Wednesday, July 03, 2024

The GOP elephant in the US Supreme Court room

I suppose I have to comment on the US Supreme Court's groundbreaking and frankly inexplicable decision granting near absolute immunity from prosecution for a serving president acting in the course of their duties. It is, after all, one of the most important and momentous decisions the court has ever made, the Dobbs abortion case notwithstanding. And it's absolutely wrong (just ask any legal scholar without a Republican axe to grind).

Thus is the first time that ANY kind of presidential immunity has been officially ruled on, and it throws out a lower court ruling which rejected Donald Trump's claim of immunity from federal criminal charges regarding his attempt to overthrow the results of the 2020 election. It does concede that there is no immunity for a president's "unofficial acts", however that might be interpreted, but this ruling has thrown everything regarding Trump's various court cases wide open. At the very least, it has effectively put most of Trump's cases on hold until after the November election. Good job, guys.

Some have described it as a modern equivalent of the medieval "divine right of kings". It effectively puts the president, and even former presidents, above the law, and marks a severe blow to democracy in an America where Trump is already talking about taking on dictatorial powers if he is voted in. 

Other legal commentators, including some conservative judges, have accused the Supreme Court conservative majority of abandoning the legal philosophy of "originalism" that they have claimed to espouse in other cases. This latest decision lacks any basis in the Constitution or historical tradition.

As one of the dissenting judges put it, the ruling creates a "law-free zone around the president", and it raises the possibility that a president could, for example, assassinate a political rival with compete impunity, or take a bribe in exchange for a pardon, again with effective legal immunity. "In every use of official power, the President is now a king above the law", she wrote. A president, under this ruling, can lie, steal, kill, imprison rivals, trade secrets to foreign powers, all with complete impunity. Is that really what the Supreme Court intended?

Now, I don't want to get into any more of the details and implications of the case. You can read up on that yourselves. But I do want to address the huge elephant in the room. And that is the fact that the ruling was a purely political, rather than a legal, one. All six conservative judges voted for it; all three liberal judges voted against. So, there is really no chance that this decision was made on legal principles alone. It is a mockery of the rule of law, and another step along the path of the destruction of democracy itself. And that is indeed a scary thing.


Although it predated the presidential immunity decision by a few days, and although it perhaps received less media attention, another Supreme Court ruling - also by a 6-3 margin along party political ideological lines - may be just as important.

The ruling overturned the Supreme Court's own 40-year old "Chevron deference" doctrine. The practical effect of this is to make it harder for executive agencies to tackle a wide array of policy areas from environmental and health regulations to labour and employment laws, giving the judiciary more say in what federal agencies can do in  interpreting and implementing laws.

Justice Elena Kagan, one of the forlorn liberal voices dissenting the decision, notes that Congress would normally prefer the interpretation and resolution of ambiguities in new laws to be carried out by a responsible agency with expertise in the area, not by a generalized court of law, and warned that the ruling is likely to produce widespread and large-scale disruption. More federal rules will be challenged in the courts, and will find themselves subject to more ideological interpretation. She called the decision a "grasp for power" by the majority Conservative element of the Court.

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