The court’s power grab has shocked even those who recognized the enormity of the court’s recklessness in overruling Roe v. Wade and Chevron v. Natural Resources Defense Council and in eviscerating voting rights laws. It has shredded any pretense that the court is guided by originalism. It clears the way for an unscrupulous president to commit outrageous crimes with impunity.
Many can sympathize with Justice Ketanji Brown Jackson’s dissent:
I simply cannot abide the majority’s senseless discarding of a model of accountability for criminal acts that treats every citizen of this country as being equally subject to the law — as the Rule of Law requires. That core principle has long prevented our Nation from devolving into despotism. Yet the Court now opts to let down the guardrails of the law for one extremely powerful category of citizen: any future President who has the will to flout Congress’s established boundaries.
The urgency of defeating felon and former president Donald Trump, author of the insurrection for which he may never be punished, is hard to quantify.
All of this comes after President Biden’s debate performance, which sent shock waves of panic through the Democratic Party. Those who rushed to call for him to step down without poll evidence to substantiate their predictions of disaster and without affording him the chance to course correct acted irresponsibly and arguably only made the dilemma worse. Pundits’ arrogant effort to boot out a party’s democratically selected nominee with no care for the chaos it might unleash or the relative merits of dumping the advantage of incumbency didn’t help. Such overreach coupled with the media’s ongoing effort to normalize Trump (despite his obvious mental liabilities, personality defects and tyrannical plans) naturally pushed Biden to dig in his heels.
Where does that leave us? Biden can still show he is capable of doing the job, seize the initiative, make the court’s constitutional homicide the focus of his campaign and unleash his most able prosecutor, Vice President Harris, to help make the case against Trump and his court. Invigorated by the threat posed by the court’s ruling, he can win the election and begin to repair our democracy (subject to congressional elections and the willingness of Democrats to reform the court, thereby erasing the past few years of judicial tyranny).
Biden needs to deliver vibrant appearances, conduct town halls and give tough interviews on this subject, removing doubt as to his fitness and electability. His appearance on Monday was a solid start. He looked and sounded strong, but he needs to be freed from the teleprompter and to speak easily at length about critical topics. His planned interview on Friday with ABC’s George Stephanopoulos, if it goes well, will help soothe anxious Democrats. However, waiting so long to provide that reassurance and appearing so little during the week only fueled Democrats’ anxiety. Where was he?
If Biden cannot appear in a free-flowing setting to erase doubts, he is obligated to make way for Harris to accept the nomination. It would be unconscionable and foolhardy for Democratic elites to pluck someone else out of a field of unvetted candidates and skip over the first African American female vice president. If earnest Democrats feel that Biden’s retirement is the best option, it behooves them to rally around Harris, making the transition as smooth as possible.
In short, no one is going to force the president out, nor should they after a single rotten performance. That said, time is limited. As he did on Monday night, Biden must show forthwith — through the strength of his rhetoric and character — that he can aggressively mount a successful effort to keep Trump from returning to the Oval Office. Only then can the worst nightmare be avoided and the task of reforming the court begin.
Distinguished person of the week
Justice Sonia Sotomayor wrote a dissent for the ages. “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the presidency,” she wrote with Jackson and Justice Elena Kagan concurring. “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” She added, “Because our Constitution does not shield a former president from answering for criminal and treasonous acts, I dissent.”
She pulls no punches and, therefore, sends out a clear warning that our republic is imperiled. As she points out, “Under scrutiny, its arguments crumble. To start, the majority’s broad ‘official acts’ immunity is inconsistent with text, history, and established understandings of the President’s role.” One is hard-pressed to disagree with her accusation that the court’s decision is “indefensible.” “The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is ‘at least … presumptive,’ and quite possibly ‘absolute.’”
She explains what this means: “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.” That is what the majority invites.
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
If you are looking for some historical inspiration or a refresher on our Constitution, here are a few of my favorite sites (in addition to the many monuments, museums and institutions in D.C.):
Gettysburg: It’s hard to express the awe one experiences at Little Round Top or the Peach Orchard or Cemetery Ridge. No place in the country so effectively transports you back in time, evokes such reverence for those who gave, in Abraham Lincoln’s words, “the last full measure of devotion” and reminds you of the awesome obligation to devote ourselves “to the unfinished work which they who fought here have thus far so nobly advanced.” (If you love Civil War history, Antietam and Petersburg are two other must-see sites.)
National Constitution Center: It’s more important than ever to refresh your memory and deepen your understanding not only of the text of the Constitution but of the legal battles and collective action to secure our freedom.
Ellis Island: The magnificently restored building and the marvelous displays affirm we are a pluralistic nation, not defined by race or ethnicity or religion but by aspiration and devotion to the promise of America.
Mount Vernon: George Washington seems like a remote, stiff figure to many of us. Visiting his home and the superb library there will change your perspective and deepen your understanding of this extraordinary figure. You’ll come away even more convinced that he was the indispensable man in our nation’s founding.
The National Infantry Museum and the National Museum of the Marine Corps.: In Georgia and Virginia, respectively, these museums provide a granular understanding of American wars and military life. The Marine museum in particular does a masterful job with elaborate exhibit design (including walk-through simulations) and multimedia presentations.
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Emily Foster is a globe-trotting journalist based in the UK. Her articles offer readers a global perspective on international events, exploring complex geopolitical issues and providing a nuanced view of the world’s most pressing challenges.
