The Supreme Court is an out-of-control right-wing cabal? Not according to the numbers | Opinion
As Americans prepare for what is likely to be a landmark ruling on whether Donald Trump enjoys absolute immunity from prosecution for his acts in office as president, Democrats are getting out the rhetorical axes to bash the conservative court where six Republican-appointed justices have the power to railroad Democratic appointees who hold half as many seats.
As one, a chorus of Democratic opinion leaders and politicos are trashing the court before it even has its say in the matter.
Harvard Legal scholar Laurence Tribe says the court “aided Trump’s 2024 election strategy and damaged our democracy.” Washington Post commentator Jennifer Rubin blasts the court for the “bad faith and bias on the part of the right-wing Supreme Court majority.” If the Supreme Court grants Trump immunity, Democratic Rep. Adam Schiff writes, “there will be no hiding the Court’s culpability in the unraveling of our republic.” Bill Clinton cabinet member and widely followed progressive Robert Reich argues that the “court’s MAGA justices are granting (Trump) de facto immunity by delaying their decision so long.” Progressive MSNBC eminence Rachel Maddow calls the court “flagrantly corrupt.”
It is almost as if liberals are tearing down the institutions of our democracy just as they accuse Trump and his followers of doing. Before the court rules, as early as Wednesday, perhaps we should take a moment to consider the Supreme Court with a more judicious eye than the rhetorical fire breathers of social media
It is true that the Supreme Court is taking its time in ruling on Trump’s farcical immunity claims. I sure wish they were not taking more than 100 days. At the same time, it is also true that the case was the last one argued before the court, so it shouldn’t come as a surprise if it is one of the last decided. Crafting credible court decisions can’t be hurried.
One reason the court takes its time is that justices need to work together to come to agreement on the arcane details of rulings that can run dozens of footnoted pages where one turn of phrase can completely reshape American law. Nonpartisan court decisions where the justices come down 9-0 or 8-1 are more credible and widely accepted than narrow 6-3 or 5-4 rulings divided largely along partisan lines.
That’s why Chief Justice John Roberts tries to lead the court in a nuanced way that produces those credible decisions. Indeed, his record is that the plurality of court decisions are 9-0 and many more are of overwhelming majorities of 7-2 or 8-1. The facts undermine the argument that the court’s right-wing justices are out of control.
Moreover, the majority of 6-3 decisions so far this term have not been decided along partisan lines with all the right-leaning justices on one side and all the left-leaning justices on the other — no, in most cases, on both sides, the winners and the losers are bipartisan.
A perfect example of this careful decision-making came last Friday when an 8-1 court in the United States v. Rahimi case ruled that states can strip those accused of domestic violence of their gun rights when the gun owner is under a restraining order from a court. If an out-of-control right-wing court were out to ram through its pro-gun policy preferences, that’s exactly the kind of ruling you’d expect to be 6-3.
And in Trump’s immunity case, it is particularly important to get the nuances are right. It is possible, even likely, that Trump will be president this time next year. He and his newly-installed lackeys at the Justice Department would have the power to indict then-former President Joe Biden.
The Supreme Court decision will have to be careful in drawing exacting lines between the extraordinary reckless abuses of power committed by Trump around his 2020 election denialism and the normal abuses of power and law-bending that every president engages in — say, Biden’s border policies or decisions to forgive student loans piecemeal, despite a Supreme Court ruling that he could not do it wholesale.
If it takes some time to explain why Trump should face trial and Biden should not with a bipartisan majority of Supreme Court justices agreeing, then we should be willing to wait a little while to get the results our democracy needs.
David Mastio, a former editor and columnist for USA Today, is a regional editor for The Center Square and a regular Star Opinion correspondent. Follow him on X: @DavidMastio or email him at dmastio1@yahoo.com
