Democracy and Faith

Democracy relies on faith.  By this, I am not referring to the false piety of treacly faux Christians like Mike Johnson, who use the Bible to justify bigotry and cruelty in the name of God, but rather the faith ordinary citizens must have that the institutions that govern them are fair and that the representatives they have elected are operating in the best interests of those who put them in power.  While there will be inevitable disagreements on what those best interests are, when conflict is resolved with compromise and sincerity of belief, leaders can earn the faith the electorate has bestowed on them.

Currently in the United States that faith is critically lacking.  Each of the three branches of government sports poll numbers at or near record lows.  Poor approval ratings for the president and especially Congress are not all that unusual, subject to the “what have you done for me lately” mentality that exists with many voters.  For the judiciary, however, the erosion of confidence among the citizenry that judges conduct their affairs honorably and according to the law is both troubling and threatening.  For if the courts, particularly the Supreme Court, are seen to be contorting the law to conform to previously held beliefs and prejudices, how can genuine representative government survive?

The United States Supreme Court has a checkered history to be sure, one rife with many black marks, such as Plessy v Ferguson, Buck v Bell, and Korematsu v United States, but it has also demonstrated in many instances that it is the one place in government where ordinary citizens could get a fair shake.  In cases such as Roe v Wade, Loving v Virginia, Baker v Carr, Miranda v Arizona, and, of course, Brown v Board of Education, the justices ignored public opinion and rose above ideology to provide Constitutional refuge for those the national and state governments had unfairly marginalized or repressed.  Some of those decisions were condemned when they were handed down but afterward became cornerstones of American justice and the judges in those majorities earned widespread praise for courage and integrity.

One would be hard-pressed today to find many Americans not on the far-right who express similar sentiments.

Some of the conservative justices seem to be aware of how much they have alienated the majority of Americans.  Since Samuel Alito’s arrogant, condescending majority opinion in Dobbs, the middle three—Roberts, Kavanaugh, and Barrett—have each and sometimes together navigated just a bit toward the middle.  The Court stunned most observers in Allen v Milligan by disallowing a racial gerrymander in Alabama and almost certainly giving Democrats an additional House seat.  The decision was all the more surprising because similar challenges exist in a number of other states, which could ultimately cost Republicans their majority.

But Allen and some lesser examples aside, only those farther-than-far-right would characterize this Court as anything but arch-conservative, and critics can point to many examples, including Dobbs, where the majority shoehorned their opinions to fit into their ideology.

This week, however, Jack Smith gave them a chance to make a small dent in the prevailing distrust by asking to fast-track Donald Trump’s incredible claim that presidents enjoy full and unqualified immunity from criminal prosecution.  As the justices well know, this is a case they will ultimately decide anyway, the only question here being whether Trump will be allowed to come that much closer to running out the clock and avoiding a decision until after he’s president and can void the entire trial. 

Trump’s lawyers opposed Smith’s motion on the grounds that expediting the case would undermine confidence in the legal system, as if their client had not been doing precisely that for decades, this move merely being the most recent example.

That Trump’s argument is hogwash can be seen by the absence of a single authority on Constitutional law who thinks it is anything but absurd.  The best conservative law professors can do is agree with Trump’s lawyers that the sanctity of the judicial process must be maintained and the appeals court should not be bypassed, which is hogwash in itself.

To be clear, there is nothing in Article II, not a word nor phrase nor hint, that suggests that a president is free to commit any variety of felonies without fear of prosecution.  Nor did any delegate to either the Philadelphia convention or the state ratifying conventions suggest that would be the case.  Fearing despotism, they were far more interested in limiting presidential authority than in expanding it. 

Even “executive privilege,” the right of a president and his associates not to reveal the content of communications, either written or verbal, that might impede his or her ability to govern is not an expressed Constitutional right.  Thus, the notion that, as president, Trump could, as he once suggested, shoot someone dead on Fifth Avenue, without any fear of indictment is—as much as it would pain him to admit it—not in the Constitution.

Trump’s lawyers’ other assertion, that his impending trial for election interference would constitute double jeopardy because he has already been acquitted in the Senate after being impeached in the House, is also ridiculous.  Impeachment is an administrative, not a judicial proceeding.  The penalty for conviction would simply have been removal from office, as Mitch McConnell pointed out in calling the issue moot.

As the case now stands, Trump’s lawyers have appealed Judge Tanya Chutkan’s dismissal of the motion to the court of appeals, which has agreed to an expedited schedule but set no firm timeline.  As a result, Judge Chutkan had no choice but to pause the case pending resolution of the appeal.  Whether that appeal has to work its tortuous way through circuit court or be heard, as it should be, as soon as possible in the Supreme Court, is up to five of the nine justices.

There are other hot-button cases pending before the Court, such as a proposed ban on mifepristone distribution, but in each there is at least some hint of genuine legal arguments on both sides. 

Here there are none.

As such, denying Smith’s request on a technical rule of procedure that the Court has overlooked in the past would continue the nation’s loss of faith in democracy and speed our descent into spiritual anarchy.

Democracy is unlike other systems of government in that it requires “consent of the governed.”  Such consent may be grudging, but without it, the system will collapse.  And consent will not be granted unless the participants have faith that the system is not so dishonest or so unfair that working within it is fruitless.  If that occurs, conflict resolution, the key to success for any system, will move from the institutions of government to the streets or the battlefields.

The conservative justices on the Supreme Court, especially the middle three, are faced with a clear choice—they can continue to contribute to the corrosion of the American ideal or decide that it is their duty to try to hinder it.