Thoughts on the Supreme Court Hearings on ‘Presidential Immunity’
Take but degree away, untune that string,
And, hark, what discord follows!…
Force should be right; or rather, right and wrong,
Between whose endless jar justice resides,
Should lose their names, and so should justice too.
Then everything includes itself in power,
Power into will, will into appetite;
And appetite, an universal wolf,
So doubly seconded with will and power,
Must make perforce an universal prey,
And last eat up himself.
— Shakespeare, Troilus and Cressida, 1.3
When the Founders wrote the US Constitution, they wisely established three separate branches of government — Executive, Legislative, and Judicial — to maintain a balance of power, and thereby avoid the ever-present danger of tyranny. The role of the Judicial branch was to “establish justice,” the sovereignty of the Rule of Law, based on the Constitution as interpreted by ongoing litigation, in a way that insulated it from the arbitrary power of the Executive branch, or the chaotic political crosscurrents of the elected legislative bodies. Therefore, at the apex of the Judiciary branch of government, they created the Supreme Court, whose justices, appointed for life and free from electoral pressure and from executive meddling, could safeguard the Constitution and the rule of law from one generation to the next. For this reason, prospective Justices, appointed by the President, would be subject to intensive scrutiny by the Senate before they were seated, to ensure that they upheld the highest standards of integrity, legal knowledge and experience, and seasoned wisdom. Throughout our history, therefore, the Supreme Court has been an indicator of our national character at its best. While politicians, including the President, could easily be swayed or corrupted by vested interests , the Supreme Court was widely held to be incorruptible, and thus a check on the excesses of legislative or executive power, both federal and state. Their perceived integrity was a mainstay of our system of government, an assurance that no matter what happened, justice and the rule of law would prevail for everyone, without exception.
I myself had a firm faith in the rock-solid soundness of our system of government, based on the integrity of our Supreme Court, until December 12, 2001, when my faith was shaken to the core. That was the date when a 5–4 majority of Republican-nominated justices arbitrarily handed a disputed election to George W. Bush, after Al Gore had won the popular vote nationwide by half a million votes, and the electoral outcome hinged entirely on Florida. Here, the Secretary of State, Katherine Harris, who was responsible for certifying the outcome, was also chair of the Bush campaign in Florida, and the electoral process over all was so hopelessly corrupted and compromised that the Florida Supreme Court had decreed a statewide recount to establish the outcome. But the Bush campaign appealed this decision to the Supreme Court, even though George W. Bush was not a Florida resident, and thus had no standing to sue.
Nevertheless, in Bush vs. Gore, the right-wing majority aborted this recount — and none of the five signed the decision (since they were obviously ashamed to do so), and they arbitrarily appointed Bush as the winner of the election, thus completely violating the Constitutional separation of powers. Nearly a quarter-century later, this fateful and monumentally corrupt decision still fills me with rage and fury; I remember at the time that I posted an image on my office door of Edvard Munch’s The Scream, and under it, the caption: RIP USA 1776–2000.
So the horrible Bush regime took power, with its unprecedented abuses of power, erosion of civil liberties, fearmongering, increased surveillance, and illegal invasions of Afghanistan and Iraq based on fraudulent premises, and in clear violation of a core provision of the UN Charter, forbidding member nations from launching an invasion or take-over of other member nations under any circumstances. (Needless to say, Putin could later cite Bush’s invasions as a precedent for his own invasion of Ukraine.)
This right wing Court further sank into depravity in the “Citizens United” decision, removing all constraints on corporate spending or “dark money” in elections, based on the flimsy premise that “money is speech,” and guaranteeing that only those who appeased the rich and powerful would have any chance of getting elected to office.
But then, with the entirely legitimate elections of Obama thereafter, it seemed as if order was partly restored — until Justice Scalia died in 2015, and then Senate Majority Leader Mitch McConnell broke all precedent by refusing to initiate the customary Senate review of Obama’s (fully qualified) nominee, Merrick Garland, to replace Scalia, insisting rather that the Republican-dominated Senate would wait until after the 2016 election to find a replacement for Scalia.
Then, as we all know, Trump became President, and during his single term got to stack the Supreme Court with three of his own choices: Neil Gorsuch, (brother of Anne Gorsuch, G. W. Bush’s do-nothing EPA director); then the sleazy, beer-swilling rapist Brett Kavanaugh, and finally — as a lame duck President after the 2020 election — he nominated the Christian fundamentalist zealot Amy Coney Barrett and Republican senators completely abandoned the rationalization they had loudly proclaimed earlier to deny Obama the right to nominate a Supreme Court candidate in his last 16 months of office.
These appointments gave the ideological far right a six-seat supermajority on the Court, who wasted no time in abandoning the Supreme Court’s long tradition of adhering to precedents ( having lied to Congress during their hearings about their respect for precedent) when they revoked Roe vs. Wade, leaving women in most red states with no reproductive rights at all.
So most of us, other than fanatical right-wing ideologues, already know that the Supreme Court has been corrupted beyond our forefathers’ imagining. We know, for example, that Clarence Thomas and Samuel Alito have both accepted lavish trips and other favors from billionaires with business before the Court, yet refuse to recuse themselves from these cases, and we know that Clarence Thomas’s wife was deeply involved in Trump’s far-reaching plot to thwart the legitimate outcome of the 2020 election.
Recently, these right-wing Justices have reached a new low, which has filled me with terror and disgust to a degree I haven’t felt since the stolen election of 2020. I refer, of course, to their decision to take up Trump’s appeal of the unanimous Court of Appeals decision denying his utterly absurd claim of total immunity from prosecution in the Government’s case against him for plotting to overthrow the outcome of the 2020 election (leading directly to the treasonous assault on the capital on January 6, 2021). This Court of Appeals decision was based on watertight legal grounds: that the President is not above the law, hence is liable for gross violations of the law, like any other citizen.
Not only did the Supreme Court accept this appeal for deliberation, but they also played directly into Trump’s hands by delaying hearings on it as long as possible — until the end of April — to decrease any likelihood that this landmark case would come to trial before the November election!
But worst of all was the recent hearing, where the right-wing justices — especially Alito and Kavanaugh — used appallingly twisted logic to suggest that total Presidential immunity from prosecution, both during and after his term in office, was necessary to “safeguard democracy” by preventing future presidents from arresting and bringing criminal charges against their predecessors (something that had never once happened in the previous 235 years of our nation’s history). They bought into Trump’s outright lie that his trial had no legal basis and was a Biden-sponsored “witch-hunt” to destroy his opponent. (Biden had absolutely nothing to do with this or any other case against Trump, all of which indictments were based on a vast array of solid evidence of criminality; in fact, Biden has scrupulously kept out of these criminal cases altogether.)
This utter perversion of legal reasoning by these justices clearly indicates that they plan to rule in Trump’s favor, either granting him partial or total immunity from prosecution for his elaborate plot to thwart a free and fair election — first by a host of frivolous lawsuits that were summarily thrown out of court; then by a plot to appoint fake electors in multiple states; and finally by fomenting a direct and terrifying mob assault on the Capitol to disrupt the time-honored bipartisan procedure of formally certifying an election whose outcome had already been determined and all electoral challenges already resolved.
What are the implications of all this pseudo-legal pandering? If, through the lopsided advantage conferred by the Electoral College on rural states or due to outright fraud and intimidation of voters, Trump wins or steals the November election, he will effectively become king, entirely overthrowing the very foundation of our democratic republic (based on the major premise that “all men are created equal” and hence, nobody is above the law). Given his past egregious abuses of power, there is no real doubt that Trump will eagerly use his kingly power to surround himself with vile sycophants, eviscerate the civil service, and then persecute, arrest, and even murder any and all who oppose him in any way. America as we know it will die, to be replaced by a totalitarian regime, lorded over by a delusional, vindictive, terminally narcissistic, truthless criminal psychopath. (And I will probably be arrested, jailed, or simple dispatched for publishing this article.)
Please…we must all vote for Biden. I don’t care whether you like him or not! Otherwise we will face a nightmare beyond imagining.