The Supreme Court folds

Faced with the most potent threat to democracy in more than a century, our most revered institution didn't just fail to hold, it aligned itself with the threat

Jul 06, 2024

The Supreme Court’s ruling in Trump v. United States is its worst decision of my lifetime. John Roberts’s sloppy, arrogant, contradictory majority opinion provides license for any future president to lie, cheat, steal, suppress dissent, and — if they have the stomach for it — assassinate. It obliterates a guardrail for executive power that’s fundamental to a functioning democracy. So fundamental, in fact, that until the country elected an aspiring autocrat brazen enough to engage in open-air corruption, it was a guardrail few thought necessary to actually define. Of course the president can be prosecuted for actual crimes.

When Trump initially made his claim of “absolute immunity” for presidents from criminal charges, it was widely derided among constitutional scholars as a hopeless Hail Mary. Then John Roberts answered Trump’s prayers.

This opinion isn’t a stain on Roberts’s legacy. It is his legacy. He will be remembered as the “institutionalist” who destroyed the legitimacy of the institution entrusted to his care. And if that’s the worst of the damage, we’ll all be lucky.

Here are my thoughts on what just happened.

1. The majority opinion all but ensures what the majority claims to fear most

In their dissents, justices Sonia Sotomayor and Ketanji Brown-Jackson lay out the dangers of this ruling. Without the fear of criminal prosecutions, they write, presidents could manufacture criminal cases against their opponents, attempt to steal elections, trade pardons for bribes, or even assassinate their rivals. In his majority opinion, Roberts smugly dismisses these warnings as “fear mongering on the basis of extreme hypotheticals.” Stop being so hysterical, ladies!

Instead, Roberts writes, if the court had ruled against Trump, “the more likely prospect” would be an “Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”

I don’t know in what reality Roberts has been living, but it sure as hell isn’t this one. First, as he and Justice Clarence Thomas both point out, Trump is the first president in U.S. history to face criminal charges upon leaving office. For more than 200 years, presidents have served under the same threat of criminal prosecution for lawbreaking as the rest of us. This was the reality that existed before this decision. It’s why Gerald Ford felt compelled to pardon Nixon, and why Nixon accepted Ford’s pardon.

And you know what? It’s been fine. We haven’t resorted to tit-for-tat political persecutions of former chief executives. I’d go farther — if there’s one problem we have never, ever faced in this country, it’s presidents who are afraid to exercise their authority. Or expand it. Or exceed it. If anything, we’d be better off if presidents had more fear of consequences for their actions in office. (I’m no constitutional lawyer, but it’s also bizarre to me that the judiciary cites the separation of powers to prohibit the executive from holding itself accountable.)

Roberts neglects to grapple with the fact that powerful people — and heads of state in particular — abusing their authority is probably the single most predictable narrative across the whole of recorded civilization. The more heads of state have believe they’re above the law, the more prone they’ve been to abuse their power.

It’s been just as predictable among U.S. presidents, though our system of checks and balances has at least managed to forestall a reversion to the mean through two centuries and 46 administrations.

Roberts and the majority ignore all of this history. But that isn’t even the most offensive part. The most offensive part is that they invoke liberty. Roberts — and Thomas in his concurrence — write that the greatest threat to liberty comes not from telling the the most powerful person on the planet that he is above the law — but that not placing presidents above the law will prevent them from fully exploiting their power.

Again, prior to this week, the threat of criminal prosecution was always there. Yet Roberts doesn’t cite a single example of a president who refrained from exerting his power out of fear of criminal prosecution. Because there are none.

This week’s ruling gives presidents absolute immunity from “official acts,” even if such acts are carried out illegally, or for illegal reasons. It also suggests there is a presumption of immunity even for “unofficial” acts, though it offers no guidance for how to determine which unofficial acts are shielded. Importantly, the ruling also prohibits the courts from delving into the president’s motives, and it prohibits any evidence related to “official acts” from being used in any prosecutions of “unofficial” acts.

As both Sotomayor and Jackson point out, the majority has created this distinction between “official” and “unofficial” acts out of thin air, then made it impossible to distinguish one from the other. A president can come up with an “official” reason for just about any crime — from accepting bribes, to arresting journalists and critics, to targeted assassinations. Then — I guess we just take his word for it.

Last month Trump and his supporters claimed, ridiculously, that the boilerplate language in the Mar-a-Lago search warrant about the FBI’s authority to use lethal force was evidence of an assassination plot. Expect more of this. Cooking up fake assassination plots to excuse violence and suppression is an authoritarian trope as old as authoritarianism itself. Now, it doesn’t really matter if the plot is plausible. All an autocrat needs to do is claim that national security demands a crackdown, and he’ll not only escape criminal culpability, prosecutors will be barred from investigating if the claim is even accurate.

We saw a less consequential version of this with the clearing of Lafayette Square. The White House claimed that protesters were removed for security reasons, and that was enough for the courts to dismiss the lawsuit brought by people injured during the violent police action. It just didn’t matter if it was true.

Here’s another scenario we can draw up from Trump’s own words: Imagine that at some point after Trump’s inauguration, there are boisterous but peaceful protests both for and against his administration. Trump meets with his top advisors and says he wants to bring in the National Guard or military to arrest, beat, and possibly shoot any anti-Trump protesters. He says he wants the pro-Trump protesters left alone.

He gets pushback from top officials from the Pentagon, DHS, and other agencies. So he fires those people and replaces them with people who support the plan. He then executes his plan — he sends in troops to break up protests, with instructions to be exceptionally brutal to deter future protests. In response to the ensuing outrage, Trump claims, falsely, that he merely sent the troops to restore law and order. He insists that there was no plan to crack down only on anti-Trump protesters. It just so happened that those are the only protesters who presented a threat.

This scenario isn’t farfetched. It’s exactly what Trump wanted to do during the George Floyd demonstrations. He asked advisors if he could instruct troops to shoot protesters. He has repeatedly expressed his admiration for strongmen who use violence to quell protests, from Tiananmen Square to Hong Kong. It’s now been widely reported that Trump’s top aides and advisors are recommending he invoke the Insurrection Act and bring in the military to suppress any protests immediately after taking office.

Would Trump’s actions be illegal in the scenario above? Yes they would. Would they be prosecutable? Not likely. Not anymore. The incriminating part of Trump’s actions in this hypothetical come during closed door meetings with his top advisors — an “official act.” Even if a prosecutor wanted to argue that politically-driven crackdowns on speech cannot by definition be official acts, so long as Trump’s cover story is legal, under Monday’s ruling, prosecutors would be prohibited from questioning his motives.

They’d also be prohibited from investigating his real motives, because to do so would require obtaining evidence from his consultations with advisors, which the Roberts opinion explicitly declares to be protected. Even if a prosecutor could find such evidence — say, a staffer secretly recorded one of those meetings — prosecutors would be barred from using it to obtain an indictment and from presenting it to any jury.

In theory, the majority opinion leaves open the possibility that some unspecified “unofficial” acts amounting to crimes might be prosecutable, but even here they impose a presumption of immunity that prosecutors would need to clear.

With whom would those prosecutors need to clear it? The courts. So ultimately, the Supreme Court. None of these cases will have identical facts. This all but guarantees an ad-hoc, case-by-case application of criminal liability. So the Supreme Court has conferred upon itself the power to decide when each president does and does not deserve immunity. For a court that purports to want to stay out of the political fray, it has all but guaranteed it will be picking winners and losers in the most high-stakes political battles imaginable.

Partisan justices will of course have no trouble finding plausible reasons to green-light prosecutions of presidents they oppose, while barring prosecutions of presidents they support. But because these cases will be so fact-specific, even the most conscientious justices will be seen by opponents as acting politically if their ruling favors the president who appointed them.

During the oral arguments for this case, the conservative justices cited the charges against Trump, and then Trump’s promise to retaliate by prosecuting Biden, as evidence that we’ve entered Roberts’s much-feared era of tit-for-tat political retribution.

But that isn’t what happened. Trump began promising to prosecute his political opponents in 2016, well before he had set foot in the White House, and well before anyone had accused him of any crime. And despite what he now claims publicly, as president he did try to order the criminal prosecution of at least two of his perceived enemies — Hillary Clinton and James Comey. Those orders were ultimately rebuffed by members of his own administration.

Trump has since been indicted by a grand jury on charges brought by a special counsel appointed by the Biden administration for allegations that, if true, are actual crimes. He and his supporters have since promised to prosecute Biden for non-crimes like “failing to protect the border,” to prosecute Biden’s wife and brother for crimes that aren’t entirely clear, and to prosecute just about every other public official who has crossed him.

We are in a dangerous era, but the danger isn’t tit-for-tat prosecutions of ex-presidents. The danger is that one party is controlled by a man who wants to run the country like a vengeful mob boss and whose entire campaign is fueled by retribution and the desire to inflict pain on his enemies.

We know from multiple reports that Trump has told aides he is terrified of going to prison. The Robert court just removed one of the last remaining deterrents to Trump inflicting his wrath on the country.

Trump at various times has promised to investigate or imprison Hillary Clinton, Barack Obama, Joe Biden, Hunter Biden, James Biden, Alvin Bragg, Letitia James, Adam Schiff, Jack Smith, Nancy Pelosi, and countless others people he has decided are his enemies. His supporters have suggested targeting “unfriendly” judges and their families. In his first term he already tried to punish media outlets for covering him critically, and over the last several months people widely mentioned for top-level positions in his administration have openly threatened to target individual journalists with deportation or imprisonment. Trump has accused another long list of people of treason. In the last couple days he has personally amplified on his social media site demands that everyone from Liz Cheney to Kamala Harris to Mike Pence be prosecuted for treason before televised military tribunals.

To be clear, the only people in the paragraph above protected by this week’s ruling are Joe Biden and Barack Obama. Everyone else now at more risk of a targeted abuse of power, not less.

Is it an exaggeration to say Trump might have someone killed? This a man who of late has been favorably comparing himself to Al Capone. His mentor and idol was a notoriously unscrupulous mob lawyer and fixer. He regularly expresses his admiration for dictators who murder their rivals and critics. He has explicitly called for the execution of the former chair of the Joint Chiefs (and also people who loot and shoplift). I don’t know if Trump has the spine to order the assassination of a critic or opponent. But he clearly wants us to think he does.

But even this isn’t really the point. The point is that the Supreme Court has now said that if a president were to have someone killed, he needs only to come up with some tangential connection to an “official act” to avoid ever being prosecuted for it.

The more likely scenario is that a president orders his attorney general to manufacture evidence against someone — as, again, he has already done. Slip some classified documents into a briefcase. Upload CSAM onto a laptop. If the plan is exposed, so long as he claims what he did was part of his responsibilities as president, the criminal law can’t reach him. Maybe he gets impeached. But so long as there’s enough plausible deniability to provide political cover for 34 senators, he gets to remain in office — and he can now bribe or threaten without the threat of prosecution any senator who might vote to remove him.

2. Roberts’s wide net

The Roberts court at one point had a reputation for resolving cases on the narrowest terms — punting for procedural reasons whenever possible.

That’s obviously not the case any more. Before yesterday’s ruling, there was considerable debate over whether the president could be prosecuted for exercising his Article II powers in clearly illegal ways — accepting cash bribes for pardons, for example, or preemptively pardoning himself for future crimes.

These issues were not part of this case. Yet Roberts made clear that future presidents can now accept bribes, issue corrupt pardons, and appoint and remove executive officials for clearly illegal reasons without fear of prosecution. He also casually dispenses with the tradition of a wall between the White House and Justice Department when it comes to criminal investigations, almost inviting Trump to exert his influence over the agency.

Here’s Sotomayor, on the astonishing breadth of the majority’s decision:

In this case, however, the question whether a former President enjoys a narrow immunity for the “exercise of his core constitutional power,” has never been at issue, and for good reason: Trump was not criminally indicted for taking actions that the Constitution places in the unassailable core of Executive power. He was not charged, for example, with illegally wielding the Presidency’s pardon power or veto power or appointment power or even removal power. Instead, Trump was charged with a conspiracy to commit fraud to subvert the Presidential election . . .
If that were the majority’s concern, it could simply have said that the Government cannot charge a President’s threatened use of the removal power as an overt act in the conspiracy. It says much more. The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of “conclusive and preclusive” powers that the Court previously has recognized. The first indication comes when the majority includes the President’s broad duty to “‘take Care that the Laws be faithfully executed’” among the core functions for which a former President supposedly enjoys absolute immunity. That expansive view of core power will effectively insulate all sorts of noncore conduct from criminal prosecution. Were there any question, consider how the majority applies its newly minted core immunity to the allegations in this case. It concludes that “Trump is . . . absolutely immune from prosecution for” any “conduct involving his discussions with Justice Department officials.” That conception of core immunity expands the “conclusive and preclusive” category beyond recognition, foreclosing the possibility of prosecution for broad swaths of conduct. Under that view of core powers, even fabricating evidence and insisting the Department use it in a criminal case could be covered . . .
When forced to wade into thorny separation-of-powers disputes, this Court’s usual practice is to “confine the opinion only to the very questions necessary to decision of the case.” There is plenty of peril and little value in crafting a core immunity doctrine that Trump did not seek and that rightly has no application to this case.

Again, this opinion came down as Trump — who has been convicted of fraud and corruption, and stands credibly accused of numerous other abuses of power — is poised to re-take the White House. The justices know this. It’s hard to fathom why they’d then go out of their way not just to immunize Trump from his past crimes, but to provide him with a roadmap for how to commit crimes in the future.

Incidentally, here’s a headline from the very day this opinion came down:

3. MAGA’s elitist populism

One of the more striking things about the oral arguments in the Trump case was the conservative justices sudden concern for prosecutorial overreach.

Here’s Justice Brett Kavanaugh:

The problem is the vague statute, you know, obstruction and conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a --a creative prosecutor who wants to go after a president.

Here’s an exchange between Justice Alito and Michael Dreeben, who argued the case for the Justice Department:

JUSTICE ALITO: I mean, you --you have a lot of experience in the Justice Department. Do you come across a lot of cases where the --the --the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so?
MR. DREEBEN: There are such cases.
JUSTICE ALITO: Are there? Yeah?
MR. DREEBEN: Yes. But I think that the other --
JUSTICE ALITO: Every once in a while there's an eclipse too.

Here’s Roberts:

Well, that's what I --I mean, shortly after that statement in the court, that --court's opinion, that's what they said, but there's no reason to worry because the prosecutor will act in good faith and there's no reason to worry because a grand jury will have returned the indictment. Now you know how easy it is in many cases for a prosecutor to get a grand jury to bring an indictment, and reliance on the faith --good faith of the prosecutor may not be enough in the --some cases.

Alito again:

I mean, most of the --the vast majority of attorneys general and Justice Department attorneys --and we both served in the Justice Department for a long time --are honorable people and they take their professional ethical responsibilities seriously, but there have been exceptions, right, both among attorneys general and among federal prosecutors?

I suppose it’s nice that these justices are suddenly concerned with potential abuse, and think it’s a mistake to rely on the good faith of prosecutors. But let’s be real here. These same justices have been steadily eroding federal review of state convictions, including cases tainted by prosecutor misconduct. This concern for unethical prosecutors extends only to prosecutors pursuing wealthy people, politicians, or in this case, whoever happens to be occupying the most powerful office on earth.

Here’s Roberts again:

We do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith.

This is patently, laughably false. The Supreme Court has created “good faith” exceptions to the Exclusionary Rule that allows the state to use evidence from illegal searches if police promise they thought they were following the law. The court relies on the good faith of government officials when they invoke the State Secrets doctrine to prevent criminal defendants or litigants against the government from obtaining evidence that could help their cases, despite many examples in which we later discovered that the government only invoked the doctrine to cover up misconduct — including in the case that established the State Secrets doctrine. When police or prosecutors tell courts that potentially exculpatory evidence was lost or accidentally destroyed, the Supreme Court assumes those officials are telling the truth, putting the burden on criminal defendants to show otherwise. (The case that established that precedent turned out to be a wrongful conviction).

And finally, while the court has generally ruled that prosecutors must turn over exculpatory evidence under Brady v. Maryland, it has not required them to turn over their entire case files, which means that the court puts its faith in prosecutors to determine what is and isn’t exculpatory. When prosecutors have been shown to have deliberately withheld exculpatory material — even material that has led to exonerations — the court has protected those prosecutors from civil liability through the doctrine of absolute immunity, a doctrine which, like presidential immunity, is not in the Constitution, and which the court invented from whole cloth.

To give you a flavor of how this works in the real world, consider the case of Shareef Cousin, a Louisiana man convicted of murder and sentenced to death in 1996 based on testimony from eyewitnesses. Cousin was later exonerated and sued. In his lawsuit, Cousin alleged that prosecutors illegally detained his alibi witnesses so they couldn’t testify during his trial. That of course would be a crime. The Fifth Circuit ruled that even if that allegation were true, arresting alibi witnesses, while illegal, would have been within a prosecutor’s scope of duties. So Cousin’s prosecutors were immune from civil damages.

The court had a chance this term to take a case which could have limited absolute immunity for prosecutors. It declined. Only Sotomayor wrote an opinion dissenting from the court’s refusal to hear the case.

The absolute immunity afforded to prosecutors extends only to civil liability. They can still be criminally charged if they break the law. But the scope of what the courts have deemed to be “official acts” by prosecutors ought to be a warning about how they’ll approach the issue with presidents.

4. Originalism is dead. Except when it isn’t.

Much has been written about the “history and tradition” test crafted by Thomas and Alito, and occasionally adopted by some of the court’s other conservative justices in cases involving abortion and gun rights. The test is originalism on steroids, in which justices go poring through centuries-old pamphlets, speeches, newspaper articles, laws, and court cases in search of evidence to support decisions that are pretty clearly predetermined. It isn’t just a nutty way of resolving important cases — you’re really going to decide abortion cases citing laws passed in an era when women couldn’t vote? — the justices who engage in it often get their history wrong, as Justice Amy Coney Barrett pointed out earlier this term in an unexpectedly pointed criticism of Thomas in an intellectual property case.

But if ever there were a case that cries out for some “history and tradition” analysis — some meticulous searching for the true intent of the Founders — it would be one in which the president is claiming the power of a fucking king. Abortion wasn’t a hotly contested issue at the time of the Founding. But the power of the executive? It was kind of the Founders’ whole thing. As someone pointed out on social media yesterday, every one of the grievances against King George listed in the Declaration of Independence would, by Roberts’s analysis, have been an “official act.” The Founders literally broke off from England and went to war over a head of state’s abuses of power. Yet the “history and tradition” caucus was noticeably silent on this point.

Roberts takes only two swings at grounding his opinion in founding principles. First, he cites George Washington’s warning against factionalism in his farewell address. Marcy Wheeler explains at length here why this is a both a complete mischaracterization of what Washington was actually saying and, as Wheeler colorfully puts it, “a drone strike” on Washington’s most important legacy — the peaceful transfer of power.

Roberts’s other lackluster attempt to suss out what the Founders might have thought about criminal immunity for presidents comes when he cites a (very small!) portion of Federalist 70 in which Alexander Hamilton calls for a “vigorous and energetic executive.”

This is a misreading of Federalist 70. Hamilton argues that the executive should be a single person, not a rule by committee or a Roman-like co-consulship. In making his point about the need for a “vigorous and energetic” executive, he’s drawing a contrast to theArticles of Confederation, which had no executive at all.

It isn’t an argument for an unaccountable president. It’s nearly the opposite. Hamilton argues that putting one person in charge of the executive branch would make that person more accountable for his actions. Under an executive committee, members could blame one another for failures and abuses of power. In the same Federalist 70 that Robert cites, Hamilton argues that a single executive is more likely to be “narrowly watched and readily suspected.”

Federalist 70 also isn’t one of Hamilton’s finer rhetorical moments. To support his theory he cites the Roman republic. In times of crisis, the Roman senate had occasionally appointed an all-powerful but temporary dictator (this is actually where the term dictator originates) to expedite and consolidate decision making until the crisis abated. When they chose the right dictator, this worked out well. When the wrong dictator took over, it was disastrous. The mistaken assumption that putting all power in the hands of a single man was the best way to resolve a crisis also paved the way for the dissolution of the Roman republic, and ushered in the age of emperors.

It’s notable that Roberts would cite this particular Hamilton essay, given that much of MAGA world now pines for an “American Caesar” — and that said caesar should be Trump.

(Aside: Instead of banning books, these doofuses desperate for an authoritarian daddy should really focus more on reading the books they have all the way to the end.)

As Sotomayor points out, if you want to know what Hamilton actually thought about presidential culpability, you needn’t pull adjectives from his writing on tangential topics. He makes himself abundantly clear in a separate Federalist Paper that happens to be on point.

Here’s Sotomayor:

Nothing in our history, however, supports the majority’s entirely novel immunity from criminal prosecution for official acts. The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it. For instance, Alexander Hamilton wrote that former Presidents would be “liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69, p. 452 (J. Harv. Lib. ed. 2009). For Hamilton, that was an important distinction between “the king of Great Britain,” who was “sacred and inviolable,” and the “President of the United States,” who “would be amenable to personal punishment and disgrace.” In contrast to the king, the President should be subject to “personal responsibility” for his actions, “stand[ing] upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware,” whose State Constitutions gave them some immunity.

(Emphasis mine.)

Sotomayor then goes on to give the “originalists” the history lesson they apparently need — that any intellectually honest originalist ruling on this case would have strangled Trump’s risible arguments in the crib.

Other commentators around the time of the Founding observed that federal officials had no immunity from prosecution, drawing no exception for the President. James Wilson recognized that federal officers who use their official powers to commit crimes “may be tried by their country; and if their criminality is established, the law will punish. A grand jury may present, a petty jury may convict, and the judges will pronounce the punishment.” Debates on the Constitution 177 (J. Elliot ed. 1836). A few decades later, Justice Story evinced the same understanding. He explained that, when a federal official commits a crime in office, “it is indispensable, that provision should be made, that the common tribunals of justice should be at liberty to entertain jurisdiction of the offence, for the purpose of inflicting, the common punishment applicable to unofficial offenders.” 2 Commentaries on the Constitution of the United States §780, pp. 250–251 (1833). Without a criminal trial, he explained, “the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.” Id., at 251. This historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been that no man is free to flout the criminal law. The majority fails to recognize or grapple with the lack of historical evidence for its new immunity. With nothing on its side of the ledger, the most the majority can do is claim that the historical evidence is a wash.

The really infuriating thing about Roberts on this point is that he doesn’t just misleadingly cite Hamilton out of context. He then arrogantly calls back to his citation later in his opinion, as if he has already so thoroughly proven the Framers’ demand for an infallible president that no further discussion is necessary.

Given the Framers’ desire for an energetic and vigorous President, the principal dissent’s view that the Constitution they designed allows all his actions to be subject to prosecution—even the exercise of powers it grants exclusively to him—defies credulity.

It defies credulity, you see!

If this opinion were a cartoon, Roberts at this point would be whistling innocently while looking toward the ceiling, hoping no one notices the conspicuously lumpy mass of Founding Father king-loathing he’d just swept under his “energetic and vigorous” rug.

Thomas does the same thing in his concurrence:

Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts. Fortunately, the Constitution does not permit us to chart such a dangerous course. As the Court forcefully explains, the Framers “deemed an energetic executive essential to . . . the security of liberty,” and our “system of separated powers” accordingly insulates the President from prosecution for his official acts. Ante, at 10, 42 (internal quotation marks omitted). To conclude otherwise would hamstring the vigorous Executive that our Constitution envisions.

This passage is laughably over-the-top. Forcefully explains?

This isn’t serious legal theory. It’s shitposting libs-owing — the sort of thing you write to provoke grief and wailing among NPR correspondents and ProPublica reporters.

5. A branch above all others

We’re already seeing a backlash to the backlash against this ruling, with the hushed tones crowd accusing critics of catastrophizing. You know the type. They did the same thing after Dobbs, and with Trump’s election, and when some of us warned that Trump wouldn’t leave office without a fight.

The main argument from this crowd is that decent people will simply refuse to carry out illegal orders. Military leaders will refuse to beat, arrest, and shoot protesters. DOJ officials will refuse to bring sham prosecutions. The FCC will balk at revoking broadcast licenses because the president deemed some network’s coverage of him to be insufficiently fawning. Institutions will hold. As evidence, they point to what happened in Trump’s first term.

The first problem with this argument is that Trump still did a lot of damage in his first term. The second problem is that he learned from it. This is what the Heritage Foundation’s Project 2025 is all about. It’s a roadmap for Trump on how to remove anyone who stands in the way of authoritarianism. Heritage, Claremont, America First and the other high churches of MAGA have been pre-screening potential appointees for precisely this purpose.

It’s also worth contemplating the perilous position in which the Roberts court has put careerists in the executive branch. If you get an illegal order from the White House, the Constitution compels you to refuse it. But what if the president’s hand-picked Office of Legal Counsel has given that order the okay? If it’s a clearly illegal order, our executive branch official must now choose between facing potential criminal charges or angering a president who has now demonstrated a willingness to violate the law to persecute those who cross him.

Some have speculated that the Roberts court’s next move will be to immunize some executive branch employees from criminal liability, too. You can’t say for example, that a Defense Department or DHS secretary can be prosecuted for carrying out illegal orders, but not the president who issued them. My guess is that the court will treat absolute immunity the same way it has treated executive privilege, extending it to anyone with whom the president communicates or seeks counsel. And when it comes to executive privilege, the courts have been especially deferential on national security, law enforcement, and the “deliberative process,” three realms of executive power broad and vague enough to cover just about everything.

This court has already all but exempted executive appointees and law enforcement from civil liability for violating the Constitution. It only a matter of time before they do the same for criminal liability.

6. The delay

Finally, I’m struck that none of the opinions mentions the court’s inexcusable lack of urgency in this case. As others have already pointed out, the court came galloping to Trump’s rescue when Colorado attempted to take him off the 2024 ballot. The court took that case, heard oral arguments, and issued its opinion in less than a month.

Jack Smith asked the court to consider expediting Trump’s immunity claims last December. The court refused, forcing the case to first be heard by the D.C. Court of Appeals. That court turned out a unanimous ruling thoroughly repudiating Trump’s then-fantastical arguments in relatively short order, on February 6. The Supreme Court then agreed to hear the case, but scheduled oral arguments for 10 weeks later, on the very last day it hears such arguments. The justices then waited more than two months to issue the opinion, and published it on the very last day of an extended term. That opinion not only dismisses many of the charges — not for lack of evidence, but because of immunity — but sends the remaining charges back to the federal district court to reconsider.

By contrast, in 1974, the Supreme Court took, heard oral arguments, and issued its opinion in the Nixon Watergate tapes case all within two months. The court expedited that case because, as then-Chief Justice Warren Burger put it, “the matters at issue were of urgent public importance.”

Here, we have an upcoming election in which one candidate, who is now favored, has been credibly charged with trying to overturn the results of the previous election to stay in power. The court’s inexplicable delays mean that he will not be tried before the election. This means the public won’t hear all of the state’s evidence against Trump (or, for that matter, Trump’s defense) before voting. So voters won’t know if they might be returning to office a man a jury would have convicted of committing felonies to subvert democracy.

The delay itself was another gift to Trump, this time on whatever charges might remain after the case weaves its way back through the federal courts — none of which will happen if he’s elected. Yet the justices are so contemptuous of voters that they don’t feel obligated to explain themselves. There’s no mention of these delays in any of the opinions. There’s no attempt to explain or justify them — not even a perfunctory, “these are political, not constitutional, issues and therefore we won’t address them.”

The closest any justice comes to addressing the delay at all is Roberts who, astonishingly, credits the court — and thus himself — for deciding the case “on an expedited basis.”

Roberts has undoubtedly seen the criticism of how long it took to decide this case. He has undoubtedly seen the accusations that the court was “running out the clock” for Trump. Adding a line praising himself for how quickly the court acted feels about as close as an “institutionalist” justice like Roberts gets to waving a big middle finger at his critics.

A couple months from now, expect Roberts to give another speech in which he shames politicians and pundits for questioning his court’s legitimacy. This court lost its legitimacy years ago, and recent headlines have only affirmed that it has no mechanism to rein in even manifestly corrupt and partisan justices. Exposing their partisanship and corruption has only prompted them to double down.

The court’s last best hope as an institution was that there still might be a majority of justices with enough integrity to demonstrate their independence and claw back its reputation (for one admirable example, see Ketanji Brown-Jackson’s concurrence in Fischer). This case was a slam dunk opportunity to do exactly that. It was a chance for three justices to signal their integrity by defying the man who appointed them (and claims to own them) — and for two more to demonstrate that recent revelations about the hyper-partisan activities of their spouses and the gifts they’ve received from political operatives hold no sway over them. They could have ruled, definitively and unanimously, in a very easy case, to reinforce the most important principle of any free society — that no one is above the law, and least of all the most powerful person in the country, who has the whole of the government’s might and resources at his disposal.

They could have done that. They chose not to. And it’s not at all clear to me where we go from here.

One last point: Some members of the hushed tones crowd are scolding the court’s critics for using terms like “dictator” or “fascism” in response to this ruling, assuring us that of course Trump would never order the assassination of a rival, the arrest of a journalist, or the suppression of dissent.

I’ve lost patience for those people. Trump, to this day, says the people who stormed the Capitol, beat Capitol police officers, and chanted “Hang Mike Pence” were patriots and heroes, and that those who have since been sentenced to prison are “hostages.” So does most of the Republican Party, including members of Congress who were cowering under their desks on January 6th.*

Trump’s response to this ruling has been to amplify calls to haul his enemies before military tribunals.* His most prominent aides and advisors have openly threatened interment camps and imprisoning journalists. And — this seems important — when the hushed tones crowd has assured us that this is all bluster and Project 2025 isn’t a serious project, they have said in clear, unambiguous language, “No, really. We are serious. This is exactly what we plan to do.”

(*Witness one Mitch McConnell, who excoriated Trump after the attacks, and watched Trump hurl racist invective at his wife for resigning from Trump’s cabinet. McConnell now praises Trump, and has endorsed him in the upcoming election. After Monday’s ruling, Trump then amplified supporters’ demands to haul McConnell before a military Tribunal.)

When we think about authoritarianism, we tend to think it happens in an ambush — a foreign power invades, a military general seizes power in a coup, factionalism turns to violence, and the winning faction turns to suppression. But many authoritarian regimes took over with the consent of the majority of the population. This is where we stand right now. One of the two major parties in our democratic republic is campaigning on authoritarianism. They’re putting the foundational principles of democracy up for a vote.

If after attempting to overturn the results of a free fair election through fraud, deceit, and force, a majority of voters are willing put the same people back in charge, it’s unreasonable to expect our institutions to continue to hold.

A majority of the Supreme Court has now made clear that if an autocratic regime ever does take power, they have no intention of standing in its way.