Historians tend to look at today’s political landscape through the long lens of America’s past: our constitution, laws, economy, and social customs, among other factors.

This time last year, I wrote on the lost legitimacy of the Supreme Court which has come as a result of a fifty-year campaign to push America back to the era before the New Deal and undo the legacy of Franklin Roosevelt.

Justice Elena Kagan called out the majority for exercising “authority it does not have. It violates the Constitution.” Georgetown historian Thomas Zimmer agreed, writing,

“America can accept this Supreme Court as legitimate and its rulings as the final word—or it can have true democracy and a functioning state. But not both.“

Here we are again.

After Monday’s inexplicable and dangerous ruling in the presidential immunity case appropriately titled “Donald J. Trump v. United States,” my first thought was that the court had ensured its reputation as the worst in U.S. history, surpassing the long-time leader in that dubious category: the court led by Chief Justice Roger Taney.

My second thought was, “Wait, didn’t the Declaration of Independence include a list of all the crimes King George III had committed against the American colonies as the reason for breaking with England? What’s the difference between a president with total immunity and a king?

Historians weighed in again.

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Princeton history professor Kevin Kruse’s Campaign Trails newsletter arrived later on Monday to suggest that,

The current Supreme Court of the United States has just cemented its place in history as the most radical Supreme Court ever.

For a century and a half, that dishonor has gone to the antebellum court led by Chief Justice Roger Taney, whose pro-slavery perversions of the Constitution brought us such indefensible decisions as the infamous Dred Scott ruling.

The current court might not have issued a single ruling that rivals Dred Scott for sheer awfulness, but its broader record of capriciously overturning a much wider range of precedents and offering increasingly thin pretenses for its path of destruction puts the Roberts Court below the Taney Court in terms of its overall horrors.

Beginning with the Chief Justice on down, this is a six-member conservative majority that lied at their confirmation hearings, making . . .

“promises under oath to respect and preserve the precedents already established by earlier iterations of the Court.

And once they reached lifetime appointments on the highest court in the land, they simply forgot those promises and overturned precedent after precedent, including:

• the 49-year precedent of a woman’s right to an abortion,
• the 46-year precedent asserting “that race-conscious admissions in higher education were constitutional,”
• the 40-year precedent providing a key foundation for the modern administrative state,
• the discovery of “an individual right to virtually unlimited gun ownership where no historian and no prior Court had detected any such thing,” and
• the unfounded finding that corporations are now people, wiping away a century of campaign finance laws.

That all happened before Monday, where “in their most brazen decision yet they overturned a basic principle of American constitutional law from the founding—the idea that no one, not even a former president, is above the law.”

“And while the decisions coming out of this Court are bad enough, the fact is that they’re coming from a collection of judges who have responded to serious charges of ethical lapses and outright corruption levied against them with nothing but contempt and condescension.

Make no mistake about it—this is the most radical, destructive, arrogant Supreme Court in the entire history of the United States of America.

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We heard from other historians as well. David Blight, the Sterling Professor of History at Yale University, called Monday’s decision “an amendment to the Constitution.”

If you thought only Congress and the states had that power, this Supreme Court wants to dissuade you of that assumption.

And as Boston College historian Heather Cox Richardson noted in her Letters from an American newsletter, because the Court also kept to itself the power “to determine which actions can be prosecuted and which cannot” making itself the final arbiter of what is “official” and what is not, “any action a president takes is subject to review by the Supreme Court.” I have a bridge to sell you if you believe this particular court would give a Democrat the same leeway it would give Trump.

The power grab is audacious and breathtaking in the damage it does to our foundations as a country.

“There is no historical or legal precedent for this decision (Richardson writes.) The Declaration of Independence was a litany of complaints against King George III designed to explain why the colonists were declaring themselves free of kings; the Constitution did not provide immunity for the president, although it did for members of Congress in certain conditions, and it provided for the removal of the president for ‘high crimes and misdemeanors’—what would those be if a president is immune from prosecution for his official acts? The framers worried about politicians’ overreach and carefully provided for oversight of leaders; the Supreme Court today smashed through that key guardrail.” 

The six justices—working under a cloud of lies and ethical corruption—have made up a new doctrine that didn’t exist last week. Chief Justice John Roberts said at his 2005 confirmation hearing that “I believe that no one is above the law under our system and that includes the president.” Those were sentiments echoed by Justices Alito in 2006 and Kavanaugh in 2018. One of the architects of this awful court said the same thing.

“In February 2021, explaining away his vote to acquit Trump for inciting an insurrection, Senate minority leader Mitch McConnell (R-KY) . . . said: ‘Trump is still liable for everything he did while he was in office…. We have a criminal justice system in this country.’”

Justice Sonia Sotomayor details the implications in her blistering dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson:

“When [the President of the United States] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. 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.” 

“In every use of official power,” she wrote, “the President is now a king above the law.”

“With fear for our democracy,” she wrote, “I dissent.”

Krause provided the historical context by noting that “John Roberts (has) spent his time as Chief Justice using a baseball bat to bludgeon the Constitution and the institutions of our government he promised to protect.”

Make no mistake: the Supreme Court will be the most important issue of this election, and long beyond that.”

More to come . . .

DJB

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The Weekly Reader links to the works of other writers I’ve admired.

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Image: Supreme Court building from Pixabay.