It’s wrong to view the Supreme Court’s ruling in the aptly titled Trump v. United States, its Constitution-torching invitation to authoritarian rule, as a decision without precedent. It’s just that Supreme Court precedents don’t necessarily roll quite like they used to.
The ruling, which establishes that a president can’t be prosecuted for crimes committed under the expansive cloak of official conduct, has received a load of criticism, including the analysis of conservative legal scholar William Baude that the court, in bestowing immunity on Donald Trump, engaged in “outcome-oriented policymaking.”
That’s a very polite way to describe Chief Justice John Roberts’ all-too-evident struggle to dress the court’s naked political machinations in some approximation of American constitutional law, politics, tradition, history, culture, something. A less charitable view is that the court is “Donald Trump with a law degree”– reckless, dishonest and a prelude to sweeping corruption and probable violence.
Yet Roberts’ wordy, defensive 6-3 opinion wasn’t just a victory for the most corrupt American president in history. After all, it extends beyond Trump to all presidents.
Except it really doesn’t — and not just because the Supreme Court left itself in charge of all the loose ends, enabling five or six Republican justices to withhold the same immunity from a Democrat that they shower on Trump.
Mileage will vary
The judges have an easy way out of that trap. What the judges are counting on is not their ability to impose different rules on different presidents, enabling Trump to jail his political opponents on bogus grounds, for example, while forcing Joe Biden to hew to the old constitutional ways. They needn’t make such a bitter joke of themselves. Instead, they will simply let the two opposing political coalitions impose wildly different constraints on their leaders.
In short, there is no way the Democratic Party will allow a Democratic president to set up an emoluments hotel around the corner from the White House, or overcharge the Secret Service for stays at his property, or sic armed troops on Americans asserting their rights to free speech and assembly, or commit any of the array of new criminal acts that the Supreme Court has just tacitly endorsed.
The Democratic Party, which views itself as the last speed bump before Republicans initiate an authoritarian death spiral in the US, will not tolerate a chief executive who emulates the political figure that Democrats most despise — Trump.
The Republican Party, meanwhile, has already capitulated to Trumpism. The party elite will readily enable more Trump crimes. North Carolina Lieutenant Governor and GOP gubernatorial candidate Mark Robinson last week announced, “Some folks need killing,” calling political murder a matter of “necessity.” Republican Senator J.D. Vance of Ohio has said he’s fine with Trump using the Department of Justice to attack his opponents.
The party base, nurtured on Fox News lies and Trump’s constant calls for vengeance, won’t merely tolerate crimes, they will cheer them, determined that this time, the former president will truly succeed in “hurting the people he needs to be.” Trump’s Project 2025 promises to usher in a disciplined authoritarian rule instead of the chaotic assaults of Trump’s first term.
Thus a Supreme Court ruling that ostensibly treats each party’s president the same will produce wildly disparate effects. That, of course, is the point.
But it’s not a new point.
Last outpost
Consider the Court’s 2022 ruling in another howler, New York State Rifle & Pistol Association v. Bruen. Written by Justice Clarence Thomas, the Bruen ruling is an embarrassing mess that — two years after it hit with a hard thud — the court has already been forced to clean up. Thomas’s opinion quickly led to a lower-court ruling that domestic abusers can possess guns, a wholly logical conclusion that proved politically untenable for the other MAGA justices. Yet the essence of Bruen remains intact.
Like Trump v. United States, Bruen is eminently even-handed. You see, under Bruen, liberals from the Upper West Side of Manhattan are permitted to walk around Amarillo, Texas, armed to the teeth. Likewise, gun fanatics from Texas are welcome to do the same on the Upper West Side.
Bruen is predicated on the reality that only Team MAGA is likely to use the ruling’s newly invented right to carry a gun in places where carrying a firearm is vehemently opposed by the local populace. Guns, of course, are occasionally used to protect, and far more often to intimidate or harm. Rulings that spread guns everywhere, over the democratic objections of citizens, conform very well to the aims of people like Robinson and Trump and other vectors of violence.
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The moral collapse of the Republican Party proceeded by degrees. Newt Gingrich led the party down in the 1990s. That decline was followed by birtherism and other hysterias, along with the transformation of the House of Representatives into a content farm for Fox News. The GOP Senate fell when it refused to convict Trump for his attempted overthrow of the republic, citing criminal courts as the proper venue to punish the former president’s conduct.
The Supreme Court, insulated by lifetime tenure from MAGA pressure, was arguably the last Republican outpost to capitulate fully to the new authoritarianism, and to endorse its attendant corruption and promise of violence.
We will miss the old days.
Francis Wilkinson is a Bloomberg Opinion columnist. ©2024 Bloomberg. Distributed by Tribune Content Agency.