This is a somber Fourth of July for me, because of the grave danger we’ve suddenly found ourselves in.  Today, I’m worried less about people flaunting swastikas and KKK regalia while rioting in Charlottesville than (of all things) our Supreme Court.

 

This concern is not impulsive.  Neither is it a matter of simply disagreeing with the court’s rulings.  I’ve disagreed with a number of them up to this point without seeing any cause for alarm, because it was clear they were following a logical path of reasoning—and hey, they have years and years of legal expertise, and I don’t. 

 

Things are now changing in a more fundamental way, though.

 

Case in point:  Clarence Thomas’ acceptance of extravagant gifts from entities that he knew would have business before the Court—and then not even bothering to recuse himself from those cases.  Thomas has made it clear that the only code of conduct he’s willing to commit himself to is one that’s lower than what’s expected of ordinary clerks in the most obscure and inconsequential nooks of the federal bureaucracy.  

I worked for the federal government for a few years, and it was drilled into all of us that we were expected to avoid not only wrongdoing itself, but the appearance of wrongdoing.   How on earth can it be less important for a Supreme Court justice to avoid the appearance of wrongdoing on matters of enormous consequence for the entire country than for a GS-4 supply clerk buying sheet music for the US Army Band?

 

Then came the court’s ruling that charges of obstruction of an official proceeding cannot be brought unless somebody tampers with a document.  They made this decision in a case where a mob stormed the US Capitol with the clear intent and actual result of stopping the official certification of a presidential election—and in the process, trashing the building, gravely injuring law enforcement personnel, forcing members of Congress into hiding, and parading around a gallows from which they threatened to lynch the vice president.  This was all just hunky-dory, said the court, since a particular piece of paper could not be shown to have been touched inappropriately.   

 

Such a bizarre absence of balance in the thinking of an ordinary citizen like you or me could land us in involuntary commitment to a mental hospital for 72 hours of psychiatric observation.  How are we supposed to countenance it in the purportedly august and wise black-robed eminences whose job it is to decide matters of enormous import to a great and mighty nation?

 

More recently, the court ruled that there must be a presumption of broad immunity from criminal prosecution for any action a sitting president may take in an official capacity.  For justices who are characterized as conservative, this is an astonishing stance to adopt.  The general essence of conservativism, after all, is to ensure that things which have functioned serviceably for a long time should not be easily swept aside in the currents of fleeting or faddish trends.  In a more specifically American context, conservatism has traditionally meant continuing to respect the wisdom of the founding fathers, especially in the way they structured a form of government that has endured for a quarter of a millennium. 

 

There is nothing the framers of our Constitution were more firmly in agreement on than the necessity of a system of checks and balances among the branches of our government, to prevent any one entity from obtaining an unhealthy degree of power.

 

Today, whether or not we realize it, we’re already under the sway of a new form of social order:  a “celebritocracy,” in which people who appear regularly as glowing images on screens take the place of the old feudal aristocrats, and those of us who don’t are stuck in an inconsequential role analogous to that of serfs in the Middle Ages. (We just have a lot more consumer goods than the serfs.) 

 

A key feature of this new order is that vast numbers of citizens can no longer tell you who their congressman is.  People draw even more of a blank about congressional candidates.  For those with hopes of gaining or holding onto a seat in the US Capitol, the result is an intense craving for endorsements by people who do have name recognition to at least help get them known.

 

In political circles, nobody has more name recognition than our elected commander-in-chief.  This renders almost all congressmen pathetically desperate for a presidential pat on the head. 

 

It's therefore hard to imagine a more inauspicious time for the job of checking the power of the presidency to be left almost entirely to the legislative branch. 

 

By asserting a novel conception of broad presumptive immunity from legal prosecution—a concept that the founding fathers never saw fit to expressly articulate, and which would likely have made Thomas Jefferson and any number of his fellow founding fathers shudder—that’s exactly what the Supreme Court has just gone and done.  The court has, in effect, left controlling presidential wrongdoing up to the impeachment process, in which the president would be tried (in the unlikely event he is actually impeached in the first place) by a jury of his toadies.

 

With a meaningful system of checks and balances having thus been effectively demolished by the majority of justices on the Supreme Court, it’s hard to imagine a more radical overhaul of the power dynamics within our government.  These justices are not real conservatives, any more than the people who stormed the US Capitol on January 6^th were real patriots.  I don’t know what to call them—except dangerous.

 

This is especially so in light of their odd way of focusing on minutia, and blithely disregarding what’s most significant about a situation.  This peculiar mental quirk of theirs has befuddled their reasoning once again in the way they justified absenting their branch of government from its Constitutional duty to counterbalance the power of the presidency. 

 

The justices could not possibly have been unaware that their most recent ruling would delay Jack Smith’s federal cases until after the upcoming election—or that, if elected, Donald Trump will immediately order the Justice Department to drop these cases.  Yet what the majority of our justices were most concerned about was the possibility that an incoming president might direct spitefully vindictive charges to be brought against his predecessor for mere differences in how certain policies should be implemented--charges which would be brought before normal courts (which should be ideologically neutral and impartial). 

 

They don’t show signs of having given any consideration at all to the fact that the case they were ruling on involved a return to office of a former president who has already publicly attempted to remain in power, dictator-style, in defiance of the results of a fair election—the cornerstone of our democracy—and who has recently spoken extensively about retribution against his political rivals, publicly boasting of his intention to behave like a dictator on the first day he re-occupies the Oval Office. 

 

This kind of reasoning on the justices’ part is like worrying about what effects eating a just-discovered chocolate bar might have on your acne when you’ve been wandering around starving in the wilderness for weeks.

 

Either these justices have a clinically diagnosable inability to grasp proportionality in things—in which case, they should not be entrusted to make the kinds of important decisions that are the stock-in-trade of the Supreme Court—or they’re just inventing elaborate (and often patently specious) justifications for whatever they want to do. 

 

The latter is, of course, not a rare trait in our species.  When you look carefully, you’ll find a lot of people espousing beliefs that justify their actions, rather than adjusting their actions to match their stated beliefs.  But I think we have a right to expect something at least a little bit better from our Supreme Court justices.

 

Unfortunately, I don’t see a good way to return to our previous condition.  

Technically, there's a way to expand the number of justices on the court, to counterbalance the years of cynical Republican shenanigans in the confirmation process that's enabled them to stack today’s court with so-called “conservative” justices whose current two-to-one preponderance is in no way representative of the values and political beliefs of American citizens at large. With today's Democratic-controlled Senate, President Biden could simply open up the additional court seats, and all it would take to fill them with whatever candidates he might propose is a simple majpority of votes in the Senate.

 

But to people in the red states, this would look like just more divisive partisan politics.  The court still would not be fully respected.  And it needs to be.

A diminution of the stature of the Supreme Court is, in the end, just one more testament to the power of Donald Trump’s mud-wrestling style of politics.  If, for example, responsible and respected news media characterize accounts of highly questionable reliability as “fake news,” he just turns around and calls the mainstream “fake news,” too.  It’s a kind of grade-school trading of taunts that brings everybody down into the mud.  I’m personally amazed that so many people fail to see through this sort of thing, but it’s obviously working. 

 

And say what you will about The Donald, he’s extremely good in the mud. I’m not personally aware of anyone on the current political scene who comes anywhere near Trump’s level of skill in this sort of environment.   Suckering another politician to get into it with him gives him an enormous home field advantage—to the point where it’s pretty much a forgone conclusion that once entering the mud with Trump, his opponent is a goner.

 

The danger to the rest of us is even greater than the fly-in-a-spider’s web plight of opposing politicians.  When we accept the mud-wrestling approach to politics (and the broader world) as normal, we can soon find ourselves saying, “Hey, they’re all liars and thieves and con men, so what’s the difference?”  We then pat ourselves on the back for our purported “worldly wisdom,” belittle the expectation of anything better as “naïve,” and stop voting or otherwise resisting further degradations of our system.  This creates incredibly fertile ground for the rise of autocratic regimes (for example, Putin’s).

 

I’m not giving up on America just yet, though. 

 

There’s still a chance that certain Supreme Court justices might see how quickly and profoundly the act of eliminating effective checks on abuses of presidential power degrades our democratic system, and look for ways to rectify what they’ve done.  I don’t expect much from recent appointees like Brett Kavanaugh, but up to now, Chief Justice Roberts has struck me as a decent and reasonable guy.  Maybe he’ll have some sort of re-awakening, and pull another justice or two into his corrected orbit.  It’s been historically common, after all, for Supreme Court justices to stray from their original ideological roots when they start seriously considering issues that they previously gave only cursory attention to.

 

Also, who can really tell what sorts of other developments might shock people at all levels into re-examining what they’ve been up to lately?

 

So in spite of all that’s gone on recently at the highest levels of the Washington power structure, I’ve gone out and hung my flag again this Fourth of July anyway—not as a sign of acceptance of what we’ve recently sunk to, much less a celebration of it—but as a stubbornly defiant emblem of support for what we still can be…and should be.

 

 

---