Rogue SCOTUS Abandons Democracy In Her Hour Of Greatest Need


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‘Because We Destroyed Our Democracy On Our Own’

For long moments during yesterday’s Supreme Court oral argument on presidential immunity in Trump v. United States, the clock stopped and the outside world ceased to be and all I was left with was the blood rushing in my ears and a sinking feeling in my stomach.

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When Justice Samuel Alito, the most villainous political figure in my lifetime, asserted without any irony that prosecuting a president for refusing to relinquish power after losing an election might encourage future presidents to hold on even more firmly to their office, any remaining optimism I could muster about American democracy and its institutional ability to defend itself against tyranny drained away.

I don’t say that lightly or for effect, and I don’t want to make my personal feelings the point here. But when I woke up this morning and saw the news coverage writ large, it didn’t reflect what happened yesterday. We slid over the edge of a cliff, and we won’t stop now until we hit bottom.

For the second time this year, the Supreme Court encountered a Jan. 6 case and barely talked about Jan. 6, which would be amazing under any circumstance but is astounding considering the court’s own proximity to the riot. The auto-coup attempt happened right across the street from the Supreme Court building. As TPM first reported and was later confirmed by an IG report, the planners of the Jan. 6 Ellipse rally had also planned a second culminating rally for that afternoon on the steps of the Supreme Court itself. The only reason it didn’t happen was that the growing riot at the Capitol blocked access to the Supreme Court. As long as the guillotine falls on another’s neck, I suppose?

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As I’ve said here many times, the legal system can’t seem to appreciate the existential threat to itself that Trump and the MAGA movement represent. The hypotheticals batted around yesterday only confirmed that. Whether it was bribery or political assassinations or even another coup, Trump argued that he would be immune from criminal prosecution unless and until he was impeached by the House and convicted by the Senate.

But those and other hypotheticals presupposed for no obvious reason that there would still be a Congress around to impeach him and a court system to try him. Why would he tolerate an insolent Congress and a meddlesome Supreme Court in the first place? And if he had been so short-sighted as to leave the other two branches intact, why would a lawless president immune from criminal prosecution for official acts leave the White House after an impeachment conviction? Who’s gonna make him leave? Who’s gonna stop him? Certainly not this Supreme Court, we learned yesterday.

While the ultimate ruling in this case may soften some of the worst of what the justices said yesterday, even a “compromise” decision that allows the Jan. 6 trial of Trump to go forward is likely to lead to considerable delay – setting up the preposterous scenario in which the president who engaged in sedition against the United States gets to run for the office again before he is ever prosecuted for his first coup.

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The conservative justices had a opportunity to rally to the defense of democracy, to gird the system against further attack, to righteously defend the rule of law, and to protect its own prerogatives and powers against a wannabe tyrant who is counting on them to be his supplicants. They could have drawn a sharp line. They could have summoned indignation and outrage. They could have overlooked their partisan priors in favor of principle – or more cravenly in favor of self-preservation. With the possible and limited exception of Justice Amy Coney Barrett, they did none of that.

They failed in the worst possible way at the most crucial time.

The Best Of The Best

No one captured my experience of the day yesterday as well as Dahlia Lithwick and Mark Joseph Stern:

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For three long years, Supreme Court watchers mollified themselves (and others) with vague promises that when the rubber hit the road, even the ultraconservative Federalist Society justices of the Roberts court would put democracy before party whenever they were finally confronted with the legal effort to hold Donald Trump accountable for Jan. 6. …

On Thursday, during oral arguments in Trump v. United States, the Republican-appointed justices shattered those illusions. This was the case we had been waiting for, and all was made clear—brutally so. These justices donned the attitude of cynical partisans, repeatedly lending legitimacy to the former president’s outrageous claims of immunity from criminal prosecution. To at least five of the conservatives, the real threat to democracy wasn’t Trump’s attempt to overturn the election—but the Justice Department’s efforts to prosecute him for the act

The Irrepressible Ketanji Brown Jackson

So smart, so confident, and so direct. I came out of my seat when she asked Trump’s attorney: “What was up with the pardon for President Nixon? If everybody thought that presidents couldn’t be prosecuted, then what was that about?” What was up indeed.

Quote Of The Day

In the end, if it fails completely, it’s because we destroyed our democracy on our own, isn’t it?

Justice Sonia Sotomayor, during oral argument in Trump v. United States

Have A Cute Weekend!

Let’s not end the week on a glum note:

Quick story: When my first child was born, I had a 100-pound German Shepherd who I was super concerned about bringing a baby home to. So I read all the things about how to socialize a GSD to the new member of the pack: let him smell her a lot, put one of her spit-up rags in his crate, give him time to adjust. 

That first week I was pretty on edge, but then my mom came to visit her first grandchild. When she arrived, I was in my study with the baby asleep on my chest. My mom made a beeline for the baby – but when she got to the doorway, the GSD blocked her path.

She tried to sidestep him. He countered. She tried to push by him. He wouldn’t budge. He wasn’t mean about it, but he wasn’t nice either. And then I realized: HE WAS NOT GOING TO LET HER ANYWHERE NEAR THAT BABY. I called him off, and he reluctantly let my mom through.

In that moment, the baby was confirmed as part of the pack (and to my mother’s chagrin she was not). From then on, I relaxed about the dog and the baby, and we never had a problem. 

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