Opinion: It’s time to save our republic from this Supreme Court

photo by: Creators Syndicate

Keith Raffel

The Supreme Court’s decision in the presidential immunity case Trump v. United States issued on July 1 has made clear what’s at stake in the November elections. It’s whether the American republic survives.

Sanford Levinson of the University of Texas Law School has written: “The Constitution is simply whatever the Supreme Court says it is.” A majority of the current justices show the truth of the professor’s words. To reach their desired result, sometimes they ignore words that are in the text of the Constitution, and sometimes they rely on their imagination to insert words that are not.

In Dobbs v. Jackson Women’s Health Organization, the Court overturned Roe v. Wade, by a 6-3 vote, and abolished the constitutional right to an abortion. Why? Because a right to abortion has “no firm grounding in constitutional text, history, or precedent.”

It didn’t matter to the same six justices in the Trump case that they were granting presidents sweeping immunity without the so-called “firm grounding” they’d required in Dobbs. Writing for the majority, Chief Justice John Roberts concludes “the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” In the “outer perimeters” of their authority, presidents receive a “presumption” of immunity.

The majority apparently reached the conclusion they desired and only then found the reasoning to back it up. Inconsistency did not matter. In her scathing dissent, Justice Sonia Sotomayor writes, “The majority … invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.”

She goes on to point out the Founders were well acquainted with the concept of immunity. The Constitution grants it to senators and representatives “for any Speech or Debate in either House.” They did not grant any immunity at all to the president. Sotomayor notes that in “The Federalist Papers,” Alexander Hamilton makes “an important distinction between ‘the king of Great Britain,’ who was ‘sacred and inviolable,’ and the ‘President of the United States,’ who ‘would be amenable to personal punishment and disgrace.'”

So, Sotomayor asks what happens under the majority’s holding if a president “orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” Richard Nixon would have been immune for everything he did during Watergate.

Back when in office, Trump said, “I have the right to do whatever I want as president.” As a current candidate, he promises that when once again in office, he will order Justice Department investigations of “every Marxist prosecutor in America” and take on the role of “a dictator on Day One.” Under the Supreme Court’s ruling, he will not have to answer for such acts in the courtroom.

Justice Sotomayor finds “a twisted irony in saying, as the majority does, that the person charged to ‘take Care that the Laws be faithfully executed’ can break them with impunity.” Congressional Republicans see no need to fret about that. “Today’s ruling by the Court is a victory for former President Trump and all future presidents,” says Speaker Mike Johnson (R-La.).

Especially disconcerting is the illegal participation of Justices Samuel Alito and Clarence Thomas in Trump v. United States. Thomas was in the majority on the Trump case. His wife, Ginni Thomas, texted Trump’s chief of staff seven days after the 2020 election: “Help This Great President stand firm, Mark!!! … The majority knows Biden and the Left is attempting the greatest Heist of our History.” After the storming of the Capitol on Jan. 6, 2021, the American flag flew upside-down at the home of Alito, a signal usually understood to support Trump in his claim the 2020 election was stolen.

Rep. Jamie Raskin, a constitutional law professor, has pointed to Section 28 of the U.S. Code, which holds: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Who can believe that Alito and Thomas’ impartiality cannot be questioned? In their own minds, then, the two justices get some immunity from the laws of the land, too.

After the drafting of the Constitution was completed in 1787, Benjamin Franklin was asked, “Well Doctor, what have we got, a republic or a monarchy?” He replied, “A republic, if you can keep it.” In their ruling in Trump v. United States 237 years later, six justices of the Supreme Court decided they did not wish to keep it. “In every use of official power, the President is now a king above the law,” Sotomayor noted in her dissent.

What to do? The only practicable way to overturn the Supreme Court’s decision in the next decade is to appoint additional justices who will provide a majority to uphold fundamental constitutional values. The number of nine justices is not engraved in stone. In fact, it isn’t even written in the Constitution. A law enacted in 1869 increased the number from seven to nine. Let’s increase it to 15. To pass a law to do that and appoint six more justices, Democrats will have to win control of both houses of Congress and the White House in the November election.

Last year, President Joe Biden said, “If we start the process of trying to expand the court, we are going to politicize it maybe forever, in a way that is not healthy.” Even if that were the right position then, it is not now, when the republic is on life support.

All Democratic candidates, whether running for the White House or Congress, must run against a court that has run amok. And it’s critical that we voters defend our republic at the ballot box this November.

— Keith Raffel, a resident scholar at Harvard University, is syndicated columnist with Creators.

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