As a lawyer for 24 years, and before that too, I've had a passionate belief in the rule of law, even in the face of this SCOTUS conservative supermajority's self-dealing, undemocratic decisions.
As a for-instance: Justice Thomas was in favor of Chevron deference in 2005—he wrote an opinion reaffirming it.
As that article I linked to says,
[Harlan] Crow co-founded the Club for Growth in 1999 to promote limited government and overturn Chevron. In 2010, he gave the justice’s wife, Ginni Thomas, $500,000 to start Liberty Consulting, a firm that handles anonymous political donations.
Now, in 2024, Thomas voted in favor of overturning the Chevron case.
The immunity decision goes farther. It allows a President Trump to commit official treason—invoke the Insurrection Act—a core power—to put "dangerous" Democrats in camps? Sure, why not; his motive doesn't matter.
Lawless? As in, made up from whole cloth.
Lawyer and excellent legal journalist Chris Geidner, wrote about Trump v. U.S. in his excellent Law Dork blog the day the decision came out:
It is a shocking expansion of presidential power to benefit Trump that transforms the presidency — and, with it, the nation.Chief Justice John Roberts wrote the court’s decision, making those broad pronouncements in Trump’s challenge to the special counsel’s indictment of the former president for his efforts to overturn the 2020 presidential election. Roberts did so, moreover, with no clear textual support in the Constitution — and a considerable historical record to the contrary.
But let me cite a more authoritative source.
The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is “at least . . . presumptive,” and quite possibly “absolute.” Ante, at 14. Whenever the President wields the enormous power of his office, the majority says, the criminal law (at least presumptively) cannot touch him. This official-acts immunity has “no firm grounding in constitutional text, history, or precedent.” Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 280 (2022). Indeed, those “standard grounds for constitutional decisionmaking,” id., at 279, all point in the opposite direction. No matter how you look at it, the majority’s official-acts immunity is utterly indefensible. (Emphasis supplied)
Trump v. U.S., No. 23-939 (July 2, 2024) (Sotomayor, J., dissenting, at 4), https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
Arthur Schlesinger wrote about the imperial presidency. Nixon started the ball rolling. Every Republican president, starting with him, has been antidemocratic and disrespectful of the rule of law. Trump was the apotheosis—so far, at least.
The next Republican president will be the last American president. The last real, duly elected one, anyway.
This decision feels like a punch in the gut—the emptiness I feel when someone dies.
My dear friend and lawyer comrade Marty Solomon (not the Christian minister) had a contrary view:
Imagine how decent lawyers felt when Dred Scott was decided. Or Korematsu. We have a long history of really screwing up our own law and then taking a long, long time to fix it. To be an American is to learn to live in an ugly, imperfect country, probably your whole life through—yet struggle to maintain faith in your principles and the collective ability to push for change until change comes.
Unfortunately, this decision has the potential to bring the American experiment down around our ears. How would we have fixed Dred Scott if the South had successfully seceded? How would we have fixed Korematsu if the Axis had won? (Trick question: It would have fixed itself, and the group in the camps would have changed places with people outside the camps.)
I've often said that the two biggest stains on our legal system are the death penalty and the Guantanamo prison. (Not to minimize the disaster of racist policing, SCOTUS's ridiculous interpretation of the Second Amendment, the erasure of the Establishment Clause in First Amendment jurisprudence… I could go on.)
But in this case, with this decision, John Roberts and his five unindicted coconspirators stained our legal system in a way that may be its end.
Hard for me, after that, to sustain my faith ("the evidence of things not seen," right?) in the rule of law.
And yet, I feel I have no choice.
