Happy Independence Day…Hope It Isn’t Our Last

When the Supreme Court returned its presidential immunity decision, many commentators appeared aghast, much like Claude Rains in Casablanca, who exclaimed, “I’m shocked…shocked…that gambling is permitted,” just before Marcel Dalio appears with a wad of cash and says, “Your winnings, sir.”

What were they expecting?

The handwringing by Democratic politicians and left-leaning legal analysts over the Court’s contemptuousness was predictable.  But so were the bounds of the decision.  Could anyone who has been paying the least bit of attention to the Court’s behavior over the past twenty years not have realized that the six conservatives would rule that a president had full immunity for any official act, no immunity for acts outside his or her official duties, and that where Donald Trump’s felonious behavior fit in that continuum was beyond their ability to decide?

What else could they do without undermining Trump’s chances to be elected in November, something that, by their foot-dragging, they had already given ample warning they would never, ever do?  In earlier times, not looking so openly partisan might have been an incentive to rule with at least the pretense of fairness and honor, but these conservative justices clearly deem themselves impervious to criticism, ridicule, and the strictures of their oaths of office. 

Despite the lofty verbiage in their prolix opinions, the Roberts majority has made it quite clear that they are not objective arbiters, in pursuit of “equal justice under law,” the Court’s now hollow-sounding motto, but rather determined political operatives, committed to using what has become their immense and uncontrolled power to create a United States in which the values that they cherish will be cemented as “supreme law of the land,” heartless, cruel, and anti-democratic though they may be.  What is worse, most of them, especially Alito and Thomas, don’t seem to care who knows it.

Because of the failure of the delegates to the Constitutional Convention in 1787 to adequately define the limits of Supreme Court authority, these justices have been allowed to become a frenzied juggernaut.  They define the limits of legislation, both national and state, the authority of the president, and they apply their own interpretation, no matter how arbitrary, to any law on the books, regardless of its intent or clear meaning.  (Thus, the first clause of the 2^nd Amendment, “A well-regulated Militia, being necessary to the security of a free State,” has been effectively scratched out, despite the stated objective of James Madison, the man who drafted it, that the amendment ensure only that a militia would be armed and ready if needed.)

It would not be much of an overstatement to assert that the Supreme Court now runs the country.

This nation has been split into warring factions before, once sufficiently to spark an actual war, but never in our history have the fundamental tenets of constitutional democracy been rejected by such a broad segment of the public, elected officials, and justices of the Supreme Court.

Reversing this trend will be a challenge and the best way to go about blunting the shift toward dictatorial rule is to win.

Until the presidential debate, it appeared that Democrats…and democrats…might do just that, holding the presidency and perhaps even both houses of Congress as well.  From there, it would have been possible to limit the Court’s jurisdiction, as authorized in Article III.  (I suggested an even more far-reaching approach in an earlier post.)

But unless Biden finally grasps what just about every other American seems to know—that he will lose and take the party down with him—attacking the Court through the other two branches will be a near impossibility for at least four years, and probably a good deal longer.  It cannot be labelled totally impossible because Trump is also such a weak candidate that Biden could confound the odds and win…although no should run down to their local betting parlor on that prospect.

If Biden does finally yield to both increasing pressure and the obvious, the task will still be far from easy.  Democratic party pros will have to nominate a presidential candidate who can win and then bargain with, cajole, and arm-twist the other contenders.  This will be especially dicey with Kamala Harris, who views herself as the presumptive replacement, but whose track record both as a candidate and vice-president has not ignited the sort of fervor that Democrats would need in an abbreviated race.  Her poll numbers are none too great either.

Still, as was pointed out to me by a local savant, she might turn out to be a better choice than many people (including me) think.  As he noted, Democrats’ lackluster support among Black and Brown voters would likely disappear and she alone could access the $240 million or so that the Biden/Harris campaign has raised. 

Nonetheless, while Harris might be an enormous improvement over Biden, she is far from the strongest candidate the party can muster. 

If, however, the party succeeds in dissuading Harris—maybe with a promised Supreme Court appointment if there is a vacancy—they could nominate a fresh, new face who can excite the electorate and also be better positioned to exploit the electoral college.  Gretchen Whitmer, for example, could provide a big boost in the Midwestern states that will likely decide the election.  (A Harris/Whitmer ticket would be an intriguing possibility.)  The party could then turn its attention down-ballot, where candidates for national, state, and even local offices would also receive a major boost.

But Biden claims to be going nowhere.  Rather than try to save the party and the country, he has expressed determination to “fight on,” a euphemism for an arrogant old man’s unwillingness to think of anyone but himself. (And so much for thinking of Jill Biden, his chief enabler, as an admirable First Lady or even a loyal wife. She is setting her husband up to be horribly humiliated.)

If patriotism and party loyalty won’t sway Biden, money will.  It’s got to dry up.  Every time I now receive a solicitation for funds from any candidate—and I receive such requests from many, many of them—I’ve replied that I will not give another cent to any Democrat while Biden remains at the head of the ticket.  Jeffrey Katzenberg I’m not, but if that idea gets around, sufficient pressure may be mustered to force him out.

If he stays in, the Democrats will not win. If the Democrats do not win, they cannot reform the Court.  And if the Court is not reformed, this nation will lose whatever democracy it has left.

So much for Independence Day.