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The Supreme Court Will Be the Final Bulwark
Think twice before “delegitimizing” it
Enraged by a Supreme Court ruling that upheld Native American rights in 1832, President Andrew Jackson reportedly declared: “[Chief Justice John] Marshall has made his decision, now let him enforce it.”
Actually, the quote is likely bogus. But it reflected Jackson’s actual response, which was to redouble his enthusiastic campaign of genocide.
The apocryphal quote also revealed a critical truth about the nation’s highest court: As Justice Felix Frankfurter noted in 1962, the Supreme Court’s authority “possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction.”
In other words, as Vox’s Zack Beauchamp observed last year, the Supreme Court “only has power inasmuch as people believe it does. Constitutionally speaking, the Court does not have the hard authority of the presidency or Congress. . . . The Court’s power depends on its legitimacy — on a widespread belief, among both citizens and politicians, that following its orders is the right and necessary thing to do.”
Which brings us to our looming and inevitable constitutional crisis.
Now that Trump faces a cascade of new indictments, the campaign to delegitimize the entire justice system will be supercharged — not just in unhinged ALL CAPS rants, but in the increasing willingness of the GOP to make obstruction of justice a central feature of its agenda.
In the Trump years, as Eric Nelson noted this week, “The right lost faith in every ‘expert’ run institution in the Obama years: (all) big business, medicine, colleges, (all) journalism, nonprofits, government institutions, churches, everything. They even lost faith in the people who told them to trust no one.”
Indeed, the last seven years have seen Donald Trump’s long march through America’s sense of decency, truth, and sanity. But more substantively, he has systematically assaulted the norms and the institutions that might hold him accountable or in check — including (or perhaps especially) the justice system itself. He has not only attacked the Department of Justice; he and his supporters have attacked judges, prosecutors, and grand juries; called for defunding the FBI, stripping executive agencies of their independence, and dismantling the nation’s intelligence apparatus.
Here is what we also know: Trump and his supporters will attempt to use next year’s election to nullify the cases against him (at least the federal ones).
He will also continue to threaten violence. In an interview yesterday, an Iowa radio host asked him how his supporters would react if Jack Smith sent him to jail:
DONALD TRUMP: I think it’s a very dangerous thing to even talk about, because we do have a tremendously passionate group of voters, much more passion than they had in 2020 and much more passion than they had in 2016.
I think it would be very dangerous.
We also know this: Trump will never admit that he has lost the election, no matter the outcome. It’s worth remembering the role of the federal courts in 2020. Trump lost more than 60 legal challenges to the vote, and the Supreme Court drove a dagger through the heart of the coup by refusing to take up TrumpWorld’s bizarre lawsuits. (More recently, the Court shot down the MAGA “independent state legislature” theory that could have resulted in overturning popular votes.)
If Trump somehow returns to the Oval Office, he has promised to turn the presidency into a weapon of retribution. As the NYT reported this week, he has a very clear agenda for his second term: “planning a sweeping expansion of presidential power over the machinery of government if voters return him to the White House in 2025, reshaping the structure of the executive branch to concentrate far greater authority directly in his hands.”
It is unforgivably naïve to expect a GOP Congress to act as a check on Trump 2.0. And there is scant evidence that Republicans would break with him if he tried to steal another election.
The only thing that may stop him is the U.S. Supreme Court, which has been going through some things recently.
Like it or not, in our constitutional system, the Court may be the last bulwark of liberal constitutional democracy.
Which brings us to an uncomfortable truth.
After Watergate, the Court enjoyed a rise in public esteem, but the current court is suffering from a deficit of trust, including widespread attacks on its “legitimacy,” from progressives.
Critics need to be careful what they wish for.
To be sure, some of the concerns — especially involving judicial ethics — are valid and require urgent reform. But the left’s assault on the court goes much deeper, fueled by complaints about a “stolen” justice, the Kavanaugh and Barrett confirmations, and recent rulings on hot-button social and political issues, including abortion. There is plenty of room for outrage and disagreement here.
But questioning the legitimacy of the court is something else altogether; and if the jihad to delegitimize the Court succeeds, it will give Trump an invaluable gift.
As a recent Harvard Law Review article notes, “we have an intuitive sense that illegitimate means something more than erroneous or incorrect. The term signifies something absolutely without foundation and perhaps ultra vires. So when a government institution or organization lacks legitimacy, it may no longer be worthy of respect or obedience.”
Given this intuition, it is striking how many commentators — including prominent constitutional scholars, a former Attorney General, and current members of Congress — have recently questioned the legitimacy of the United States Supreme Court.1
Indeed, some critics suggest that the situation is so bad as to warrant extreme measures: it may be time to rethink life tenure,2 take away broad swaths of federal jurisdiction,3 impeach Justices,4 disobey Supreme Court decisions,5 or — most commonly — “pack” the Court with additional members.6
For those who study the federal judiciary, this onslaught is jarring.
Indeed, the attack on the Court’s “legitimacy” has become almost reflexive in some circles.
From the Guardian: “It’s time to say it: the US supreme court has become an illegitimate institution.” Jill Filipovic declared:
As of 24 June 2022, the US supreme court should officially be understood as an illegitimate institution – a tool of minority rule over the majority, and as part of a far-right ideological and authoritarian takeover that must be snuffed out if we want American democracy to survive.
From the Hill: “Al Franken blasts Supreme Court: It’s ‘illegitimate’.”
“The court is a very divisive entity now, institution right now. And the Supreme Court, to me, is illegitimate,” Franken said on “The Al Franken Podcast”…
Fifty-eight percent of respondents said the court is corrupted by big-money influences, compared to 30 percent who disagreed with the statement.
Sixty-two percent of likely voters in the poll said the court is imposing its political agenda on the American people, including 48 percent of Republicans.
The institute said it is sending a new memo to lawmakers urging them to say: “This Court is corrupt and faces a legitimacy crisis.”
The NYT’s Jamelle Bouie: “Clarence Thomas Can’t Undermine the Legitimacy of the Supreme Court Fast Enough.”
Democrats are not out to undermine the Supreme Court.
But they should be.
The problem of the Supreme Court isn’t that its members are mired in ethics scandals (although they are). It isn’t that it’s been captured by a network of conservative apparatchiks and right-wing billionaires (although it has).
No, the problem of the Supreme Court is that it is a powerful and unaccountable branch of government whose traditional role has been to protect the rights of property and the prerogatives of the privileged above all other concerns.
An article titled “Supreme Illegitimacy,” in which Eric W. Orts, the Guardsmark Professor at the Wharton School of the University of Pennsylvania, argues that “Owing to its decisions at the end of its last term, the Supreme Court has lost legitimacy along all three dimensions”—the dimensions being “legal legitimacy, empirical political legitimacy, and substantive political legitimacy.”
We could go on. And on. But you get the point.
But ideas have consequences. And this time, they could be catastrophic. Beauchamp warned:
While it may be tempting to cheer the collapse of the Court’s legitimacy given its track record, that prospect should give us some pause. In the American system, for better or for worse, the Court is supposed to serve as the final arbiter of political disagreements. If it lacks the legitimacy to play that role, it sets the stage for a constitutional crisis — especially if former President Donald Trump runs again in 2024….
It is likely that there will be significant litigation surrounding the 2024 contest. The Supreme Court has final say on voting procedures, and the nature of its rulings will affect the way the public views the legitimacy of the election itself.
In the nightmare scenario, the Supreme Court could be called on to adjudicate a Republican effort to overturn the results of a Biden victory at the state level.
So, what’s the danger here?
On the most obvious level, Trump and his supporters would (once again) refuse to accept the legitimacy of the election results because they refuse to accept the legitimacy even of a conservative Supreme Court.
Worse: Trump and his supporters would simply ignore the rulings.
This is not far-fetched. During his campaign last year J.D. Vance openly suggested ignoring Court rulings that might block Trump 2.0’s agenda:
I think that what Trump should do, if I was giving him one piece of advice: Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts stop you, stand before the country, and say “The chief justice has made his ruling. Now let him enforce it.”
There are already warning signs: Alabama is trying to dodge the Supreme Court's order to stop packing Black voters into one district.
Alabama is ignoring a Supreme Court ruling that demanded the state redraw its district maps to include a second Black-majority district in the state, The Hill reported.
In a 5-4 June decision, the Supreme Court sided with a group of voters that claimed the state's current district map violates the Voting Rights Act because it includes just one Black-majority district out of seven — in a state that has a population of Black voters of 27%.
By now we have nearly lost our capacity to be shocked by Trump’s violation of norms.
But how shocking would it really be if a restored Trump took his cue from his hero, Andrew Jackson, and simply decided to ignore the Supreme Court when it blocked his unconstitutional predations?
And if he did, where would we go to get our democracy back?
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Be Afraid. Be Very Afraid.
On Wednesday’s podcast, Miles Taylor imagines what a second Trump term might be like. It’s way worse than you think.
Plans are already being drawn up for Trump’s revenge plans in a second term, including special counsels to investigate Trump’s enemies, a “Sue the Blue” DOJ targeting Democrats, and judicial gerrymandering.
1. The GOP Is Not Taking the News of Trump’s Impending Indictment Well
Bill Lueders writes that their responses, from rage to conspiracy theories, are about as unhinged as one would expect.
2. Our Last Chances to Hold Trump Accountable
Kim Wehle writes that while Jack Smith’s target letter signals that Trump is still accountable under the law, the former president plans to use another term to hoist himself above it.
3. Voters Aren’t Feeling the Economic Recovery Yet
Meanwhile, on Capitol Hill.