On the day Donald Trump took office in January 2017, pondering what he might do to the country’s democratic norms and institutions, I wrote these words: “Trump will destroy them, if keeping Trump on top requires it. Or try to. He might not succeed. And that is where we rest our hope—on conservative judges who will choose our institutions over Trump. Mark my words: It will come to this.”
That hope seemed not misplaced back in 2020 and 2021, when a number of liberal and conservative judges, some of the latter appointed by Trump himself, handed Trump 60 or so legal defeats as he attempted to unlawfully overturn the election results. But after Thursday at the Supreme Court? That hope is dead. The conservative judges, or at least most of them, on the highest court in the land are very clearly choosing Trump over our institutions. And none more belligerently than Samuel Alito.
His line of questioning to Michael Dreeben, the attorney arguing the special counsel’s case, was from some perverse Lewis Carroll universe:
Now if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?
Let’s look to something I’d have thought lawyers and judges took seriously: historical evidence. American democracy has existed for nigh on 250 years, and power has been transferred from a president to his successor a grand total of 40 times (not counting deaths in office). On 11 occasions, a challenger has defeated a sitting incumbent—that is, a situation that creates the potential for some particularly bitter and messy post-election shenanigans.
Now, if Alito’s question really spoke to a malign condition that had hobbled American democracy throughout history and that loomed as a real problem that we had to take very seriously, it would stand to reason that our history suggested that these power transfers had had a wobbly history—that maybe, say, 12 of 40, and four or five of the 11, had been characterized by violence and unusual threats of retribution against the exiting executive.
But what does the record show? It shows, of course, that there is only one case out of the overall 40, and one case out of the more narrowly defined 11, in all of U.S. history where anything abnormal and non-peaceful happened. That, of course, was 2020.
And there was a lot of bad blood in previous transfers of power. You think John Adams loved the idea of handing power to Thomas Jefferson? John Quincy Adams was popping champagne to turn things over to Andrew Jackson? Grover Cleveland and Benjamin Harrison, who traded wins, weren’t bitter in defeat? These people couldn’t stand each other. But they did what custom required—a custom never questioned by anyone until Trump came along.
So in other words: Alito throws all that democratic history out the window and treats Trump as the new normal, assuming that the American future is ineluctably strewn with a series of lawless Trumps. Alas, with respect to the Republican Party, there’s a chance time will prove him right about that (but only a chance; my cynicism about the depths to which this GOP will sink is almost limitless, but even I think that Trump is most likely sui generis in this respect, and that your average Republican, even the neofascist ones like Tom Cotton, should we be cursed with a Cotton presidency someday, would probably yield power peacefully if he lost).
But think about what it says about both where Trump has delivered this country, and about Alito’s assumptions about democracy. On the former point: Have we now reached a place where challenges to election results are going to be the norm? Where an opposition party can be counted on to find some legal technicality on which to prosecute a former president, rather than leaving him or her in peace as we have throughout our history?
This is another twisting of reality. Trump, his defenders would protest, is the one former president who has not been left in peace. Well, that is true, I confess. But maybe there’s a reason for it! Actually, there are two. Trump has not been left in peace because a) it was always obvious he was not retired, and b) he’s the only ex-president who tried to foment a coup against the United States of America and who declassified sensitive national security documents with his beautiful brain.
And on the latter point: When George W. Bush named him to the court in 2005, experts told us—of course—that Alito was conservative, yes, but not an extremist (interestingly, Maryanne Trump Barry, Donald’s sister under whom Alito had worked as a prosecutor, was among those recommending Alito’s nomination). As The New Yorker reported in a 2022 profile, Alito was asked in 2014 to name a character trait that hadn’t served him well. His answer? A tendency to hold his tongue. Well, that problem’s been solved, eh? As writer Margaret Talbot noted of the justice, who ignored Chief Justice John Roberts’s importunings to strike a balance in the Dobbs decision, which he wrote: “He’s holding his tongue no longer. Indeed, Alito now seems to be saying whatever he wants in public, often with a snide pugnaciousness that suggests his past decorum was suppressing considerable resentment.”
And this week, he told us, in essence, that in his view democracy depends on allowing presidents to commit federal crimes, because if ex-presidents were to be prosecuted for such things, the United States would become a banana republic. That’s a Supreme Court justice saying that. And while Neil Gorsuch, Brett Kavanaugh, and even Clarence Thomas didn’t go that far Thursday, it was obvious that the court’s conservatives are maneuvering to make sure that the insurrection trial doesn’t see the light of day before the election—in other words, that a sitting president who very clearly wanted Congress to overturn a constitutionally certified election result (about this there is zero dispute) should pay no price for those actions.
When I wrote seven years ago that we rested our hope on conservative judges who will choose our institutions over Trump, trust me, I wasn’t saying I was confident that they would. I was terrified that that day would eventually come. It came yesterday. The conservative jurists chose Trump. It will stand as one of the blackest days in Supreme Court history.