To be aggrieved at a 2024 Supreme Court decision at odds with the popular will or in the service of fealty to a would-be authoritarian is to be surprised by a “Let’s Go Brandon” bumper sticker on the back of a pickup truck barreling down a dusty back road in Tennessee.
Sure, it’d be nice if a super majority of the robed jurists who have the final word on legality in America wasn’t engaged in a regressive social engineering project that runs counter to the realization of a more perfect union. It’d be even nicer if that same majority wasn’t beholden to an autocrat, just like it’d be nice if 20% of the electorate weren’t ignorant rednecks. But hey, what can you do? To imagine otherwise is to be naive.
While we’re being unapologetically frank, let’s be honest about Clarence Thomas, Samuel Alito and Amy Coney Barrett. Many Americans view Thomas as corrupt and his wife as a January 6 collaborator. Many Americans view Alito as an extremist and his wife as a January 6 sympathizer. Coney Barrett’s a zealot: Her world view and, inescapably, her jurisprudence, is informed in part by religion.
More broadly, subjecting the populace to the dictates of a monastic order serving lifetime tenures — an insular cadre of quasi-clerics who are supposedly above reproach — feels anachronistic. Particularly in the context of the most advanced society on Earth.
Putting aside the debate about the court as an institution, this court — where that means the conservative majority — is entirely off the rails. A lost cause. Alito often appears to be running the show, which is terrifying. To reiterate: He’s an extremist. Radicalized, even. The notion that not one, but two of the justices’ spouses openly sympathized with the effort to overturn the 2020 election, and that both of those justices are not only still on the bench, but are in fact allowed to rule on cases related to the Capitol riot, is so flagrantly ridiculous — a conflict of interest so scandalous and an affront to common sense so egregious — that the public would be well within its rights to demand the dissolution of the whole archaic institution.
But, again, it is what it is. So, what is it? Well, last week it was a decision to narrow the scope of charges applicable to January 6 rioters. Allow me to briefly summarize that decision before getting to Monday’s tragedy.
The government’s use of Sarbanes-Oxley in cases related to the insurrection constituted overreach, the court said on June 28. The obstruction statute in question makes it illegal to “alter, destroy, mutilate, or conceal a record, document, or other objects… with the intent to impair the object’s integrity or availability for use in an official proceeding.” A subsection says the law applies to anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”
Writing for the majority, Chief Justice Roberts asked — and this is real — whether it would or wouldn’t be acceptable to eat a ham sandwich in front a starving, imprisoned primate. To wit:
A zoo might post a sign that reads, ‘do not pet, feed, yell or throw objects at the animals, or otherwise disturb them.’ If a visitor eats lunch in front of a hungry gorilla… has he obeyed the regulation? Surely yes. Although the smell of human food… might well disturb gorillas, the specific examples of impermissible conduct all involve direct interaction with and harassment of the zoo animals. Merely eating… is so unlike the examples that the zoo provided that it would be implausible to assume those activities were prohibited, even if literally covered by the language.
I’ll gently note that you should only eat lunch “in front of a hungry gorilla” if that gorilla’s jailed. Eating a sandwich in front of a hungry gorilla in the wild will surely count as a “disturbance” in the eyes of the gorilla, whose “opinion” is the only one that’ll matter. Citing Roberts won’t save you being beaten to death in the jungle.
The Justice Department — silly them — politely asked the court to consider common sense. Someone — a rioter, for example — who “obstructs an official proceeding by physically blocking it from occurring” is surely covered under the statute. If “otherwise” means anything, it must mean that arming oneself in the course of occupying the space where an official proceeding is scheduled to take place, counts as obstruction. Not if you’re John Roberts, though. Justice Roberts eats in front of the gorilla enclosure.
So, that was last week. This week, Roberts and co. decided that Donald Trump “may not be prosecuted for exercising his core constitutional powers, and is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.” Roberts, writing again for the court, was joined by Thomas (whose wife sent text messages to Trump’s inner circle in the weeks leading up to January 6), Alito (whose wife flew flags in sympathy with Trump in and around January 6), Gorsuch (a Trump appointee), Kavanaugh (a Trump appointee) and Coney Barrett (a Trump appointee).
The decision effectively rules out an expeditious trial in the election interference case which will, I assume, be kicked back down the ladder, where lesser jurists will have to delineate between Trump’s “official acts” and acts undertaken as a private citizen. Roberts provided a bit of not-so-subtle guidance in that regard: “[M]ost of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities,” he wrote.
Remember: This is a Justice Department case. If Trump wins the presidency again, he can simply instruct the department to drop the charges.
If that seems insane to you — or insanely dangerous — that’s because it is. Monday’s decision was as unconscionable as it was predictable. I’ve said it again and again: This court — the conservative majority — is beholden. This court’s a lost cause. This court’s engaged in an effort to subvert the very democracy it’s charged with defending and preserving. This court’s in thrall to an autocrat and intends to reinstall him in the presidency.
Sotomayor, Kagan and Brown Jackson are powerless to stop it, but Sotomayor delivered a dissent that was astounding in the scope and gravity of its accusations which were just barely veiled if they were hidden at all. It read, in part,
Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. 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? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done.
To call that language breathtaking would be to understate the case. And not by a little bit either. It would appear that Sotomayor, Kagan and Brown Jackson have reached — or are in the process of reaching — something like wits’ end.
In her own dissent, Brown Jackson painted a dire picture. “The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings,” she wrote. “I fear that they are wrong. But, for all our sakes, I hope that they are right.”
She went on to describe the risk inherent in the court’s decision as “intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms.” Importantly — and related to everything said above about the majority’s fealty to Trump — Brown Jackson noted that in taking that risk, the court’s also assuming for itself powers that are likewise intolerable, unwarranted, and antithetical to the Constitution.
Remarkable as Brown Jackson’s scathing assessment surely was, it was Sotomayor’s dissent that’ll echo. Possibly for eternity. If at any point in the future the worst fears for the country are realized, Sotomayor will be remembered as the author of American democracy’s obituary.
The relationship between US presidents and the public has “shift[ed] irrevocably,” she said, warning that “in every use of official power, the President is now a king above the law.” She signed her dissent, “With fear for our democracy.”
Jaime Harrison, DNC Chair, was bleak. “May God have mercy on this nation,” he wrote.
What is Biden waiting for? The coast is clear to eliminate his political adversaries.
Yeah, like Democrats take advantage of political opportunities. Right.
TBH, I think Biden should order the execution of the conservative SCOTUS (at least 3 of them, leave the last one to regret his/her vote) as well as Trump…
… and then submit to the courts, accepting a life sentence and stating that, regardless of SCOTUS grotesque decision, Presidents aren’t kings.
The man would become a legend, doing more for the Republic than anyone but Washington (and I very much include Lincoln. Accepting a war is easy compared to ordering the execution of fellow Americans you fundamentally believe have rights)
Mitch McConnell’s grand plan to take over the country through the courts has come to fruition. The genesys of the fall of American democracy should be laid squarely at his feet.
To state the obvious: Period. End Of Story and Sotomayor Pens Obituary For American Democracy reverberate, and each amplifies the toxicity of the other.
DNC chair Harrison should have a good long look at himself in the mirror. He’s one of the gaslighters in chief.
A regressive right wing radical court which has way overstepped its bounds. Between this and the chevron ruling, there is nothing to stop a radical social darwinistic movement from ruling this country. Watch Amazon prime series, ‘The Boys’ for a peek at what lies ahead. Only way to stave this off at least for awhile is for trump to lose. A dark day. The best Supreme Court money can buy.
You know, it bears pointing out that nobody cared when Obama expanded executive privilege and secrecy in unprecedented ways… people are saying now that this would have made Watergate legal if it happened now, but nothing that happened in Watergate has been illegal since about 2010. I’m not saying that their criticisms of this are in any way wrong, but it would’ve been nice to have heard it back then, too.
Meanwhile, the Republicans who complained bitterly about his imperial tendencies see no problem with this at all, this is a common-sense development to them. Of course a president needs to be free to do what he wants without fearing checks on his power, that stands to reason, if he’s a Republican.
Sometimes I wonder why I even bother paying attention.
When did Obama spy on his political opponents?
Like, I don’t agree with the legal cover GWB and Obama sought in order to prosecute a misguided War on Terror (TM) with as little oversight as possible but, generally speaking, and much as I hate GWB, both men could be trusted not to whack their political rivals or sell the country for a few dollars.
Today’s Republicans… wouldn’t even hesitate. They’d tell you you’re an idiot and the only thing that matters is getting rich quick.
He didn’t specifically spy on his political opponents in the US, but certainly there was a lot of warrantless wiretapping, allowed even when US citizens were part of the conversation. And, oh yeah, there was that first-ever extrajudicial execution of an American citizen by Presidential fiat without any due process, in my opinion that might qualify as being as bad as spying on your political opponents. Anwar al-Awlaki was a murderously evil terrorist in addition to being a US citizen, no argument there, but I don’t believe the Constitution’s guarantee of due process mentions any qualification even for that, making his execution a dangerous legal precedent even if it was morally deserved. (I’ll grit my teeth and skip discussion here of the drone killing of his 16 year old son, also an American citizen, in a country the US wasn’t at war with, as that’s arguably a little, but only a little, murkier.) Also the 2012 NDAA legitimizing indefinite military detention without charge or due process of anyone anywhere in the world, including US citizens on US soil (an exclusion for that, present in the original Senate version of the bill, was removed at the White House’s request). I could go on, I have a list of about 25 of these kinds of things in a folder somewhere around here. Double-tap drone strikes to kill aid workers and first responders leap to mind, too. I’m not a fan. And, I started out as one!
As to specifically overturning the final remaining regulations that made what Nixon did in Watergate illegal… err… ok, mea culpa, on that point I’d have to dig back through my notes from 12 years ago to find a specific citation, and I probably shouldn’t have expected to be able to mention it here without getting called on it. So while I do clearly remember knowing the details well enough to argue it at the time, I’ll retract that specific point for now. If I can find the notes tomorrow I’ll revisit.
My general point still stands though. I have a bit of an axe to grind for things that everybody rightfully blames the orangutan and worshippers for—and truly, they deserve it, I’m not complaining about that at all—however, at the same time a lot of these same people have always given a free pass for similar to anyone who had a “D” on their jersey instead of an “R”. And there’s no shortage of examples. Abortion, gun control, civil rights here and abroad, people assume the Democrats have been unceasing defenders of these things, but if you ignore speeches and look at actual policies or lack thereof, it’s not hard to find discrepancies.
Is it fair to say that the executive remains checked by impeachment for high crimes and misdemeanors, by the legislative branch ?? Therefore is that enough of a check and balance to prevent a “Regent” from riding roughshod over the Republic ?? CJ Robert’s gorilla analogy is at best silly.
Personally, I’m uncomfortable with that. Impeachment is too politically motivated a process, Congress is the furthest thing from impartial. Plus, I’m not a lawyer, but from my technically ignorant standpoint, I would want to see some sort of very concrete assurance that legal immunity doesn’t mean immunity from impeachment as well. You know someone like Trump would make that argument if he had to. And a biased enough court might let that stand, too.
Anyone can be killed anytime now by our government. CEO’s, journalists, Doctors, Political pundits, Wealthy people, congressmen, senators, supreme court assholes and those commenting on this page.
Remember though that you will have due process after you are dead. They can read you your rights just before they relieve you of your wealth. For good measure can eliminate your heirs.
More than ideology, it’s the towering arrogance of Alito, Gorsuch, and Roberts that make them so objectionable and a threat to democracy. As terrible as Clarence Thomas is, he’s just a garden-variety grifter.
Towering arrogance coupled with an ideology that is doomed to failure.
I wonder if they thought up the scenario that they could be killed so that replacement jurist could be appointed to take their place. Jurist for life indeed.
OoooOOOOooooH. That’s good. Can you get a screenplay together quickly enough to have the movie out before the election?
Its well past time for Biden to pull out the ‘Bush Cheney Rumsfeld playbook’, turn to the section on extraordinary renditions and defend the country (a core presidential responsibility) from the corrupt judges, bought politicians and most of all those that finance the corrupt judges and bought politicians. Where did they all go Brandon? I don’t know. I’m old and feeble minded you know (borrowing from tRumpist talking points and the Ronny Raygun playbook here) and I’m totally immune to prosecution. Totally immune to impeachment too because there are no treason, bribery, or other high crimes and misdemeanors that I’m not immune to while doing my job. Thanks SCOTUS!!
In the game of ‘do it to them before they do it to thee’ the Democrats always find a way to lose. So stand by and see this all happen during the next Republican/Freedumb Kakus administration. Certainly glad I’m olde and living in the American outback. Good luck to all you whippersnappers on the coasts.
The irony of this decision (which I read in full, bc I’m sick in the head) is that it is a big win for the Executive Branch over the courts. The main check on the president remains impeachment via congress, but the president’s “official” actions can’t be impeded/altered by threat of future prosecution, which obviously can be abused by a bad faith president. This decision will categorize some but not all of Trump’s actions in the lead up to Jan. 6 as “official” (quick summary: AG convos – yes, VP convos – maybe, state convos – maybe, public statements – mostly). But the below quote in the middle of the decision is worth thinking about. Democracy can be destroyed by corrupt courts as much as it can be from bad presidents. At least executives have term limits; judges don’t always. So while this ruling is inconvenient given how monstrous trump behaved during/after the 2020 election, there are downsides to a broadening of the courts to charge a president, as described by Roberts:
“The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover “‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any depart ment of Government.’” Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors.”
Respectfully. I think Sotomayor is more practical than Roberts.
Just asking, but can the court now say presidential impeachment is no longer possible as the POTUS will be doing his or her duty as the Pres and so now has immunity for any crimes arising from those duties?
Sotomayor’s examples are all wrong in my view. Assassinating a rival is a personal campaign act, not an official act. Assassinating Bin Ladin or Soleimanin is an official act in defense of the nation, unless Sotomayor wishes to allow the President to be indicted for murder and sued for wrongful death by their families. Similar for a bribe–personal. A coup–campaign personal.
I believe Seal Team 6 murder immunity was brought up in arguments. Which seems to say Sotomayor was simply relying on arguments in front of the court for the most shocking aspects of her dissent.
Exactly, “grsinger” apparently isn’t familiar with the history of this case. The wording she uses is right out of the arguments and also paraphrased from arguments made in other cases, in some instances by Trump’s own attorneys. As an aside, Bin Laden (with an “e”) and Soleimani (without the superfluous “n”) is a false equivalence. Bin Laden wasn’t “assassinated.” He was just plain old killed. For being a murderous asshole. He wasn’t a government official. Soleimani was a uniformed officer of a foreign country’s military-intelligence apparatus. You could argue he was a “terrorist,” but just make sure you know what you’re talking about when you do. Soleimani was the single-most effective counter-Sunni extremist operative on the planet, bar none. There isn’t a Navy SEAL, living or dead, who’s killed more Sunni extremists (which is to say the kind of people who run around Paris blowing stuff up and shooting at random people) than Qassem Soleimani. In fact, I’d be willing to bet that Soleimani was personally responsible for more Sunni extremist deaths than all Navy SEALs operating in all historical counter-terrorism operations combined. If you’re a Sunni extremist, he is (or was) a veritable ghost story. The bogeyman. Yes, he killed countless US service members too or, more accurately, was responsible for the deaths of countless US service members in Iraq. No tears were shed on my end for ol’ Qassem, that’s for sure. But to equate him with Osama Bin Laden is to fundamentally misunderstand the Middle East, the sectarian divide and just pretty much the entire “thing” over there. (As regular readers are aware, I’m a little particular when it comes to that subject.)
The Seal Team 6 thing is a useful hypothetical. A real-life corollary might be when Obama ordered the assassination of Anwar al-Awlaki, a US Citizen and member of al-Qaeda. Obama made the argument that the guy was a threat and that was the end of the conversation. End of day, I think if we’re honest, this decision only confirms what we’ve always assumed about the powers of the president, a role formed with fairly sweeping powers within the ‘separation of powers’ construct, and the framers presumed it would be held by citizens who could be trusted with those powers given they were selected by representatives of the states. Sometimes these guys flex. Lincoln suspended habeas corpus during the civil war. FDR went after political enemies with IRS investigations. Most people weren’t fearful of these powers because for 200 years, presidents were typically ‘presidential’ enough to show restraint (if they wanted someone murdered, they’d work through more clandestine channels). If the only thing standing in the way of truly monstrous behavior from a president is the threat of criminal liability post-presidency, and that legacy, popularity, moral compass, and ability to garner support and govern effectively don’t weigh more heavily into a president’s decisions, then we’ve clearly voted in the wrong president, or have supported extremely weak alternatives that allowed someone like this to gain power (see: 2016, 2024). Remove the context of this decision weakening the government’s case against trump, and what we’re left with is an interpretation I think we’ve always sort of had, but never thought hard about…
But people did protest Obama’s assassination of Anwar Al-Awlaki and there’s been rumblings of trying GWB and the neo-cons for war crimes.
Neither amounted to much because Al-Awlaki really was a terrorist and the War On Terror had been too popular to suddenly prosecute its architects without (at the very least, morally) indicting too many people down the line.
Still, I’d rather make exceptions to the rule that Presidents can’t go around ordering assassinations willy-nilly than simply remove the rule and say “oh, well, in a truly egregious case, the political class and the voters will rebel”. Opt in vs opt out, default matters kind of stuff.
Hah, mentioned al-Awlaki in my latest reply higher up without having seen these replies here yet.
This decision makes me believe that even if the dems pulled off a victory in the presidential contest the Supreme Court will find a way to hand the decision to Trump after all the failed legal challenges and efforts get to their docket…
Yes, I think that should be one takeaway from this decision. Which is yet another argument for running someone other than Biden, in my view. This is going to be a fight in every sense of the word. And exactly nothing suggests that Biden and his — forgive me — nerds, are up for it. Kamala probably is, being a — how should I put this? — abrasive, forthright woman and a career prosecutor, but the rest of that team ain’t gonna cut it. They need somebody younger, with more energy and a team that’s prepared to go to the mats (or the mattresses even) if that’s what it takes. Wandering around and shouting about “the soul” of the nation and repeating that same old bulls–t about “This is America! We can do anything we put our minds to!” isn’t gonna work this time. It’s corny, it’s played out and it sounds like exactly what it is: A sentimental atta-boy speech from an old man whose favorite word is “malarkey.”
after brief consideration of Newsom and Whitmer (and notwithstanding that GW has since stated no current interest in running) I also agree it’s time to go with Kamala…at least she’ll go down swinging…imho it all comes down to Jill Biden letting go of her ego and doing the right thing…I don’t know if she can do this…otherwise it secondarily comes down to the big donors and polls…
That playbook proved effective for dubya.
Harvard constitutional law professor Laurence Tribe called the decision by the majority sophomoric, when talking about it’s negative implications. I believe those words provide a basis for removal from the bench the 5 justices constituting the majority.
It should have been done earlier but it is time to disband media usage of the word conservative to describe the people who still inhabit the former Republican party domain. They are radicals, not conservative.
I call on journalists to stop calling the 6 radical justices by their preferred label and give them the more descriptive label of Radical from now on.