In Any Other Country

We'd see the coup; here, we only see problematic jurisprudence.

Let’s try a thought experiment. Suppose you heard that in another country, a defeated former president who had attempted a coup was granted immunity for that coup by six Supreme Court judges, half of whom he had appointed; that this attempted coup included a widely-televised, deadly assault on the nation’s capitol intended to prevent the certification of his defeat in the last election; and that the Court’s immunity ruling came just months before a next election in which this defeated president is once again a candidate, seeking to recover the powers he previously abused.

What would you expect the focus of news reports about that Supreme Court’s ruling to be? 

1. Debating whether the ruling itself aligns with the history and traditions of that nation’s legal system, or

2. Explaining the Court’s role in an ongoing authoritarian coup.

The Fact Pattern in the Foreign Nation

Let’s add more details to this scenario.

Consider that the defeated president’s loss in the last election was:

• Decided by the second-largest popular vote margin in the last six elections, and by the defeated president’s loss in five key states he had narrowly won in the previous election

• Independently confirmed by the defeated president’s own copartisans at many levels, including: 

  • Monitors at every voting place 

  • Members on every canvass board assenting to the count 

  • Governors certifying the results in both of the key, narrowly-won states where the president’s party held that office 

• Validated by courts, which rejected over sixty legal cases brought by the defeated president or his allies – with many rulings made by judges appointed by him or his copartisans 

• Acknowledged as valid by the Senate majority leader, also a copartisan

The defeated president tried to overturn the results of this thoroughly-validated election by:

• Pressuring his Justice Department to baselessly claim there was fraud, even after his own attorney general investigated those claims and told him they were “bullshit”

• Attempting to bully a copartisan secretary of state to illegally “find” him the votes he needed to win, in a telephone conversation which was recorded and released to the public

• Pressuring his copartisan vice president to unconstitutionally overturn the results

• Summoning supporters who believed his lies to come to the nation’s capital city – and then, knowing that those supporters were armed, inciting them to “fight” for their country as they moved toward the Capitol building, where they: 

  • Breached the building, an act that had not occurred for more than two centuries, and then only by a foreign army

  • Brutally assaulted police officers, one of whom died the next day, four of whom later died by suicide, and 140 of whom were injured, in many cases severely 

  • Built nooses to hang the vice president for refusing to go along with the defeated president’s blatantly unconstitutional plan

• Rejecting pleas from his family, senior staff, copartisan congressional leaders, and cabinet members to urge his followers to stand down for 187 minutes, while watching the attack on TV

Three and a half years later – even as the defeated president continued to claim the insurrectionists were patriots and political hostages, and even after he promised to pardon them (and otherwise act as a “dictator on day one”) if reelected – he was granted immunity from almost any criminal prosecution by six judges on the Supreme Court.

Those six copartisans either acted in alignment with the defeated president and his attempted coup, were nominated by the defeated president himself, and/or had a history of partisan or ideological activity.

They included:

• Three justices the defeated president himself appointed, including:

  • One justice whose appointment was only made possible by his copartisan legislative leader’s unprecedented decision to block any consideration of the previous president’s nominees for 9 months before the next election

  • A second justice who was confirmed despite unresolved allegations that he had lied about prior misconduct, the investigation of which was cut off by the president, and who also:

    • Worked on the legal team advancing the interests of an earlier copartisan president’s successful effort to get the Supreme Court to intervene on his behalf. That intervention stopped legitimate votes from being counted in the state whose governor was that presidential candidate’s brother, and whose secretary of state was that candidate’s state campaign chair. A dissenting justice of that president’s own party said this case was wrongly decided,¹ and subsequent tabulations by a media consortium indicated that if the count had continued, his opponent would have won the state and the presidency.

    • Later served as associate for an independent counsel who investigated a prior opposite-party president.² After failing to find evidence of the financial impropriety that was the original justification for the appointment of an independent counsel, this independent counsel broadened his investigation into this opposite-party president to include consensual sex, setting him up for perjury that the independent counsel would argue to be grounds for impeachment.³

    • Testified at his Supreme Court confirmation hearing that “No one’s above the law in [this country], that’s a foundational principle. … We’re all equal before the law. … The foundation of our Constitution was that…the presidency would not be a monarchy. …[T]he president is not above the law, no one is above the law.” Yet, he rejected this core component of the nation’s law to aid the defeated president, and effectively pardon him for some of his past crimes, by declaring for the first time in the nation’s history that he has absolute immunity for “official acts.”  

  • A third justice who: 

    • Had her nomination rammed through one week before Election Day, after: 

      • The same copartisan Senate majority leader who engineered her appointment had, four years earlier, refused to consider the opposite party’s nominee because 9 months was too close to the next election

      • Tens of millions of people had already voted

      • Polls (accurately) forecast the later-defeated president who nominated her would lose

      • The defeated president said (referring to his own pending election and to this justice’s nomination): “I think this will end up in the Supreme Court. And I think it’s very important we have nine justices.”

    • Had, as a law firm associate, helped assist the earlier copartisan president who had relied on the earlier Supreme Court to stop the vote counting and put him in office

• Two justices with blatant conflicts of interest: 

  • One (and the fourth vote for immunity) who: 

    • Flew insurrectionist flags at his home and beach house, which the justice lied to reporters about 

    • Took and didn’t report gifts of private jet travel from a billionaire supporter of the now former-president

    • Refused to recuse himself despite a federal statute requiring him to

    • Was caught on tape admitting that, regarding the battle between the political right and left in his country, “One side or the other is going to win … there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So, it’s not like you’re going to split the difference.”

    • Testified at his confirmation hearing: “There is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law.” Yet, he rejected this core component of the law to aid the defeated president and effectively pardon him for some of his past crimes by declaring for the first time in the nation’s history that he has absolute immunity for “official acts.”  

  • And the other (the fifth vote): 

    • Whose wife was actively encouraging the effort to reject the legitimate results of the election – in direct communication with the defeated president’s chief of staff as it was happening, hoping for its success – and was a major activist in league with the groups supporting the insurrection

    • Who broke federal laws by not reporting millions of dollars worth of gifts from billionaire supporters of the former president and his party

    • Who then refused to recuse himself despite clear guidelines requiring him to

• And finally a chief justice (the sixth vote) who: 

  • Was part of the legal team for the earlier co-partisan president who was installed by the earlier Supreme Court, helping to prepare the legal arguments and providing strategic advice

  • Said at his confirmation hearing: “I believe that no one is above the law under our system and that includes the president. The president is fully bound by the law, the Constitution, and statutes.” Yet, he wrote the edict rejecting this core component of law to aid the defeated president, and effectively pardon him for some of his past crimes, by declaring for the first time in the country’s history that the president has absolute immunity for “official acts.”  

  • Rebuffed calls for him to urge the recusal of the two conflicted justices or even explain why they should not be recused

And all six justices have current or former associations with, and were nominated at the behest of, a billionaire-funded, ideologically motivated organization that:  

• Spent millions of dollars on the campaigns to confirm each of the six justices – whose later decisions resulted in likely billions of dollars worth of corporate deregulation 

• Has a mission to pack the Supreme Court (and lower courts) with political operatives who are dependably sympathetic to its theocratic and pro-corporate agenda – a project now nearly complete, but whose legacy will only be secure if the defeated president is elected again this year (because he could turn this project’s 6-3 majority into a 7-2 majority with much younger justices)

This six-justice faction took just two months to reverse a state supreme court decision that had barred the defeated president from the ballot for being an insurrectionist (which was unambiguously prohibited by this nation’s Constitution) – and in the process went further by weakening the country’s constitutional protections against insurrectionists.

This same judicial faction provided this same defeated president de facto immunity after a federal grand jury indicted him for election subversion – delaying his trial until after the next election, by: 

• Refusing to accept a case six months ago that would have decided much earlier whether and how an insurrection trial could proceed

• Intervening to delay the insurrection trial four months ago – which would have otherwise begun within weeks – by setting aside the unanimous rejection by a bipartisan appeals court of the defeated president’s claims to absolute immunity – the same question the Supreme Court had just refused to consider 

• Delaying hearing the defeated president’s appeal until the last possible day of oral arguments – two months later (the same amount of time that it took for the whole process of putting him back on the ballot)

• Delaying yet another two months, until the very last day of the session, to announce the final decision, ensuring that no verdict would be returned before the defeated president was nominated by his party 

Then this six-justice faction provided this defeated president de jure immunity for some of the charges against him, including by barring critical evidence. 

Respected legal experts across the ideological spectrum condemned the ruling. For instance:

• A “profoundly made-up (and deeply misbegotten) evidentiary holding” (Steve Vladeck, Georgetown University law professor)

• It “cast aside the text, structure and history of the Constitution in favor of gauzy concerns.” (Kate Shaw, University of Pennsylvania Carey Law School professor who clerked for Republican appointees Justice John Paul Stevens and Judge Richard Posner)

• “It jettisons the long-settled principle that presidents, like all others, are subject to the operation of law.” (Shaw)

• “I don’t recall an occasion when a lawyer in a big case made a major concession to his client’s apparent detriment—which he’d obviously deliberated over prior to making and decided his credibility as an advocate required it—and yet an appellate court second-guessed the lawyer.” (Andrew McCarthy, legal analyst at the arch-conservative National Review, expressing surprise that the Court did not accept the concessions that Trump’s own legal counsel John Sauer, under pointed questioning by none other than Justice Amy Coney Barrett, made regarding allegations that the so-called fake-electors scheme would be considered a private act and would therefore not enjoy immunity) 

So, ask yourself: If the above chain of events happened anywhere outside the United States, what would our news coverage and national conversation about it look like?

I’ve been writing extensively at Weekend Reading about how to make our national conversation reflect this full scope of the crisis we face.

Below are recaps of a few key insights.

Contextual Amnesia

I’ve seen plenty of media analyses that critique the ruling as poorly reasoned or dangerous. Yet almost none of them make clear that this is not an error, but part of an ongoing constitutional counterrevolution.

“Contextual amnesia” is what I call it when an individual forgets or overlooks relevant information. The media eagerly printed exposés of Alito’s flag flying and other isolated controversies, and called for him to recuse himself from consideration of the January 6th cases, but – once the cases were handed down, flushed that context down the memory hole. To the extent they hint at anything other than honest jurisprudence, it’s that the justices are “conservative” in their ideology. 

But these justices are not “conservative.” As I’ve explained, their rulings do not adhere to any consistent legal principle, much less a “conservative” one. They are enablers of plutocracy and theocracy, ready to twist the Constitution beyond recognition for their desired outcome, using what I call the “Originalist Con” to give those contortions an air of legitimacy.

A Minority Court

Often, countermajoritarian provisions of the Constitution are justified as necessary to protect a minority from the passions of the mob. But the Federalist Society court has been doing the opposite – upending democratically enacted laws in favor of that minority at the expense of the majority – and often at the expense of democratically enacted laws to protect the basic civil and human rights of other minorities. 

It is not defense or judicial restraint; it is offense and judicial counter-revolution. It has transformed the Supreme Court into the most powerful national legislating body in the United States for more than a decade.  But, unlike the Congress, it faces no democratic accountability and operates largely in secret. 

Moreover, the Federalist Society court wields its power despite being confirmed by senators who represent less than half of the U.S. population. All but one of its six members were nominated by presidents who did not win a majority of the vote in their first election. Five of the six MAGA justices – Alito, Thomas, Barrett, Gorsuch and Kavanaugh – are the only five of the 116 justices to serve on the Supreme Court to have been confirmed by senators representing less than one half of the US population. 

The panel on the left shows how dramatically different the situation was just 24 years ago, when, with the exception of Thomas, every justice on the Court was confirmed by senators representing at least two thirds of the US population, and six were confirmed by senators representing 90 percent of the US population.

In previous eras, Supreme Court justices took care to reach consensus when overturning major precedents with profound impacts on our lives. Not anymore. 

The Roberts court has completely remade federal elections to advantage Republican interests—in nearly every instance on a straight party-line vote.

This has amounted to decades of election interference—from helping return the former Confederate states to one-party rule, to shielding Trump from legal accountability before ballots are cast in November. 

1. "The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law." -John Paul Stevens, Bush v. Gore dissent

2. And was most likely the Starr grand jury leaker, although it hasn’t been formally proven.

3. Kavanaugh memo