Commentary on Political Economy

Wednesday 6 March 2024

 The tyranny of America’s Supreme Court


Edward Luce edward.luce@ft.com · Mar 7, 2024


John Roberts pledged that his role as America’s chief justice would be to “call balls and strikes and not to pitch or bat”. In practice the Roberts Supreme Court is both player and umpire. Two recent Supreme Court decisions could shape the course of US history. Last week the court chose to hear Donald Trump’s appeal for blanket immunity from anything he did as president. Then on Monday it ruled that Trump’s alleged attempt to overturn the 2020 election should not prevent him from being on the ballot.

The great thing about modern sports is that you can check decisions on replay. No amount of parsing could reconcile the court’s two decisions with a single set of rules. The common ground between the two is that they suit Trump’s purposes. The first was a form of judicial slow walk. Last December Jack Smith, the special counsel, asked the court to expedite the decision on Trump’s immunity. Given that Smith has charged Trump with trying to overthrow an election, the need for urgency was self-evident. The court seemed happy to leave that question to the federal appeals court, which in early February ruled unanimously against it.

In the three judges’ biting opinion, there was no merit to Trump’s argument that a president can do what he likes, including assassinating political rivals. Nothing written by the constitution’s framers hinted that they saw the president as above the law. In spite of that, the Supreme Court decided last week it would hear the case after all. Yet it would only be able to do so in late April, which means its decision will probably not come out until late June. In total, the court will have swallowed about six months between Smith’s initial request and its ruling. What it ultimately decides is beside the point. The delay virtually guarantees that Trump’s trials will not finish before the election in November. An election-altering share of Trump voters say they would change their vote if he was convicted.

In contrast, the court took just 10 weeks to unanimously overturn the Colorado ruling that struck Trump’s name from the ballot. A majority then signed a concurrent ruling that only Congress could enforce section three of America’s 14th amendment, which says that no one who has “engaged in insurrection” can run for federal office. That interpretation would allow those convicted in the January 6 2021 storming of Capitol Hill to run for office. That would likely include Trump, if his trials are ever finished.

This sets up a “tails you lose, heads I win” situation for Trump. As Senate minority leader, Mitch McConnell, declined to convict Trump after he was impeached in 2021, saying that his actions were a matter for the courts to decide. The court is now saying that it is a matter for Congress. This is called whack-a-mole. Nobody with any knowledge of today’s Congress would expect it to pass any such law.

All of which deepens the ball-watching public’s confusion about which game the court is playing. The majority gave a far more expansive answer than required or expected. Under both a textualist’s reading, which goes with the letter of the law, and an originalist’s reading, which looks at the spirit of the law, the meaning of the 14th amendment is unequivocal. Textualism and originalism are the two doctrines most often cited by the conservative justices in their nomination hearings.

Roberts is also an exponent of judicial restraint — that the court should only answer what it has been asked and avoid straying further. They should speak only when necessary and with “humility, integrity and dispatch”, as he put it. In this case, however, the majority went far beyond the question to effectively disable a key section of the US constitu- tion. Was that a strike, a ball — or were they swinging from the plate?

John Rawls, the political theorist, cre- ated a “veil of ignorance” to get people to imagine the rules of a just society. If you did not know your place in society — be it rich or poor, weak or powerful — what rules would you deem fair? It is hard to believe people behind that veil would give nine judges the lifetime right to decide the rules of the republic with no retirement age or realistic way of holding them accountable. It only works if the public trusts their neutrality.

The magic of Rawls’ thought experi- ment is that people of any ideology can intuit the same thing. If today’s picture were reversed — and a liberal-majority court was shielding an insurrectionist Democrat — it would pose just as big a danger to democracy. America’s fram- ers tried to inoculate the US system from the plague of faction. They cannot have imagined that the system’s umpire would also be playing for a team.

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