Jonathan P. Baird lives in Wilmot.
In the annals of American history there have been some truly horrible Supreme Court decisions. I have always thought Dred Scott v Sandford was the worst. Saying African Americans had no claim to freedom or citizenship was a disgrace and humiliated the Court.
But there are other cases that are contenders for the worst. Plessy v Ferguson, the 1896 separate but equal decision and Korematsu v United States that upheld the internment of Japanese Americans during World War II are in the running. So is Buck v Bell, a 1927 decision that permitted compulsory sterilization of those deemed unfit, “imbeciles” and others considered undesirable.
I would also include Dobbs v Jackson Women’s Health Organization, the 2022 abortion decision that overturned Roe v Wade. What other case has taken away a constitutional right? What kind of court strips people of their rights?
Still, in the mix, is a new contender:United States v Trump, the presidential immunity decision, decided on the last day of the Court’s last term. That case may be the new worst. Not only did the Court do Donald Trump a huge political favor of delay, but the Court majority essentially decided that none of his illegal schemes mattered. Trump wanted no more of his cases heard before the election this fall and the Court majority could not have been more cooperative. They delayed to the last possible minute.
The majority opinion was written by Chief Justice John Roberts. While he had previously been described as a moderate institutionalist, this opinion clarified and cemented that he is as much a hardcore reactionary as the other far-right justices.
In writing a decision “for the ages,” it ensured that if Trump wins a second term, he will be able to exercise dictatorial power without fear of consequences. To quote from Justice Sotomayor’s dissent: “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power the President is now a king above the law.”
Justice Sotomayor says the Court majority “invents an atextual, ahistorical and unjustifiable immunity that puts the President above the law.” Article II of the Constitution doesn’t mention immunity. The doctrine is entirely court-created. Justice Sotomayor notes the majority’s expansive view of presidential immunity was never recognized by the Framers.
Lost in the majority opinion is the understanding that the Framers went to the Constitutional Convention in Philadelphia in 1787 determined not to replicate the British monarchy they had fought so hard to defeat. They may have disagreed about the relative power of different branches of government but the Framers had a deep antipathy and distrust of executive power.
It was abuse by Great Britain’s King George III and his royal governors that lit the fire of the American Revolution. The Framers all agreed that the president’s power should be limited. Key participants in the Constitution’s ratification debates emphasized that the president would remain subject to criminal prosecution. The historical record demonstrates intense anti-monarchical sentiment and a heavy presumption against presidential immunity.
James Madison warned a chief executive “might pervert his administration into a scheme of peculation or oppression.” He said a president’s corruption “might be fatal to the Republic.”
What makes United States v Trump so bad is that the Court majority is recreating, to again quote Madison, “another runaway monarchy.” If Trump wins again, he will dismiss the Federal Court cases filed against him and figure out a way to do crimes within his official duties. Juries won’t be able to consider evidence of his official acts or inquire into his motives.
The crime of which Trump stands accused, conspiracy to thwart the peaceful transfer of power following the 2020 election, is exactly the lawlessness the founders feared most. They warned about conspiracies to maintain power, disregarding the popular vote. This is the ultimate crime against the people.
No decision of the Supreme Court has ever cut more against the American ideal of democracy and popular rule than United States v Trump. It was designed to make criminal prosecution of a president impossible and it sent a green light message to Trump. In a second term, he could use the Department of Justice or the military as he wishes. The Court won’t interfere.
The Court majority said there is less protection for unofficial, private acts but they wrote the decision in a way that renders unofficial acts a nullity. Justice Sotomayor highlights the “law-free zone around the President” and lays out nightmare scenarios that could play out as a result of the decision.
“When he uses his official powers in any way, under the majority’s reasoning, he will now be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organize a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Democrats have been slow to recognize the gravity of United States v Trump. If Trump wins in November, this case is a license for dictatorship. It is hard to imagine how a case could be worse.