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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 6th
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
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.