On July 4, we will have to celebrate America’s return to monarchy | Opinion
Three days before the nation celebrates its declaration of independence from monarchial rule, the Supreme Court effectively ruled that the United States is no longer a democracy, but a constitutional autocracy in which the president is above its Constitution and the laws enacted under it.
At the end of April, in an op-ed in the Lexington Herald-Leader, I wrote that, in the oral hearing that the court finally got around to holding about former President Trump’s absurd claim of absolute immunity, the court chose to ignore the amici curiae brief that a group of distinguished historians had submitted in which they warned that granting “immunity for the crimes here alleged would be most abhorrent to the Constitution’s framers” inasmuch as it would make him the very sort of monarch whose tyranny they had fought a war to escape. Instead, the conservative justices introduced the false dichotomy of official versus unofficial acts of a president. I argued that the only question the justices should have addressed was: is a president bound by the Constitution and the laws enacted under it, or does he have some unique immunity from them by virtue of his being president? “To immunize his official acts is to say that a president can do whatever he pleases in the capacity of being president. This is the legal nihilism which paves the way to autocracy . . . democracy is hanging by a thread at the court.” On July 1 that thread broke.
What few, if any, expected the court to do, they have done and more so. Under unprecedented pressure to clean their own house and to disown the ultra-reactionary rulings that their current term has produced, they have decided to demonstrate just how unaccountably corrupt they truly are and, by remanding the case back to the district court, have assured that the former president will not face federal trial before the election. Even more troubling is the reality that the justices have so boxed in Jack Smith with their presumption of immunity for whatever Trump can claim to have done as president, that it is hard to see where the special counsel goes from here.
This decision is beyond belief. Worse than “Dred Scott,” worse than “Plessy,” even worse than the court’s savaging of government agencies as regulatory bodies earlier in the week. This decision gets to the very heart of the government of laws to which we claim to profess loyalty. It makes a mockery of the oath of office which every president takes at his inauguration.
Before yesterday such a ruling seemed a remote possibility. Surely the justices could not embrace such an undemocratic position. Well, everyone now gets a better glimpse of the rottenness at the core of the court’s supermajority. History will not be kind.
In the wake of the court’s alarming action, one cannot help but wonder about the genesis of the immunity claim. Did a justice like Alito and/or Thomas signal to Leonard Leo and the radical legal revisionists in Leo’s orbit that the supermajority welcomed taking up even such a far-fetched issue as absolute immunity, thus setting in motion Trump’s ridiculous claim which the court has now shockingly affirmed? Whatever the origin of this despicable ruling, the court has lost any pretense of legitimacy. The very illogic of the supermajority’s argument is powerful evidence that political interests prevailed over their judicial responsibility to interpret the Constitution in good faith and for the common good. They have failed criminally in becoming the ultimate enablers of Donald Trump’s autocratic aspirations.
Robert Emmett Curran is a professor of History Emeritus at Georgetown University.
