Our Institutions Exist to Oppose Trump, Right?

By Rich Lowry

Sunday, April 28, 2024

 

The Supreme Court has let us down. The highest court in the land is now a tawdry instrument of Trumpism.

 

Such is the progressive line in the wake of last week’s oral arguments over Trump’s immunity claim.

 

In a headline, Slate deemed the arguments “The Last Thing This Supreme Court Could Do to Shock Us.” Salon huffed, “SCOTUS majority abandons conservative principles to mount bizarre defense of Trump’s immunity claim.” One headline at the Atlantic warned of “The Trumpification of the Supreme Court,” while another maintained, “Trump Is Getting What He Wants.”

 

The first thing to say about this is that, as a technical matter, all indications are that Trump isn’t going to get what he wants; the Court showed little indication that it is going to accept his sweeping claim of immunity.

 

But the Court took the underlying issues seriously and might — perish the thought — hand down a nuanced ruling and thus delay the proceedings in the J6 case.

 

It’s entirely fair to disagree with the drift of the questioning from most of the conservative justices. Trump’s enemies will never leave it at that, though. At the first whiff that the case might not go the way they want, their reaction is to question the legitimacy of the Court as such.

 

Yet again, they are demonstrating that they are committed to our institutions exactly to the extent they serve their interests, and no further.

 

“Pretending that these matters concern the powers of the presidency more broadly,” Adam  Serwer writes at the Atlantic, “is merely the path the justices sympathetic to Trump have chosen to take in order to rationalize protecting the man they would prefer to be the next president.”

 

This accusation is preposterous in several different respects. One, the Court could have done Trump’s bidding in other consequential cases, most importantly the Texas challenge to the 2020 election results, and didn’t. Two, a finding of some form of criminal immunity wouldn’t come out of nowhere but would constitute an extension of the Court’s 1982 ruling in Nixon v. Fitzgerald that the president enjoys immunity from civil liability for his official acts. Finally, the issues involved are genuinely complex — this post by Jack Goldsmith a couple of days before the oral arguments was a detailed rundown of the myriad difficulties.

 

All of this is ignored or dismissed by Serwer, of course — why acknowledge complications if you can pound the table instead?

 

He concludes of the conservative justices, “One way or another, they will have to choose between Trumpism and democracy. They’ve given the public little reason to believe that they will choose any differently than the majority of their colleagues in the Republican Party.”

 

This, also, is insipid. It’s quite possible to believe that a president has some form of immunity for official acts without agreeing with anything else Trump says or does. And democracy is not hanging in the balance depending on where the Court draws the line on the immunity question. If the only meaningful check on a president’s conduct in office is tenuous prosecutions pursued by his successor’s administration years after he leaves office, our system has already effectively collapsed.

 

Writing in a similar vein, the tag team for the ages of Dahlia Lithwick and Mark Joseph Stern at Slate remark that “many court watchers held out hope that Thursday morning’s oral arguments were to be the moment for the nine justices of the Supreme Court to finally indicate their readiness to take on Trump, Trumpism, illiberalism, and slouching fascism.”

 

As if the Court had crafted the question before it: “Whether, and if so to what extent, this Court should bow down before fascism, slouching or otherwise.”

 

Of course, rather than striking a blow against slouching — or, for that matter, upright — fascism, the Court sounded as if it was grappling with complex questions that it hadn’t confronted before and would affect the institution of the presidency going forward.

 

The progressives outraged by the Court aren’t just driven by partisanship, but a shortsighted partisanship. They are apparently oblivious to the fact that President Biden could be out of office in less than a year and in the sights of a Trump Justice Department. Wouldn’t it be good to have a clear road map for these kinds of cases before then? Or do the progressives trust implicitly in the judgment of Trump’s future attorney general on such matters?

 

Also writing in the Atlantic, Ron Brownstein focuses on another facet of a potential Trump second term. “Even a decision that allows Trump to delay any further criminal trials until after the election,” he writes, “could look relatively small next to the consequences of a ruling that causes him to conclude that, if he wins again, the Supreme Court would lack the will to restrain him.”

 

In less florid language than Lithwick and Stern, this also assumes that the issue in the case is standing up to Trump rather than attempting to think through the correct standard for everyone. In other words, by this way of thinking, the Court isn’t political enough — it should be tailoring its work to how it affects one presidential candidate.

 

Also, there’s no evidence that the standard the conservative justices have ever adopted in any case involving Trump is how it affects his interests or whether it will please or anger him. So this isn’t a matter of the “will to restrain him.”

 

At least conceding the possibility of good intentions on the part of the Court, Jamelle Bouie writes at the New York Times, “Whether motivated by sincere belief or partisanship or a myopic desire to weigh in on a case involving the former president, the Supreme Court has directly intervened in the 2024 presidential election in a way that deprives the electorate of critical information or gives it less time to grapple with what might happen in a federal courtroom.”

 

What is this direct intervention in the 2024 election? It’s not arbitrarily deciding how the political conventions will be conducted, or what can appear in advertisements, or where the candidates can travel; it is issuing an opinion in a legal case with major constitutional implications.

 

It’s not the Court’s fault that this case is in the middle of a presidential election. Jack Smith put it there, and the Democrats want it there to damage Trump politically. There’s no doubt that it’d be better to have the immunity case — or any politically sensitive case before the Supreme Court — decided in circumstances where no one knows the immediate political consequences. But that’s not possible here.

 

If the J6 trial is delayed, the election will presumably happen with Trump only having faced a New York criminal prosecution and not a federal one. Given that neither a former president nor a current presidential candidate has ever stood trial before, that would seem plenty. As for, as Bouie put it, the electorate’s being denied “critical information” if the trial doesn’t take place, what information would this be? We all know what happened on January 6 and in its run-up and aftermath. Voters are presumably already taking all this into account.

 

What they won’t find out is whether Trump is found guilty by a D.C. jury of charges relying on Jack Smith’s adventurous legal interpretations, which may be vulnerable on appeal. Is this really critical to deciding whether Trump will be president again? And if Trump is tried and acquitted (or convicted and wins on appeal), where will he go to get back the time, resources, and energy spent sitting in a D.C. courthouse, in addition to a New York courthouse, in the midst of a presidential campaign?

 

Of course, there’s no way to get them back. That, and the potential of a conviction harming Trump’s campaign, are part of the reason that progressives are desperate for the J6 trial to take place prior to the election. And they believe that it’s the obligation of the Court to go along. Anything less proves its worthlessness and corruption.