American liberals are howling in indignation over the Supreme Court’s decision to extend immunity to the former president Donald Trump for his alleged attempts to impede the certification of Joe Biden as the winner of the 2020 presidential election. They shouldn’t be. Rather, they should consider the decision good news in the wake of a debate performance that convinced most of America, and most of the world, that Biden is mentally unfit to serve as president. Now, in the event of a Trump victory, Biden will perhaps not be victimised by the same fanatical attempts to put him behind bars, on account of actions he took as president, that Trump has been subject to almost from the minute he entered the White House in 2016.
Imagine that the Supreme Court had sanctioned the prosecution of Trump for his actions on 6 January 2021. The country could well have been facing, in the weeks preceding the November election, one presidential candidate shuttling between criminal trials in Washington and Georgia and the other candidate fleeing the media as his handlers tried to conceal his accelerating mental decline from the public. America would have been in something like dual receiverships, delivered into the hands of judges for the Republican candidate, and doctors for the Democratic one.
It is telling that John Roberts, the justice writing for the conservative majority behind the decision, carefully described the ruling in legal terms, referring to possible consequences for future presidents. The liberal minority expressed its dissent with an apocalypticism that was nothing like the sobriety expected from a judge, let alone a Supreme Court justice. It was more like the anti-Trump hysteria that became an entertaining and lucrative staple of Trump’s reign. “The president is now a king above the law,” wrote Sonia Sotomayor. Justice Ketanji Brown Jackson said that the decision was “a five-alarm fire that threatens to consume democratic self-governance”.
Roberts was more sanguine. He explained that the decision conferred immunity on official actions – Trump merely had conversations, as president, about using arcane laws to challenge the election results. But he and the other justices in the majority left the door open to the lower courts prosecuting Trump for his unofficial acts. Contrary to the court’s liberals, presidents still cannot put their own interest above that of the republic. They cannot, as Justice Sotomayor hypothesised, use Seal Team Six to assassinate a political rival. Whether they can, in America’s new Beckettian psycho-political-judicial landscape, talk about using Seal Team Six to assassinate a political rival remains to be seen.
So does the question of what constitutes a president’s unofficial as opposed to official acts. As Justice Amy Coney Barrett observed in her concurrence with the majority, Trump pressing officials to substitute false electors in states that Biden had won was hardly the official act of a president. It was the unofficial act of a man desperately clinging to power. But the justices might well have chosen to elide “official” and “unofficial” in this case simply to spare the country the divisive agony of continuing to drag a presumptive presidential nominee through the courts. And they might well have considered this unofficial act of Trump pressing to install fake electors so toothless and pathetically ineffectual that it was worth using some legal prestidigitation to make it go away. After all, Trump lost every single lawsuit he initiated to contest the election – well over 50 of them. So much for overweening executive power.
In fact, even if the fake electors had been installed, and Mike Pence refused to certify the election, there were multiple scenarios to be deployed in order to foil the plan, which was more Lavender Hill Mob than Beer Hall Putsch (after which Hitler was tried, jailed and became more popular than ever). Yesterday’s Supreme Court decision had the feel of judicial parents telling their political children to solve their problems in the playroom of politics, not the super-technical precincts of the courts. It was not so much a decision as a disgruntled group recusal disguised as a decision.
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The problem is that the rising dysfunction of politics is bringing other American institutions down with it. It is unnerving that a seeming sociopath like Trump should be coming closer and closer to the presidency once more. It is equally unnerving that liberals are undermining democracy in their ostensible defence of it. In every news story about the Supreme Court’s decision, the court is described as “partisan” or we are told that the “conservative majority”, three of whom were appointed by Trump, was behind it in the manner of a conspiracy. Biden himself is now once again casting doubt on the Supreme Court’s legitimacy, as some of his surrogates are actually calling for the conservative justices to be impeached. It is no doubt a welcome distraction from the issue of Biden’s cognitive decay.
Yet every president tries to fill the court with justices that reflect the president’s and the president’s party’s values. Franklin Delano Roosevelt tried shamelessly, and unsuccessfully, to pack the court with liberals who would protect his New Deal. In the event, he appointed eight justices during his presidency, all liberals. Those of us who are beneficiaries of the New Deal in one way or another are grateful for FDR’s partisan approach.
At the same time, liberals are changing the nature of democratic politics by turning political matters, again and again, over to the courts, a category mistake on the order of police departments using weapons of war to enforce control. I have never seen the liberal establishment, in their eyes the party of humane reform, so smitten with the idea of jail. It is turning moral peccadillos into crimes of the state. So what if, as Biden gasped during the debate, Trump has “the morals of an alley cat”? Unlike who? Clinton? Kennedy? Trump standing trial in Washington and Georgia during the final days of his campaign would have confirmed for his supporters, once and for all, that anyone who tries to cut the slightest corner – never mind the seriousness of Trump’s corner cutting – will be struck down by a priggish liberal mandarin who was born with their corners already neatly circumvented.
With two presidential candidates who are outrageously unfit to be in the White House, at a time of geopolitical upheaval and an inflamed civil society, America is balanced on the edge of chaos. Making certain that Trump’s fate is decided by the voters, rather than legal cases that have not been approved by voters, and can only be seen as truly partisan – the charges in New York that Trump was convicted of were unconvincing – the Supreme Court has done much to slow down the country’s slide into strife. Let the ballot box decide the fate of Donald Trump. If he loses, and tries to overturn the election, or to disruptively question its validity, then unleash the dogs of law and order against him in all their fury, arcane interpretations of the constitution and all.
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