AP Photo/Mariam Zuhaib
Kanu-SupremeCourt-070224
The Court decided not to listen to this guy.
For some time now, the truism of democracy which holds that “no man can be a judge in his own case” hasn’t actually held up in the United States, at least not when it comes to the U.S. Supreme Court.
As of Monday, another foundational principle of democracy, that “no man is above the law,” has also been rendered obsolete within our system.
The Supreme Court’s right-wing majority held in a historic and unprecedented ruling that presidents and former presidents are above the law—unless and until the Supreme Court says otherwise.
The ruling also effectively absolves former president Donald Trump for attempting a coup by unduly delaying the prosecutions against him, as well as carving out his specific conduct and directing the trial court to assess it under new immunity rules that all but guarantee that he won’t be held meaningfully liable. (I wrote in May that this would be the likely result.)
The decision gives presidents and ex-presidents absolute immunity from prosecution for actions related to their “core constitutional powers,” like the president’s power as commander-in-chief of the military, and “at least presumptive immunity” for any “official acts” taken in their capacity as president, as opposed to in their private or personal lives.
And who gets to decide what’s related to a core power, or what constitutes an “official” action?
“To ask the question is to know the answer,” Justice Ketanji Brown Jackson wrote in dissent. “A majority of this Court, applying an indeterminate test, will pick and choose which laws apply to which Presidents, by labeling his various allegedly criminal acts as ‘core,’ ‘official,’ or ‘manifestly or palpably’ beyond the President’s authority.”
The ruling means that any president or future president theoretically has immunity if he were to order the Army to stage a coup, or if he solicited and took a bribe in exchange for pardoning a convicted criminal, as the court’s liberal justices acknowledged in two separate dissenting opinions. But it also means that, as a practical matter, the nine justices are now the only officials in our democracy that can hold a president meaningfully accountable for committing actual crimes in office. No bloc of citizens, no prosecutor, no judge, no attorney general, no elected Representative, Senator or even a whole body of Congress can do that, unless the Supreme Court ultimately approves (or unless our Constitution is amended).
Congress still retains its impeachment powers, of course, but that full process has never played out in our history; and, impeaching Trump is a non-starter in today’s heatedly partisan environment, as we saw in Trump’s two acquittals after articles of impeachment were levied against him in 2019 and 2021.
To put it differently, the justices have the power to decide whether, when and how the president or a former president, or members of Congress for that matter, can be prosecuted or disciplined for ethics violations or for breaking the law. Separately, the justices have the power to strike down laws passed by Congress, regulations enacted by the executive branch agencies, and executive orders enacted by the President; they enhanced that power as it relates to executive agencies in the past week. But Congress and the President have virtually no say (again, as a practical matter) over the justices’ conduct and rulings, unless the Constitution is amended.
On Saturday, I wrote that the story of the Court’s 2024 term has been power, and how the Court has undertaken a project of reshaping and reducing the scope of the other branches sovereign powers, while also accruing more and more power for itself. That notion was the central theme in Justice Brown Jackson’s separate dissenting opinion. Here’s a sampling from that dissent:
“With its adoption of a paradigm that sometimes exempts the President from the dictates of the law (when the Court says so), this Court has effectively snatched from the Legislature the authority to bind the President (or not) to Congress’s mandates, and it has also thereby substantially augmented the power of both the Office of the Presidency and itself… [W]hatever additional power the majority’s new Presidential accountability model gives to the Presidency, it gives doubly to the Court itself… [U]ltimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future,” Jackson wrote.
The word “power” and a few variations appeared roughly 90 times in a Supreme Court ruling last Friday that limited the executive branch’s power to have final say over federal regulations, and transferred that authority to the Court. Today’s decision used the word “power” and its variants more than 200 times.
Indeed, it’s an unavoidable throughline in the Court’s 2024 term, which has demonstrated just how much power the justices have over national policy. In just the past couple weeks, the Court has revoked the Chevron doctrine, which mandated judicial deference to the executive and federal agencies’ determinations about regulatory law; it has limited those agencies’ ability to use in-house judges; and it functionally eliminated the statute of limitations on all challenges for agency regulations. In all these cases, that discretion—and power—was transferred to the federal courts, and ultimately to the justices.
Moreover, the term has also demonstrated how lacking our system is in terms of safeguards that can prevent or correct the Supreme Court when it oversteps its authority or engages in unjustified exercises of power.
That points us squarely back to questions of Supreme Court reform.
Although the White House seems to have largely dropped the idea, it seems clear that in the absence of reform the Court will continue to wield its power in palpably counter-majoritarian ways. and I don’t mean in the sense of protecting some disfavored minority group, but in the anti-democratic sense of thwarting good-faith, egalitarian policies preferred by the majority of Americans as well as Congress, as legal scholars like Nikolas Bowie of Harvard Law School have explained.
President Joe Biden’s commission to explore Supreme Court reform produced a number of viable and sensible options. Congress could curtail or end judicial review, the power the Court aggregated to itself to exclusively interpret the Constitution. Under this standard, a Court majority can strike down a federal law even if “the president, over five hundred members of Congress, and four” of their own colleagues disagree, like in the Shelby County ruling which restricted Congress from protecting voters from discriminatory state laws.
Even more modest proposals could further democratize the Court and judiciary, like prohibiting them from declining to apply laws passed by Congress unless they have at least a supermajority vote; or implementing sortition, random assignment and rotation into the process of appointing or assigning judges to the Supreme Court.
At this point, when a six-member majority is literally declaring a former president who appointed three of them to be functionally above the law, against all prevailing opinion, scholarship, analysis and experience, the case for court reform couldn’t be clearer.
