Supreme Court's presidential immunity ruling is an attempt to legitimate GOP insurrectionism
The right-wing majority's opinion offers further proof that the replacement of democracy is a Republican Party-wide goal
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This piece was originally published at The Hot Screen.
In the years since Donald Trump’s attempt to overthrow American democracy in the wake of the November 2020 election, I’ve argued that Republican politics should be viewed through the lens of a party-wide insurrection against U.S. democracy, a movement ignited by the former’s president’s foiled coup attempt. You could say that the GOP began this dark endeavor with gusto. In the immediate aftermath of the storming of the U.S. Capitol building, most GOP House members quickly voted against certifying the election results, despite the fact that this meant validating the rioters’ goal; then, in the following weeks, a majority of Republican congresspeople and senators opposed the impeachment and conviction of Donald Trump for his attempts to undo the election results. Their unconscionable votes proved to be a retroactive endorsement of Trump’s actions, as a large proportion of elected officials, and a majority of the party base, grew over time to embrace the Big Lie of a stolen election as an article of party faith. The GOP also demonstrated its alliance with January 6 perfidy by vociferously opposing investigation of the events surrounding that day, leaving the Democrats to head up what the GOP would try to label as a partisan investigation.
In the following years, the GOP’s support for Trump’s insurrection has been an essential framework for understanding and properly describing major thrusts of Republican policy and political machinations. At the state level, there have been initiatives to undermine election administration so that future efforts to manipulate the vote might be more successful. Arguably even worse, they encouraged an atmosphere of menace against those administering elections, by tacitly or explicitly supporting right-wing threats against election administrators. Simultaneously, we’ve seen renewed schemes to disenfranchise likely Democratic voters. Even as such efforts have continuity with decades-long Republican voter suppression, in the post-January 6 context they can be more precisely seen as efforts to attack American democracy and majority rule. And beyond law-making intended to corrupt American democracy, the GOP has propagated lies about mass voter fraud and illicit elections results, building on the Big Lie of 2020. To my mind, most singularly toxic are Republican lies that not only are Latino immigrants “invading” the United States, but that they’re also voting and are responsible for whatever victories Democrats manage to win. In one sinister package, the GOP manages to embrace the extremist Great Replacement theory, dehumanize innocent migrants while imagining them as a hostile army, and subvert the electoral system.
The single largest piece of evidence that the party’s overriding end is to overthrow America democracy, though, has been the party’s alignment with Donald Trump, the man who. . . tried to overthrow American democracy — and whose clear goal for a second term is to complete his attempted insurrection, which turns out never to have ended but only evolved and mutated through the present. Even a cursory look at what we can discern of Trump’s second term agenda shows plans to take a jackhammer to the rule of law, our free society, and fair election. With plans to stack the Justice Department with die-hard loyalists, a Project 2025 blueprint to impose reactionary repression across America, and avowals to prosecute and jail political opponents, Trump’s planned authoritarianism is sitting in plain view. The GOP’s elected officials, having looked up these plans, have still pledged themselves to support America’s would-be dictator. Perversely, the fact that such a huge chunk of the GOP is complicit or acquiescent obscures that all of this indeed constitutes an insurrection, since it so neatly overlaps with partisan divisions and allows many to characterize the conflict as simply “polarization” or partisan warfare. Yes, it is both of those, too, but in the same deeply misleading way that you might describe World War II as an instance of a highly polarized political environment involving serious partisan warfare. To put it plainly: a movement that seeks to destroy democracy and the rule of law in order to overturn majority rule, and to permanently replace it with a one-party state, should be seen as insurrectionary in nature.
Which brings us to the Supreme Court’s ruling on presidential immunity issued at the beginning of July. As many were quick to point out, the conservative justices ruled in a way that flies in the face of the U.S. Constitution and American democracy as it has existed for nearly 250 years. Asserting an idea of “absolute immunity” for the president’s “official acts,” the Court proceeded to set up a pyramid scheme of legalese and bad faith by which, in essence, anything the president does is by definition not a crime. In other words, the president is to be considered above the law; an equally accurate and more urgent way of putting this is that the president now has absolute power over the U.S. government, and by extension, over all of us. After all, to cut to the violent chase, if he can now legally assassinate members of the other branches of government if they don’t bend to his will, no true limits can be said to exist on presidential power.
It’s not going too far to say that, in issuing a ruling that transforms the president into a virtual king, the Supreme Court has attempted to nullify the Constitution and American democracy in one blow. Given that the ruling was explicitly issued in support of a man who waged an insurrection against the United States, and who wishes to return to the Oval Office to complete the job, as well as in support of a Republican Party united behind this man, it’s fair to conclude that the Supreme Court’s conservative majority has now explicitly joined the GOP’s insurrection. It has done so in the first place by making itself complicit in a previous effort to overthrow our system of government and replace it with something vicious, repressive, and unrepresentative. And looking to the future, it provides the ultimate pseudo-legal cover for illegal presidential acts, while asking us to pretend that the Constitution and the separation of powers still exist and deserve everyone’s deference, when in fact a lawless president enabled by the Court’s ruling would render the Constitution’s actual intent null and void.
More insidiously, the Court has also joined the GOP insurrection by taking aim at the rule of law itself. As David Kurtz writes in an excellent assessment of the ruling and various attempts to hold Trump to account for his crimes, “The rule of law, as the saying goes, must exist for everyone; otherwise, it exists for no one. By placing the president beyond the rule of law, the Supreme Court has deprived all of us of its protections.” In a similar vein, Jamelle Bouie reminds us that the rule of law is no abstraction, but a basic guaranty of our security, noting, “If the president is a king, then we are subjects whose lives and livelihoods are safe only insofar as we don’t incur the wrath of the executive. And if we find ourselves outside the light of his favor, then we find ourselves, in effect, outside the protection of the law.” This means that literally anyone who ever displeased a second-term President Trump might be thrown in jail, tortured, or killed; simply the threat of such retribution could be used to keep Americans in line, as they rightly feared for their lives lest they show opposition to the president (who, even before the immunity ruling, appeared quite willing to deploy armed U.S. troops against protestors should he gain a second term).
But even if you don’t agree, or simply can’t bring yourself to believe, that these could be the broader consequences of the Court’s ruling, even a narrower reading places the Supreme Court squarely behind Trump and the GOP’s insurrectionary drive. The Court, in issuing an opinion that clears Trump of wrongdoing in attempting to overthrow the government, has swept away the possibility of accountability for his crimes and thus cleared him to become president again.
Moreover, by explicitly clearing him of an attempt to stay in office by both violent and pseudo-legal means, the Court has essentially given its green light to future such efforts. Given the Court’s siding with insurrectionists over the U.S. Constitution, this aspect of the ruling may be its most immediately dangerous. By saying that a president has absolute immunity, and that this immunity covers violent attempts to retain power, the Court has also suggested that Trump and the GOP may use whatever means necessary to gain power in November, including bogus legal arguments by bad-faith actors, but also up to and including violence. After all, so long as the result is Trump gaining the presidency, all will be blessed and made holy through the Court’s anti-constitutional alchemy, past crimes washed away by dint of occupying the presidential throne. So not only has the Court knowingly granted legitimacy to a presidential candidate it well knows will make use of the grotesquely broad power it has granted, it has given a wink and a nudge to that candidate to do what he must to gain power in November.
Beyond that, of course, should Donald Trump succeed, he has been empowered by the Court to essentially rule as a dictator.
And this gets us to why I believe it’s so important that Democrats and other supporters of democracy conceive of the GOP’s collective behavior as constituting an ongoing insurrection. As much of a threat that Donald Trump poses individually, the greater threat stems from the way that the Republican Party has joined its power and identity to the former president. The GOP politics that have emerged — scornful of the rule of law, opposed to democracy, comfortable with the utility of political violence, oriented around authoritarianism and strongman rule — is not democratic politics, but its antithesis. The Supreme Court’s immunity ruling acts as the cement that glues the whole enterprise together — not only empowering lawlessness, but allowing the movement to claim that lawlessness is actually constitutional and democratic, all in a contemptible effort to confer legitimacy on this dangerous insurrection.
As such, no American is obliged to treat such politics as legitimate; certainly the Democratic Party is not obliged to do so. Instead, defenders of American democracy must loudly and consistently characterize such means and ends as in the first place illegitimate. For me, the single most potent way of condemning them as illegitimate is to describe how they constitute insurrectionism — an ongoing attempt to overturn the U.S. government, and by extension, the free American society our government protects and makes possible, and that most of us see as non-negotiable.
The Supreme Court’s immunity ruling should settle any debate as to whether the push towards autocracy is simply the cause of a single person, Donald Trump. Knowingly and thoroughly, the Supreme Court has placed its institutional heft behind a project to put a Republican strongman at the head of America’s government. This same project has been embraced, or consented to, by a preponderance of GOP state and elected officials. And as has been thoroughly documented, the Supreme Court’s conservative members appear deeply committed to the reactionary vision of American society that also propels much of the GOP base and the politicians it elects — a vision that sees white Christian males at the top of a social and power hierarchy below which all lesser Americans are pitifully ranked. It does not take wild speculation to assume that the justices who voted in favor of this joke of a ruling see Trump’s assumption of unbridled power as key to imposing a cultural as well as political regime with which they identify and sympathize.
Reminding ourselves that the Republican Party has been engaged in insurrection for at least the last three and a half years helps us see the immunity ruling in its proper light. Rather than an attempt to operate within the framework of the Constitution and the rule of law — the bounds of our democracy — the right-wing majority’s opinion holds that both are no longer operative in a meaningful way. To grant such a nonsensical ruling from Republican justices any legitimacy is no different than granting the broader Republican Party legitimacy when it attacks majority rule and when its presidential candidate threatens violent retribution against his personal enemies. The Supreme Court majority’s opinion should be treated with the same contempt and outrage Americans would show towards a ruling that re-instituted slavery, or once again condemned Japanese-Americans to internment camps. The ruling, rather than invalidating American democracy, should rightly be discussed and treated as invalidating the Supreme Court’s right-wing majority in one reckless, self-immolating act. Justices who would render such an opinion have shown themselves to be the Constitution’s hangmen, not its defenders.
Since the immunity ruling, public attention has been captured by the maelstrom around President Biden and whether he will be persuaded or forced to stand down from his presidential campaign due to concerns about his mental and physical capacities. The immunity ruling has made the stakes of Biden’s fate even higher than before. Should Trump return to the White House, only the most naive would think that he wouldn’t engage in a spree of violence and criminality, feeling secure in the Supreme Court’s blessing of untrammeled power rooted in freedom from accountability. One might say that much of the purpose of the U.S. Constitution was to prevent a man like Trump from ever gaining the executive power; thanks to an insurrection by the GOP and its allied Supreme Court, the nation is on the cusp of its own negation — but only if the majority acquiesces to this usurpation.
As I’ve argued before, Trump’s actions even before the immunity ruling rendered him illegitimate as a presidential candidate; such actions included his attempt to violently overthrow the government and his use of violent threat to coerce voters to cast ballots for him this time around. The Supreme Court has now acted in an insurrectionary and illegitimate manner to support his return to office and his exercise of dangerous, indeed outlandish power. The Democratic Party cannot proceed as if the immunity opinion is anything but what it is: a declaration of war on American democracy by a GOP-aligned Court majority. At a bare minimum, the ruling must be used as a weapon to rally a majority for rapid reform of the Court, necessarily including the addition of enough new justices to nullify the power of the Court’s radicals. They must state plainly that the Supreme Court has attempted to render every American, at the end of the day, as no longer possessing the rights of a full citizen, but rather reduced to being the subject of a king-like president that the Court is helping to bring to power.
Democrats must also make clear that this idea of American citizenry is now the Republican Party’s position, and that against this the Democrats stand for a real democracy, true equality, and the rule of law. Equally, Democrats must recognize and broadcast the nature of the larger conflict in which they’re engaged, where a determined minority is acting to overturn American democracy, and act with the requisite boldness. You do not defeat an insurrection by describing its participants as a loyal opposition; you do so by rallying the American majority to recognize and deny the illegitimacy of the insurrection’s tactics, goals, and false claims to be engaging in lawful governance.
One of the most debilitating tropes you hear from some otherwise solid defenders of democracy is that the United States is in danger of ending, of being lost forever should Donald Trump and the GOP gain power. And admittedly, what I’ve written here so far could be read in a similarly apocalyptic vein, and intentionally so: between an unfettered Trump, a complicit Supreme Court, and potentially a congressional majority, the GOP could implement all manner of laws blocking the ability of Democrats to win future elections. And this is on top the possibility of a deranged president wielding violence and repression against his political opposition. But in the face of this threat, we need to bear in mind two basics of life: the future is unknowable, and it can be affected by the actions we take today (for good or for ill).
One reason for optimism is that the Republican Party, from Trump to the Supreme Court, has wildly overplayed its hand. Trump, in adopting the rhetoric of 20th century dictators and mob bosses, is running full tilt against the general movement of the United States towards more democracy, not less; towards more equality, not less; towards more compassion, not less. While it is true that he has managed to radicalize a certain chunk of the population, I still believe that a majority of the population understands that what he’s peddling is poison to the body politic. Likewise, the Supreme Court’s right-wing majority, in issuing opinions that fly in the face of precedent and openly serve partisan ends, has been working hard to delegitimize itself in the eyes of the majority. The fact that multiple justices have engaged in open and contemptuous corruption (accepting millions in gifts, flying treasonous flags at home, lying to Congress during their confirmation processes) adds insult to injury. The Court majority has rendered itself obscene in the eyes of much of the public.
Beyond the fragility of the Republicans’ ideological positions, the sweeping changes to American society that Trump and the GOP would impose on the United States cannot be accomplished without widespread compliance by the American public. As Chris Hayes suggests in a recent segment of his show, assuming mass submission to immoral laws and acts concedes far too much in advance to political forces that are owed no such deference. Would military leaders really order their troops to fire on their fellow Americans? Would doctors across the United States actually respect a national abortion ban that condemned thousands of women to death, and tens of millions of others no control over their persons? Would Americans really stand idly by as millions of immigrants were rounded up and placed in concentration camps?
So this is a final reason, grim but optimistic, why I keep insisting that we view the GOP’s push for irreversible power as an insurrection against the United States. In a worst-case scenario, even if this authoritarian movement manages to gain the presidency, and even Congress, and seeks to entrench GOP rule by subverting the rule of law, such an insurrection cannot ultimately succeed if a majority of people refuse to recognize its legitimacy, and remain committed to American democracy and the rule of law. It cannot succeed if the majority views it for what it is — an illegitimate effort to subvert and overturn American democracy, the Constitution, and the rule of law. If the worst comes to pass, we should not expect or accept pro-democracy politicians to simply go along; we should demand politicians who rally the public, defy the authoritarians, and take back the country and its government. And these reasonable expectations hold equally true for every individual American as well.