Imagine for a moment that instead of daily reports from a New York Courtroom where Donald Trump is on trial for falsifying business records to describe a payoff to a woman with whom he had a brief affair in 2006, we would be getting daily reports from a Washington, DC courtroom where the US government is presenting chapter and verse about how Donald Trump encouraged and enabled an attempt to overthrow the will of the voters and deny Joe Biden the Presidency on January 6, 2021.
[One can read all the Trump indictments including the one for attempting to interfere with the 2020 election (with commentary) in a new book The Trump Indictments: The Histor4ic Charging Documents with Commentary authored by Melissa Murray and Andrew Weissmann (W.W. Norton: 2024)]
Having that trial probably would not convince those brainwashed into the Trump cult but it would have had a very salutary effect on public opinion in general. A jury of 12 ordinary citizens would listen to EVIDENCE (not sound bites) and render a judgment. Trump’s own people would be testifying under oath that they repeatedly told Trump he LOST the election and that charges that there was enough voter fraud to change the result were nonsense.
Alas, the Supreme Court has intervened, and now it is very doubtful that the trial will take place before the election if at all. This intervention shows that the five right-wing political hacks on the Court have nothing but contempt for the rest of us AND for the rule of law and the Constitution --- which they have sworn an oath to protect and defend. Thomas, Alito, Gorsuch, Kavanagh and Barrett (I am going to suggest Roberts may still have a modicum of sensitivity to the reputation of the Court but that remains an open question) couldn’t care less that the public has totally lost confidence in the Court. And they couldn’t care less --- in fact they are probably doing it on purpose --- that by delaying of Trump’s trial they are denying crucial information to American voters.
Let us remember that the US Court of Appeals for the District of Columbia issued a ringing smack-down of the Trump lawyers’ ridiculous assertion that ex-Presidents are IMMUNE FROM PROSECUTION for any acts committed while in office unless they have been impeached and convicted.
[For an outstanding summary check out Scott Anderson, Quinta Jurecic, Anna Bower, Natalie Orpett, Benjamin Wittes, Not So Immune: The D.C. Circuit’s Forceful Rejection of Trump’s Claim of Absolute Presidential Immunity, (Lawfare, February 6, 2024) available at https://www.lawfaremedia.org/article/not-so-immune-the-d.c.-circuit-s-forceful-rejection-of-trump-s-claim-of-absolute-presidential-immunity]
Here's how NY Times reporter David Leonhardt described the Supreme Court’s enabling actions.
“Trump’s federal trial for election interference had a chance to finish before Election Day, but the Supreme Court intervened. It did so in a way that caused several delays.
First, the justices declined to hear Trump’s appeal … on the expedited schedule that Jack Smith, the Justice Department’s special counsel, requested. Then the justices did agree to hear the case.
[After the Appeals Court decision]
And during oral arguments … , the Republican-appointed majority suggested it would issue a broad ruling setting a new precedent, which could take months.
On their own, each of these decisions can be defended. The overall approach, however, is very different from the one the court took in 2000 during Bush v. Gore. Then, the justices acted urgently, recognizing the political calendar, and said that their decision was a narrow one, applying only to a single election. This time, as Justice Neil Gorsuch put it, they seek a ruling “for the ages.”
Critics have pointed out that in both 2000 and 2024, Republican-appointed justices chose an approach that benefited the Republican presidential nominee. A fast, narrow ruling in 2000 stopped the vote count in Florida and let George W. Bush take office. A slow, broad ruling in 2024 may push the start of Trump’s federal trial past Election Day.”
(The New York Times “The Morning” April 29, 2024, available at https://mail.google.com/mail/u/0/#inbox/FMfcgzGxStwKWChvrxCLpKRsMRssNRQb)
This behavior by the Supreme Court appears inexplicable from the point of view of actually pursuing justice efficiently. Why did the Court refuse to take original jurisdiction if they ultimately were going to dive in? The only real explanation is they wanted to help Trump draw out the process OR they hoped the Appeals Court would fail to reach a unanimous decision. Now that they have taken jurisdiction, it is also important to note that they scheduled the oral arguments for the last possible day of the session meaning their decision probably would not be rendered until June.
As I mentioned above the Supreme Court’s tactics seem designed on purpose to deny ordinary citizens a chance to really see how those charges against Trump stack up. But this action (as noted by Leonhardt) is not the first of the Supreme Court’s egregious actions in support of Republican Presidential candidates.
Moving to more general issues, consider that in 2013, the Court eviscerated the Voting Rights Act with their Shelby County ruling. Two years ago, they overturned 50 years of precedent by overruling Roe v. Wade. And of course, let us not forget their suggestion at a recent oral argument that the old 19th century COMSTOCK ACT might be relevant to keeping abortion medications out of the mail.
[For the details of Shelby County v. Holder see https://www.oyez.org/cases/2012/12-96
On the possible relevance of the COMSTOCK ACT see Tierney Sneed, “Supreme Court abortion case brings 19th century chastity law to the forefront,” CNN, March 29, 2024 (available at https://www.cnn.com/2024/03/29/politics/comstock-act-alito-thomas-abortion/index.html)]
Perhaps a historical analogy will help. In 1857, the Supreme Court handed down the Dred Scott decision – a decision that stated that black people (even free blacks) had no rights of citizenship in the United States and that Congress did not have the power to ban slavery from territories.
[A good summary of the entire story --- it actually began when Scott filed for his freedom in 1846 --- is available from the Missouri State Archives (see “Missouri’s Dred Scott Case, 1846-1857, available at https://www.sos.mo.gov/archives/resources/africanamerican/scott/scott.asp#:~:text=Missouri's%20Dred%20Scott%20Case%2C%201846,Missouri%20Compromise%20to%20be%20unconstitutional.)]
The decision was roundly criticized by the newly formed Republican Party which just one year previously had run their first Presidential candidate. Abraham Lincoln himself made a speech attacking the decision. [For that speech see The Freeman Institute: “Abraham Lincoln’s Speech on the Dred Scott decision,” available at http://www.freemaninstitute.com/lincoln.htm]
With that decision, the Court had thrown in its lot with what the new Republican Party and their anti-slavery supporters called the SLAVE POWER. Resistance to “the slave power” had many elements. There were organized efforts to interfere with federal officials trying to carry out the Fugitive Slave Act which had been strengthened by the Compromise of 1850. In 1858, when Lincoln accepted the Republican Party nomination to run for the Senate against one of the most well-known American politicians Stephen A. Douglas, he delivered what came to be known as his “House Divided” speech. In it he argued that the United States could not endure half slave and half free --- it would become all of one or the other. He also noted that the Supreme Court with the Dred Scott decision was putting its weight behind turning the entire United States into a country everywhere open to slavery. [For that speech see: https://www.nps.gov/liho/learn/historyculture/housedivided.htm]
With the election of Lincoln in 1860, Southerners decided that slavery was in danger from a government run by Republicans and seceded. To quote Lincoln’s second inaugural address: “And the war came!”
Today’s Supreme Court by its actions is demonstrating that just as the Supreme Court in 1857 threw in its lot with the SLAVE POWER, the Roberts Court has thrown in its lot with the MAGA POWER.
The consequences could not be worse. Even if President Biden is re-elected and ends up with a Congressional majority, the Court will still be standing there, ready to throw monkey wrenches into whatever Biden and the majority of Congress pass. And if Trump is re-elected with a MAGA majority in Congress, the proposals of the extreme right wing Heritage Foundation Decision 2025 will be rubber stamped by a MAGA Supreme Court.
[The Decision 2025 document is long --- I doubt most people have the time or the stomach to get through it. Luckily a number of journalists already have. I found this discussion useful:
The Conversation. “Friday essay: Project 2025, the policy substance behind Trump’s showmanship, reveals a radical plan to reshape the world”. April 25, 2024, available at
https://theconversation.com/friday-essay-project-2025-the-policy-substance-behind-trumps-showmanship-reveals-a-radical-plan-to-reshape-the-world-227161]
The Supreme Court’s recent “Dred Scott decisions” have forced me to get on the bandwagon with those who believe the power of the MAGA majority on the Court must be curtailed. First Congress needs to impeach Clarence Thomas for refusing to recuse himself on all cases involving Trump’s effort to overturn the 2020 election.
As everyone knows, Thomas’ wife was (and remains) a very prominent member of the “stop the steal” crew spreading the Big Lie that the 2020 election had been stolen. It is impossible to imagine that Justice Thomas is unaware of his wife’s opinion. Thus, he must recuse himself. Since he has refused, Congress has no recourse but to impeach him.
The next step is to expand the Court by two. Why two? Because Mitch McConnell refused to given Obama’s nominee for the Court a hearing in 2016 which allowed Trump to put Gorsuch on the Court --- one stolen seat. Then, months before the election of 2020, with Justice Ginsburg still warm in her grave, McConnell rushed through the nomination of Barrett --- second stolen seat. With Thomas gone and two new Justices appointed (giving Biden three picks) the runaway Maga group will finally be tamed. I don’t think we have a choice.
In general, I believe we have to recognize that the Supreme Court’s behavior in recent years is exactly what the Court was doing in the Dred Scott case. Let us pray there is no second Civil War as a result.
Michael Meeropol is professor emeritus of Economics at Western New England University. He is the author with Howard and Paul Sherman of the recently published second edition of Principles of Macroeconomics: Activist vs. Austerity Policies.
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