The U.S. Supreme Court just tossed aside its last scrap of legitimacy. You don’t have to have gone to law school or practiced law to know that the argument that Trump is “immune” from criminal charges is legally hogwash.
A basic tenet of a democracy is that no one is above the law and that certainly applies in the case of a grifter who tried to hang onto the presidency after he lost the election and now wants to be dictator.
If you want the legal arguments, the U.S. Court of Appeals for the D.C. Circuit made it abundantly clear in its ruling. You can read that here.
All the Supreme Court had to do was say no and let the D.C. Circuit ruling stand. Instead, they set it for argument two months out. Even if at least five of them come to their senses and rule against Trump, the trial on his actions in the January 6 insurrection will be pushed off until the fall, with the presidential election looming in November.
I note that Brazil has taken much more concrete action against Jair Bolsonaro, who used similar tactics when he was defeated in their 2022 election. His supporters stormed government buildings in January 2023; by June 2023 the Brazilian courts had blocked him from running for office again until 2030.
It was only in 2023 that prosecutors finally got around to indicting Trump for his actions in 2021, and now our Supreme Court is helping him delay trial.
I once would not have expected Brazil to do a better job of dealing with wannabe dictators than the United States, but the last few years have cured me of any belief in American exceptionalism.
They’ve also cured me of believing in the Supreme Court.
I grew up during the years when Earl Warren was chief justice. Earl Warren, the former Republican governor of California. If you look at the bios of Warren and the others on the court in those years, you wouldn’t find radicals. But when it came to interpreting the Constitution, they did take seriously such things as the 14th Amendment – one of the key changes after the U.S. Civil War.
The small town outside of Houston where I went to high school would never have desegregated its public schools (or public anything else) if it hadn’t been for the Supreme Court’s ruling in Brown v. Board of Education. As it was, it took them close to a dozen years after Brown to get around to it, but eventually they did.
Other changes happened in the wake of various Supreme Court rulings that made it clear we all had rights, rulings like Griswold v. Connecticut, which legalized the use of contraceptives by married couples, or Loving v. Virginia, which overturned laws prohibiting interracial marriage.
A classmate of mine who got pregnant sued our school when they wouldn’t allow her to finish high school after she had the baby – sued and won. That wouldn’t have happened even five years earlier.
There are justices on the current Supreme Court who are ready to toss Griswold and maybe even Loving and they’re certainly going after same-sex marriage.
But doing what they can to prevent a man who tried to overturn an election and make himself dictator from going to trial scares me even more than the assault on women’s bodily integrity and the undercutting of the Voting Rights Act.
I studied constitutional law under Charles Alan Wright, a renowned scholar and appellate lawyer. I still remember the first day of class.
It was second semester of our first year in law school, and we were a little cocky, having survived finals. The class was in a large room that sloped down to a podium in front for the instructor. There were about a hundred people there.
We were chattering away when Prof. Wright walked into the room. By the time he reached the podium there was dead silence. He said, “Would somebody please give us Marbury v. Madison?”
That case is, as pretty much everyone knows – and as certainly every first year law student knows – the one in which the Supreme Court concluded it had the right to determine whether a law was constitutional. Anyone in the room could have explained it at the time. The dead silence continued for perhaps a minute.
We were all very grateful when Mr. Timmons volunteered.
Nowadays, if I were a law professor and teaching Marbury v. Madison, I would invite discussion on whether it was properly decided. But Prof. Wright never raised that idea at all.
He was generally conservative – he took what I considered the “wrong” side on several important cases and he even helped Richard Nixon – but more than that, he was an institutionalist. He believed in the Court and he believed in the Constitution.
And that’s what I took from his class – a belief in both those things.
I knew the country had flaws. I was an antiwar activist turned co-op organizer, and was planning to practice the kind of law where you tried to change things.
But I still believed that the Supreme Court was basically a force for good.
By the 1980s, I began to worry when cases I considered important went to the court. After Bush v. Gore in 2000, I reached the point where who a president might appoint to the Supreme Court was a key factor in my political decisions.
Now that we have a court that is blatantly backing a man who wants to destroy any chance of our country living up to its democratic ideals, who wants to overturn the outcome of the Civil War, I have reached the point where I recognize the deep flaws in our Constitution and the way we have let the Court build its power.
And by deep flaws, I don’t just mean just the obvious things like the 3/5ths clause and the fact that so many of the “founding fathers” owned human beings who made them wealthy. I mean things like how hard it is to amend the Constitution, which I once thought might be a good thing.
And I definitely mean judicial review.
There was a piece in The New York Times the other day on the response of constitutional law professors to the way the Supreme Court is doing business. Most of them are appalled; many are questioning how they can even teach their classes when the court is throwing out everything that seemed to give us a body of constitutional law.
The professors who teach constitutional law are the cream of legal scholarship and of the profession. Those who specialize in other kinds of law may get richer, but constitutional law is elite.
The people who teach it think it’s falling apart.
I must point out that this article was written before the Supreme Court decided to hear the “immunity” claim. From what I have seen online since that happened, the constitutional law scholars are even more freaked out than they were before.
This does not bode well.