The CONservative Justices are Just Conning Us

This writer does not in any way, shape or form, represent the opinion of The Ridgeview News.

“Once you have the courts, you can pretty much do what you want.”  Jason Stanley, How Fascism Works.

The Supreme Court hearing arguments on presidential immunity in late April seemed like a game show in another language with rules the right-wing contestants chose not to grasp.  

Or maybe there was a new rule – you won points by straying the furthest from the question presented – in service to Donald Trump.

Those of us still hanging onto reality at the brink of the memory hole remember that Donald Trump, former US president, is charged by indictment with conspiracy to defraud the US by obstructing the certification of the 2020 election results, a conspiracy against rights.

On January 6^th, 2021, the forces that Trump had summoned to Washington overran the Capitol, smashing and looting, defecating in the building, and forcing members of the House of Representatives to flee to safe locations.  The 2020 results were not certified until 2:00 a.m. the next morning.

Trump’s lawyers argued that as president, Trump had complete immunity from all criminal prosecution.  Their plan was simply to delay Trump’s trial, at least until the 2024 election.  No reasonable or knowledgeable legal commentator thought presidential immunity was the law, had ever been the law, or should be the law.  

Because of the critical nature of the controversy for the country’s next election and the necessity for speed, special prosecutor Jack Smith asked the Supreme Court for special dispensation to hear the case directly from the district court, bypassing the court of appeals.  

Instead, the Supreme Court gave Trump his first delay by sending the case to the DC Court of Appeals, which ruled quickly, concluding that “now-citizen” Trump had no executive immunity to protect him from this prosecution.  The Supreme Court could have simply affirmed.  But no, they set it for oral argument and held oral argument.  A ruling could be months away.  Delay, delay, delay.

The conservative Court has already given Trump much more delay than he could have hoped for.  But the oral argument suggested that five and perhaps all six of the conservative justices were open to giving presidents immunity for official acts – and possibly finding that some of the crimes Trump is charged with were done in his capacity as president.

That would be a shocking result – an invention that would topple the rule of law, our three-part government, and ultimately democracy.

The question presented to the Court is obvious even to a layperson:  is a former president immune from prosecution for attempting to remain in power after losing the election, thus depriving the country of the services of the rightful successor to the powers of the presidency?  Can a coup be an official act of the presidency?

The six conservative justices, though, refused to talk about January 6^th or about what Donald Trump had done.  Cases come before appeal courts as actual controversies, with actual factsthat brought the case to court.  But for the conservative justices, it was as if January 6^th didn’t happen, or if it did it was just some blip on the big picture of the powers of the American presidency.

Rather than consider the possible criminality of the coup, the conservatives were ready to write a Presidential Immunity Treatise.  Justice Gorsuch: we are “writing a rule for the ages.”  In a sense, the court always is, but it does so in light of the case before it, not out of whole cloth.  

Justice Kavanaugh: “this case has huge implications for the presidency, the future of the presidency, the future of the country.”  Really?  No one in the history of the United States ever thought the president was immune for any crimes committed while in office.  Only overturning that understanding or weakening it would have such huge implications.

Judge Alito mused – if a president weren’t immune from criminal prosecution, wouldn’t that incentivize him to stay in office so not to be charged?  And wouldn’t that destabilize democracy?  We have an actual case of a president who tried through undemocratic means to stay in office, but Alito is worried that if we prosecute him, somehow democracy will be destabilized worse?  This is Alice in Wonderland logic.

Only Justice Ketanji Brown Jackson saw to the heart of the matter:  If there’s no threat of criminal prosecution, what prevents the president from just doing whatever he wants?” Right there is the point of our criminal law – to deter wrongful conduct.

The right-wing justices seemed to fear a greater danger from unhinged prosecutors who sought to prosecute their political enemies.  Apparently, they agree with their political master Trump that justice is generally a witch hunt.  They seem oblivious that such revenge and retribution is precisely what Trump has promised in a second term.  They even seemed to suggest that Jack Smith’s prosecution, with the traditional safeguards of grand juries and judicial oversight was itself dangerous and illegitimate.

Trump created a Supreme Court of right-wing ideological partisans, ready to do culture war battle on guns, civil rights, and abortion without recourse to precedent or logic.  We knew that.

The presidential immunity case has shown us this Supreme Court is far worse. The six “conservatives” are not even promoting legal theory or theology now.  By refusing to examine the case before them, they’re not even pretending to be judges in the American legal system.  Now they are nothing but partisan hacks doing Trump’s business in service to the continuing power of the Republican party.

Fomenting, implementing, and conspiring to create a coup to stay in office, to steal an election, cannot in any sense of the law or the English language be part of the official duties of an American president.

Unless, of course, you look at the problem from the close-minded viewpoint of six Republican enablers who are themselves immune from being removed, being overturned, or having their judgment rejected.  

These justices are not “conservatives.”  They are simply “CONS,” conning us into believing they are pronouncing truth.

The time has come to discuss Supreme Court reform (next week).

Only Biden/Harris with a Democratic Congress can take on this fraught issue in a reasoned and (small ‘d’) democratic framework.  Vote Blue.