his opponents and then leave it to some future court to decide whether it was an official act because he’ll get away with it, as long as there aren’t 67 votes in the Senate to impeach. And given that it will have been established that the president can put out a contract on political foes, how many senators are going to vote to impeach?
But the justices did not laugh this argument out of court. Quite the contrary: At least five of the justices seemed to buy into the Trump team’s arguments that the power of the office of the president must be protected from malicious and politicized litigation. They were uninterested in the actual case at hand or its consequences. Elie Mystal, justice correspondent at The Nation, perhaps captured my response to the Supreme Court’s arguments best: “I am in shock that a lawyer stood in the U.S. Supreme Court and said that a president could assassinate his political opponent and it would be immune as ‘an official act.’ I am in despair that several Justices seemed to think this answer made perfect sense.”
At a minimum, it appears the court will send all of the federal cases back down to lower courts to reconsider whether Trump’s crimes were “official acts.” It’s also likely that their new definition of “official acts” is likely to be far broader than anyone should be comfortable with, or at least broad enough to give Trump a pass. This delay all but guarantees that Trump will not stand trial for anything besides the current hush-money case before the 2024 election.
This is catastrophic in so many ways. The first is that it increases the already high chances that the United States ends up with a dictator who will attempt to rapidly disassemble democracy in pursuit of becoming President for Life. It simultaneously increases the chances that yes, he will go ahead and violate the civil and human rights of political opponents and classes of people he calls Communists, Marxists, and fascists. People forget that the first German concentration camp (Dachau) was built in 1933 to hold members of the Communist and Social Democratic Parties, and Trump has made it clear that he’s building enough camps to process a minimum of 11 million people (migrants, at least for starters).
The conservatives on the Supreme Court have also exposed their hubris, willful ignorance, and foolishness to the entire world in stark terms, and it will cost them and the nation dearly in the long run. They somehow presume that if Trump is elected and goes full dictator, the power of the court, and their reputation, will save them. The truth is, Trump’s relationships with everyone he meets are completely transactional. If the court ever stops being useful to him, he will terminate it with prejudice if he thinks he can get away with it, and this court is doing everything it can to make him think he can get away with it.
These justices’ foolishness lies in their lack of foresight as to what happens if Trump wins in 2024. In the justice’s efforts to ensure that they are the most powerful branch of government, they are about to make it the weakest. They are creating a win-win situation for Trump, and a lose-lose for themselves. When Trump is president again, he is likely to believe that he has the option of “removing” any member of the Supreme Court who defies him. As long as the court doesn’t rule against him, they’re fine. From the justices’ perspective, they either end up neutered lap dogs of a despot who do whatever they’re told out of fear, or they defy him and end up somewhere … unpleasant (at best). Taking a dirt nap at worst. After all, if Trump can rub out a political opponent, can’t he do the same to an uncooperative jurist?
The Roberts court surely believes that Trump would never stoop to this—that the sanctity of court and the laws and norms of our democracy will protect them. Anyone who has spent 10 minutes studying how democracies collapse knows this is idiotic, but it stems from the justices’ own hubristic belief that the court is so powerful and respected that it is immune to everything. They believe the respect for the institution will ensure their power endures.
Except, what happens when neither Democrats nor Republicans have any respect for the courts? If Republicans see the court as neutered pets who can be put down the first time they bite, or ignored like a chihuahua straining against a leash, what real power does it possess? Much like Stalin asked, “How many divisions does the Pope have?” Trump and Republicans will be fully cognizant that the court controls nothing once every federal agency has been packed with loyalists.
If Democrats nearly universally see the court as a corrupt rubber stamp for an autocrat, what happens if Republicans push too far on an issue? Like, say, an effective 50-state ban on abortion from the moment of conception with no real exceptions, which is almost certainly coming, despite Republican claims to the contrary. Well, when the court upholds this, or implements it, it becomes highly likely that blue state governments tell the court, and the administration, to go f--- yourself.
In the end, the court appears to be doing everything to destroy itself, democracy, and the union, with its own arrogance and lack of foresight. It’s either castrated itself, and in the process doomed the country, or signed its own death warrant.
