The earthquake rulings from the MAGA Roberts/Trump Supreme Court have shaken the whole country. The Court's opinion which grants blanket immunity to the Presidency for criminal actions in his “official” capacity has diminished former President Trump's legal jeopardy considerably. The Court's dramatic decision turns one of the pillars of democracy on its head, that no person is above the law. This particularly so as it was made in the context of Trump's attempted maneuvers to overturn a "free and fair" election.
Chief Justice Roberts has navigated the Supreme Court coup d’ etat skillfully since his ascendancy to the Court in 2007. While claiming to be an“Originalist”, interpreting the Constitution as it was originally written, he has merely used that argument as a rationale for many fundamentalist rulings. On the contrary they have often acted in opposition to the intent and substance of the Constitution making a mockery of the John Locke and Thomas Paine Age of Enlightenment inspired Declaration of Independence. America now has two kings - Donald Trump and John Roberts.
Anyone who believes theTrump era will not be historically significant is in blind denial. Not only will he be revolutionary politically, his legacy will live on for decades through his appointments to the Supreme Court. The impact of the Supreme Court on the American landscape had already been dangerously altered in the decades previously by the Robert’s court. Then Trump aided and abetted by the “GOP” Senate majority leader. Mitch McConnell unashamedly effected a coup d’etat of the democratic American order via the Supreme Court. The Robert’s Court became the Trump Court with the Chief Justice acting out his wildly revisionist agenda..
The Supreme Court court sessions running up to the 2024 election have benefited Trump royally. Whether by accident or design The Court has enacted the MAGA agenda as articulated by Trump and detailed in The Heritage Foundation’s Project 25.
So first let’s put the Supreme Court’s role in historical context. Jay H. Ell will argue this is counter to the Constitution, The Declaration and War of Independence.
THE SUPREME COURT, THE CONSTITUTION AND THE DECLARATION AND THE WAR OF INDEPENDENCE
Democracy at the best of times is a messy business. Every country has it’s own system based on common law and/or a constitution. A democratic state has two foundational features -elections which decide who the leaders are and provide accountability and the rule of law. American Democracy has as its basis a Constitution which was created with checks and balances and relies for its ultimate interpretation by the Judicial Branch as enunciated in Article 111, “The Judicial Power of the United States shall be vested in one Supreme Court and in such inferior courts….September 1787. The latter provision in the belief that the arbiters of the norms of society and the legislation by which it should be ruled would be wise and impartial “men”. The Founders laid out the formula of Presidential nomination and Senate confirmation with a view to obtaining an “independent judiciary free from partisan pressures’. So much for the Founders and their objective.
It is fair to claim that the zeitgeist behind the establishment of the Constitution was the 1776 Declaration of Independence authored by Thomas Jefferson ‘We hold these truths to be self evident that all men were created equal, that they were endowed by their Creator with certain inalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness. Every Founder and the Legislature at the time knew that was aspirational. Jefferson himself was a slave owner. The Constitution counted slaves as three fifths of a person in order to allow the Southern Staes more representation. It outlawed the stopping of the slave trade till after twenty years.
It is important to note that in “The Indictment” section of “The Declaration” was all about the tyranny of the unelected King George, “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the absolute tyranny over these state. To prove this let these facts be submitted to a candid world".
So it was obvious that the Founders thought the world would change - a point that the current Trump Supreme Court does not take. The Founders even left open axing the slave trade after 20 years! The very fact that there were progressive amendments to the Constitution is testimony to the fact that the interpretation of the originating work was just that, a work in progress.
THE AMENDMENTS TO THE CONSTITUTION
All in all there are 27 Amendments. Even the early ten - “The Bill of Rights” were enacted a few years after the date of the ratifying of the Constitution. The 12 that constitute the Bill were completed in 1804. It took 60 years and a Civil war to achieve the aspiration to rid the country of slavery and the next 3 amendments, 13th, 14th and 15th were written into the Constitution over a period of 6 years ending in 1870. The Era of Reconstruction. What followed nearly 50 years later was The Progressive Era, the 16th through the 19th Amendments. These included the decision to vote for Senate members, the establishment of income tax, prohibition, which was to be reversed 14 years late in 1933, and most importantly the right of women to vote.
The Modern Era spanned from 1933 to 1992, the 20th through to the 26th Amendments. Again these indicated progress. The landmark decision ridding the country of poll tax which had crippled the right of African Americans to vote was passed in 1964 accompanied by legislation championed by the Lyndon Johnson Presidency. In 1971 with 18 years being the draft age for the Vietnam war the consensus was to at least allow those who were putting their lives on a line the right to vote.
So, as the Amendments illustrate The Constitution is a living document not to be interpreted at the time the original was written. Even the Founders shortly after the inception sought to modify it immediately as that era demanded. The arcane fundamentalist “originalist” philosophy of The Robert’s court which morphed into The Trump Court is merely a subterfuge to turn back the clock - a judicial attempt to make America great again.
There is little doubt that the American Constitutional amendments have been driven by Jefferson’s directive even if the Supreme Court is stuck in the 18th Century. So onto some examples of how this all works in the real world.
THE ROBERTS SUPREME COURT
John Roberts was elected to Chief Justice of the Supreme Court by George W. Bush in 2007. The Republican majority of only one partially restrained his Court till 2017, the beginning of the Trump Court. The impediment to Robert's aspirations being largely as a result of Justice Kennedy who was “liberal” on social issues. Nevertheless he piloted a number of decisions which changed American society.
There can be no more important activity than the equality between citizens on the issue of voting and influencing the outcome of elections. As regards the latter an organization called “Citizens United” argued that the bipartisan McCain - Feingold legislation on controlling the swabs of money in elections was "unconstitutional". The bipartisan legislation had sought to limit corporate spending. The Roberts Court decided that corporations were “individuals” and had Freedom of Speech, First Amendment rights, so that could spend unlimited money on elections, any time any place. Hence the result in this election where, for example, Trump has offered the oil companies to axe environmental legislation for a billion dollars, Miriam Adelson for support of Israel has given a 100 million and Timothy Mellon a day after Trump’s conviction of 34 felonies donated 50 million to a PAC supporting Trump.
In 2013 the Roberts Court gutted the the Voting Rights Act which was an outcome of the Amendment to the Constitution which ensured non discrimination against African American voters. The Southern States that had been found guilty of preventing their vote had to obtain preclearance from the Justice Department for any changes in voting procedures. Roberts et al wished discrimination away and endless attempts have subsequently followed to suppress minority voting.
THE TRUMP COURT
Trump promised the Evangelical base Justices that would deliver on social issues and his corporate money backers that regulations that held them to account would be axed. His Court delivered and is still delivering. The most devastating ruling was the elimination of access for abortion, (2017 Dobbs decision), a 50 year old precedent under the Privacy Amendment. This has resulted in chaos in pregnancy care. Under threat is contraception and InVitro Fertilization. There is an 1861 Supreme Court ruling, (Comstock), that can easily be interpreted to ban contraception and invitro fertilization. In 2014 The Roberts Court in The Hobby Lobby decision had already given the latter the right to deny contraception cover in their insurance program
Second Amendment rights, guns,, received a massive hurrah when the Trump Court in their Bruen decision they basically opined "anything goes" as far as gun ownership was concerned. However for whatever reason they conjured up an exception not to allow domestic abusers to have the usual arsenal available to every citizen. The Roberts Court had already maintained that The Constitution didn’t mean what it said, namely that there needed to be “a well armed militia" rather than ordinary citizens could arm themselves to the teeth, (Heller).
Yet another revolutionary ruling kiboshing a 40 year old Law, the landmark Chevron opinion which clarified the role of Federal Agencies in making regulations. It stands to reason that Congress would not be able to pass every regulation in relation, for example, to the Federal Drug Agency. The latter has panels of experts and an overall expert body to see to the registration and monitor the safety and efficacy of medical treatments. The Trump Court annulled that practical arrangement in an angry judgement. The overall upshot will be that business will be no longer subject to regulations unless The Court so decides. The Trump Court earlier had done away with Quasi Judicial Courts, which again are experts adjudicating within their scope of expertise.
Having done away with the ability as to what Trump defines as “The DeepState”.,they left the worst for last.
TRUMP IS KING
Having expedited a hearing as to whether Colorado’s removal of Trump from the ballot for causing an insurrection very rapidly, they took six months to decide that virtually all “Official” actions of a President” are Constitutional. The upshot of this is many of the illegal acts that the 45th President executed are subject to immunity. The three liberal Associate Justices issued a vitriolic minority opinion claiming that they had anointed Trump a “King”. They maintained further that the Court, “..had reshaped the Presidency and made a mockery of the Constitutional Law that claimed that no one is above the law”.
Moreover they further made life much easier for the “MAGA King” in that he could have the unpopular anti abortion issues both ways. While he still could take credit for the end of Roe v Wade, they deferred two outcomes which he would have to defend, namely not deciding whether the abortifactant, mifepristone should be withdrawn from use and whether emergency care physicians had to stabilize severely ill patients with threatened abortions. The latter in States that said they could only effect care in the saving of a life. Both matters will re appear in The Trump Court’s docket after the election.
CORRUPTION
Financial malfeasance has dogged the Court particularly in relation to Justices Thomas and Alito both of whom have accepted largesse from those with interest in the outcome of litigation relating to big business. There was objective evidence that both should also have recused themselves involving the January 6 insurrection as their wives had supported the contention that Trump had won the 2020 election. Democratic Senator Sheldon Whitehouse has extensively documented the millions of dollars spent in the promotion of Trump nominees, Kavanaugh, Gorsuch and Barrett to The Court. He subsequently published his findings in a book entitled, “The Scheme”.
The Trump Court reversed a lower court's conviction of a mayor who had been given 13, 000 dollars following awarding a major contract to a local business man. The Trump Court reasoned that the money was not given before the decision and therefore could not be a bribe. It should rather be regarded as a gratuity and therefore was not illegal. Justice Ketanje Brown in her dissent said the Court’s reading, “was absurd and that only today’s court could love”.
AT THE END OF THE DAY
Once again the Court have conveniently abandoned their “Originalist" stance for creating constitutional law that flies in the face of the cardinal intent of the Founders whose central gripe was an unaccountable undemocratic king who was not subject to the rule of law.
President Biden could order the Navy Seals to eliminate a clear and existential danger to democracy, Donald Trump. This would be an “official act” not subject to criminal law.
The precedent of The United States v Richard Nixon has been annulled. President Nixon’s claim in the aftermath of his resignation, has been validated namely that“When the President does it, that means it is not illegal”.
If the Democrats clean sweep all three branches of government they should in addition to enshrining into law some of the rights taken away by the Roberts/Trump Courts also enlarge it. As 71 percent of the Americans don’t believe in Presidential immunity this is bound to be a central campaign issue.
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