For decades, dating back to the 1980s and accelerating greatly after the fall of the Iron Curtain, the rule of law was a central thrust of America’s and other wealthy nations’ aid to poorer countries. U.S. judges, lawyers, consulting firms, think tanks, foundations and nonprofits spent tens of billions of dollars and countless hours seeking to teach, preach and learn how to promote the concept in Asia, Africa, the former Soviet Union and elsewhere.
The term can mean many things. But above all, the rule of law means this: No one is above the law.
Falling Back
Despite all this aid, the rule of law clearly is faltering across the globe, in ways that unfortunately resonate in the United States. Rather than countries like China respecting the rule of law more, we’re starting to emulate them in some dangerous ways. A bit more on China below.
No entity is undermining the principle here at home more than the institution ultimately responsible for protecting it: our extreme Supreme Court.
The Court has demonstrated the breadth of its extremism in countless ways. They include its 2022 Dobbs decision, which overturned nearly 50 years of conservative Court jurisprudence on abortion. Then there’s the Court’s extreme tolerance for de facto corruption of or other undue influences on its justices, particularly Clarence Thomas and Samuel Alito.
Even Assassination?
But no episode better plumbs the depths to which the Extreme Court has sunk than the dispute it is currently considering, Donald J. Trump v. United States – aka the January 6 election interference case.
Put simply, the Court is contemplating the audacious argument that Trump is immune from prosecution for various acts that sought to overturn the 2020 presidential election.
On its face, the Trump attorneys’ claims that his efforts to overturn the election fall within legitimate official duties, and are thereby immune from prosecution, are ludicrous. There’s nothing legitimate or official about putting forth false slates of electors, pressuring state election officials to not do their jobs or seeking to block the congressional certification of a presidential election.
A federal appellate panel unanimously held as much earlier this year. In view of the absurdity of the immunity assertion, many observers assumed that the Extreme Court would decline to even hear an appeal of that court’s decision or, at worst, that it would consider the case but rapidly rule against immunity.
In contrast, in an Alice in Wonderland sequence of events during last month’s Trump v United States arguments before the Court, it entertained a Trump attorney’s assertion that a president could be immune from prosecution for ordering the assassination of a political rival, selling nuclear secrets to a foreign enemy or staging a coup.
The conservative majority, led by Justice Alito and with the partial exception of Justice Amy Coney Barrett, also fretted far more about hypothetical problems than the dangers at hand. As one law professor put it, “Justice Alito worried about a hypothetical future president attempting to hold onto power in response to the risk of prosecution, while paying no attention to the actual former president who held onto power and now seeks to escape prosecution.”
Just Wait
But the immediate danger is not necessarily what the Court will decide but that it’s taking its sweet time in doing so. By taking Trump’s extensive immunity claims seriously, it enables him to do what he does best with the law: delay until he can escape its consequences.
The bottom line could well be this: The Court won’t issue a ruling until late June. That decision could well refer a number of complicated sub-issues to the lower courts to resolve before trial or otherwise impose further delays in going to trial. If Trump triumphs in November, he will cancel the prosecution once back in office.
Even Worse Than Immunity
Back to China. Those agencies supplying rule-of-law aid there were under no illusions that the country was becoming a liberal democracy. But they saw possibilities that the regime might loosen up somewhat in its own interest, in order to advance a market economy and limit unrest by providing citizens redress for wrongs – as long as the legal system was not employed to challenge the Chinese Communist Party’s power.
We now know that this did not go well. The current regime is China’s most repressive in decades.
We can also hark back to what the Chinese government really sought with its so-called legal reforms. Despite its rule-of-law rhetoric, it was instead really promoting rule by law: that the law (in combination with force) would be used to keep control over the society while those atop the power pyramid remain above it.
That’s what we might face in America. Not total abandonment of our legal system by any means. Nothing like China’s brutally repressive apparatus. But something dramatically worse than what our flawed system experiences today, even with all of its current expense and inequities.
Thanks to our Extreme Court, we face the threat that one man will evade justice despite seeking to destroy our democracy – and seeking to resume his cruel quest once back in office.
That won’t just be immunity. It will be something that the leaders of China and all too many other nations know all too well: impunity.
[HT: BL]
matt starr says
thank you fo illumination of this current
thank you for the illumination of our current American realities. Hope for change…
Richard Fleming says
Insightful commentary, Steve. The current Supreme Court appears willing to bend laws, precedents, and originalism to benefit the GOP. If it had been Obama or Clinton asking for absolute immunity for acts performed while in the White House, the Court would have very quickly denied the request. When Biden at some point leaves office, if he is indicted for some acts he took as president, the current Supreme Court would find a way to quickly deny him immunity.
On many issues, the overt political biases of this court come out. I’ve read the Constitution, and there is not one word in it about citizens having a right to own assault weapons. The Second Amendment talks about the right to keep and bear arms — in the context of maintaining a standing militia — but machine guns did not exist then. Someone claiming to base their legal opinions on the words in the Constitution and the realities extant at the time of our country’s founding should quickly acknowledge that it is fully constitutional for states to prevent citizens from owning assault weapons. Especially if they are trying to purchase them as individuals, not as members of a militia.
Ditto for many other Court decisions:
1. money buys free speech,
2. corporations are like people and have absolute freedom to conduct their business the way they want to (unless the corporation has a liberal orientation and is pursuing liberal social goals),
3. government regulatory bodies cannot implement and enforce rules which protect the environment and workers’ rights (but it is fine for them to actively enforce rules which harm the environment and workers’ rights, i.e. when a Republican sits in the Oval Office).
Steve Young says
Trump is at least honest about wanting to be an autocratic dictator, and is also brazen about telling people everything he will do in a second term. The contents of his plan are horrifying, as is plans to fire 50,000 civil servants and replace them with loyalists. The Court has lost what little legitimacy they may have once had for the reasons you enumerated. I fear too few people are paying attention to the looming threat to our democracy but instead are focusing on the cost of gas and groceries.