In Defense of the Supreme Court
An independent judiciary is essential to democracy.
In his book On Tyranny, historian Timothy Snyder counsels that one of the lessons to be drawn from the rise of totalitarianism in 20th century Europe is the importance of defending our institutions:
“It is institutions that help us to preserve decency. . . . They fall one after the other unless each is defended from the beginning.”
Of all the institutions of our self-governing democratic republic, few are more essential than an independent judiciary and at its summit, the Supreme Court.
The Supreme Court’s “Immunity” Hearing
Trump v. United States
An unintended irony of the name given to case number 23-939 is that it so perfectly describes the former president’s chosen posture as the Republican presidential candidate in 2024. Like his MAGA supporters, Donald Trump makes no arguments for the United States. But rather he stands against the United States. It’s Trump versus the United States, both in his campaign and in the courtroom.
On April 25, 2024, the Supreme Court heard oral arguments in case number 23-939, Trump v. United States. The specific question to be decided by the Court is this:
“Does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office, and if so, to what extent?”
The hearing lasted about two-and-a-half hours, and all nine Justices engaged the attorneys in a wide-range of discussion. Various hypotheticals and their implications were explored in depth, and some surprising concessions to points raised were made by attorneys on both sides. As a whole, the hearing met what the Supreme Court’s website describes as the purpose of oral arguments:
“The arguments are an opportunity for the Justices to ask questions directly of the attorneys representing the parties to the case, and for the attorneys to highlight arguments that they view as particularly important.”
So it’s surprising that much of the commentary in progressive media has been unrelentingly negative. Even some who generally tend to avoid hyperbole have been cherry-picking snippets of dialog to suggest that certain Justices were not just asking questions, but instead were advocating for particular outcomes.
Because of recent scandals regarding the financial entanglements of some Justices, there is good reason to question their motives. But aside from Clarence Thomas, whose wife was an active participant in efforts to overturn the 2020 election, there’s nothing to suggest that any others favor the election of Donald Trump. There was ample opportunity to lend credibility to his many claims of fraud in November and December of 2020, but the Court repeatedly declined to do so. Nevertheless, there is widespread suspicion among progressives that the Court’s conservative majority seeks to facilitate Donald Trump’s return to power.
The Supreme Court can be cleansed of financially corrupted individuals without undermining the institution itself. With an incipient authoritarian movement on the rise, maintaining the legitimacy of an independent judiciary is essential. And while public support is mostly dependent on outcomes, true legitimacy is derived as much from process as results. Not every wrong decision is indicative of systemic failure.
Perhaps because the prospect of a second Trump presidency is itself so threatening to the institutions of our democracy, some may believe that the Supreme Court should act as a guardian of the republic rather than an arbiter of constitutional issues. For those harboring such an expectation, any impediment to a quick verdict of “guilty” for Donald Trump is evidence of corruption or worse. However righteous such an attitude may seem to be, it is ultimately self-defeating.
If an institution is to protect itself, it must do so by remaining faithful to the norms and procedures that have historically conferred legitimacy upon it. At the Supreme Court that faithfulness is most essential when the implications of a particular case are the most profound. And the question of limits on presidential immunity from criminal prosecution, as raised by Donald Trump in case number 23-939, is undoubtedly one with profound implications.
Some have argued that the Supreme Court should never have taken the case. This declaration has been repeated so many times that one could be forgiven for taking it as self-evident. But that is most certainly not true. To the contrary, it’s self-evident that the claim of presidential criminal immunity is one that only the Supreme Court can adjudicate.
No lower court is empowered to address what is essentially a separation of powers dispute. In his application to be heard, Special Counsel Jack Smith himself asserts that it is “of imperative public importance that respondent’s claims of immunity be resolved” by the Supreme Court. And in his brief, Mr. Smith notes the importance of protecting “the effective functioning of the Presidency” as well as the President’s ability to perform “constitutionally assigned functions.”
The Court's own rule (Rule 10) governing the grant of certiorari (review) provides that one of the reasons a writ may be granted is if "a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court." That description fits this case perfectly.
Any “analysis” of the April 25 hearing should be grounded in the understanding that discussion and questions during oral arguments is not the same as a ruling. Raising a hypothetical example of potential abuse does not imply that the Justice is advocating for any particular outcome. Whatever the commenter may conclude about a particular Justice’s inclination, it is mere speculation. And often the point being made by that hypothetical refers to some obscure precedent or regulation.
For example, there was more than one exchange about something called the Clear Statement Rule, which predates this case by decades. The rule has been described by the Office of Legal Counsel in part as follows:
"Statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives”
In other words, there is already an assumption that the President is not bound by the same laws as the rest of us if they conflict with his duties (hence the "official acts" question). While the Supreme Court has on occasion applied the Clear Statement Rule, it has never had occasion to consider the Rule's implications and appropriate limitations, particularly with regard to criminal statutes.
The point is that there has not yet been a ruling on this matter. And simplistic conclusions drawn from complicated arguments should not be given much credence.
Many claim that the Court is seeking to delay the trial until after the election. These commenters suggest that there is a hidden agenda at work here, that conservative Justices are actively working to shield the former president from the electoral consequences of a trial by not expediting consideration of the case. Again this seems self-evident to those desperate to defeat Donald Trump in November. But there is little to support such a conclusion.
It’s true that the Court did rule quickly in both Bush v. Gore and Trump v. Anderson. In the former case, Justices abruptly ended the Florida vote count in the 2020 election in mid-December that year. In the latter case, they ruled quickly (and unanimously) that only Congress, not individual States, can enforce Section 3 of the 14th Amendment, barring insurrectionists from federal election ballots. But in those two cases there was a reasonable imperative for prompt action as the decisions had immediate and definitive consequences for the parties. Mr. Bush or Mr. Gore would become President in a few weeks; Mr. Trump would or would not appear on the ballot for an election to be held within a few days.
But in case number 23-939, Trump v. United States, it’s impossible to quantify the decision’s implications. No one can predict how resumption of the trial will affect the election. Indeed, under these circumstances it could fairly be argued that expediting consideration would weaken the legitimacy of the Court’s eventual decision, giving the appearance of an attempt to help Democrats in the November election. The better course was to follow normal order, while still deciding the case during this current term.
Also, it’s worth noting that the Supreme Court’s decision on the immunity issue is expected in June. While the ruling may establish a degree of immunity for some “official acts”, no one expects that immunity will be extended to a president’s “private acts.” Even Mr. Trump’s attorney concedes that some of the charges against him involve actions that are “private” not “official”. So the trial could still begin several weeks before November 5. Even in the absence of a verdict, the optics of being tried for multiple felonies in federal court during the final month of a presidential election campaign are obviously unfavorable for the candidate.
As was stated explicitly by some Justices, this hearing was only circumstantially about Presidents Trump and Biden. The real subject was more abstract and more universal. As stated above, it's about potential immunity from criminal prosecution for any president, including any former one, the present one and any future one.
The general public listens to these proceedings focused only on how the eventual ruling will affect the next election. We analyze the questions and answers hoping to get a hint as to whether Donald Trump will be helped or hurt in his quest to regain the presidency. Consequently, many commenters are outraged that there was no discussion of what the former president actually did. But that outrage is misplaced.
Certainly we should be outraged about what the former president did in his attempt to overturn the election and retain power. And we should be outraged that he apparently believes he is above the law, that as president he should be immune from all criminal liability. But there is nothing outrageous about seriously considering the claim. Nor is it indicative of corruption on the part of the Court for them to do so. The Supreme Court’s role is to decide constitutional issues, not to opine on guilt or innocence.
If the Court were to decide that presidents do enjoy total immunity as claimed, outrage would be totally appropriate. That would be counter to every precedent and norm under which our Republic has been governed since its founding. However, there is little in the record to suggest there will be such a ruling. Far more likely is that presidents will be granted a slightly wider zone of protection from vindictive prosecution than they do now, should their successor be someone like Donald Trump.
* Reforms *
The foregoing does not imply that this Court is in no need of reform. Quite the opposite. The need for reform is a persistent subtext lurking beneath the analysis of commenters who ascribe nefarious motives to arguments and decisions with which they disagree.
Recent revelations about Justices having close and financially beneficial relationships with wealthy individuals have brought an air of disrepute to the Court.
At the very least, a comprehensive and enforceable code of ethics needs to be imposed. Ideally, such a code would be crafted by the people’s representatives in Congress. But since that approach may be constitutionally suspect, the Chief Justice should either request that Congress do so, or should appoint a small advisory committee to formulate one. Again, this code must include a mechanism for enforcement, with clearly defined sanctions for violations.
In addition to financial corruption, the process of appointment and confirmation has also been corrupted.
In the not-so-distant past, Supreme Court nominees’ qualifications were primarily evaluated in terms of their judicial experience. Political affiliations were a factor, but a far less prominent one than they have become in recent years. With less emphasis on trying to determine how they might rule in specific instances, Justices were routinely confirmed in the Senate by large bipartisan majorities. That is no longer the case.
As the process of appointment and confirmation has become more politicized, it has become more susceptible to unprincipled manipulation. There’s no instance of this that’s been more damaging to the Court’s reputation than the Senate’s refusal to confirm President Obama’s nominee in March of 2016. By assuring a seat would remain vacant until after the next presidential election, the Republican Senate Majority Leader achieved his intended result: a Justice appointed by a Republican president, rather than by a Democratic one. But as a consequence, every close decision is tainted by doubt about the legitimacy of that appointment. Worse, a second Justice’s appointment and confirmation was rushed through in the waning days of the Republican president’s term.
It’s conceivable that these two appointments would not have generated such widespread disapproval if the nominally “conservative” Justices had adhered to conservative principles: accepting long-standing precedents as settled law, and rejecting judicial activism. But the conservative majority has done neither. Recognizing the advantage of their numbers, they have embarked on a campaign to fundamentally alter the status quo. Acting without broad public support, their decisions have led to a rapidly declining respect for the preeminent institution of our independent judiciary.
This deterioration of Congressional respect for the Supreme Court could be rectified by the Senate enacting its own code of ethics for the confirmation process.
Such a code should include clearly defined time frames for conducting confirmation hearings and votes. Anticipating the possibility of allegations of past misconduct by a nominee, the code should also establish a defined investigative procedure to ensure a fair but prompt evaluation of the charges. Doubtless other ideas for improving the confirmation process would arise once the need for such a code is acknowledged.
Some reformers have advocated structural changes to the Supreme Court.
These would include such things as setting strict limits to the length of each Justice’s term of service, and/or increasing the number of Justices. While attractive for securing short-term gains, such structural changes should not be embraced without careful consideration of long-term consequences.
For example, enlarging the size of the Court under a Democratic presidency may seem to be a fitting response to the Republican denial of an appointment in 2016. But such a blatantly partisan move would further undermine the judiciary’s independence. Similarly, imposing term limits may provide a degree of predictability to the Court’s make-up. But the prospect of a post-judicial career would introduce more incentives to serve interests other than constitutionality.
Presidential Commission on the Supreme Court of the United States.
Shortly after taking office, President Biden issued Executive Order #14023. The order established a commission whose purpose was to provide a comprehensive account of the current debate over the “role and operation of the Supreme Court in our constitutional system,” and an “analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”
The commission’s report was issued in December, 2021, and it is remarkably thorough. In addition to a brief history of the Court and various reform efforts undertaken in the past, the report includes extensive discussion of four specific reform topics:
Membership and Size of the Court
Term Limits
Jurisdiction, Deference and Legislative Override Proposals
Court Procedures and Practices
Anyone seriously advocating for reform of the Supreme Court should read this important study which can be downloaded here:
It’s also available at this website: https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf
In addition to the report, written testimony submitted to the Commission by prominent organizations such as the ACLU and the NAACP, as well as several distinguished law professors can be found here: https://www.whitehouse.gov/pcscotus/public-comments/
We can’t allow the corruption of a few individuals on the Supreme Court to undermine the legitimacy of the institution itself.
The growing authoritarian movement in our country, by its very nature, regards the independent judiciary as an impediment to its rise. Led by Donald Trump and his MAGA extremists, this movement targets judges, prosecutors, juries, even clerks and bailiffs in its attempt to delegitimize the courts.
In our zeal to counter the corruption currently so evident at the Supreme Court, we must avoid contributing to this attack on its institutional legitimacy. The goal should not be to empower progressives, but to restore fairness and integrity.
There is every reason to expect that the November 2024 election will result in devastating losses for the Republican Party. Given the bitter divisions that have been growing within the GOP for the last several years, Liz Cheney, among others, predicts that the Republican Party is unlikely to survive beyond 2025. What emerges from the ruins will be a poorly organized and fractured opposition.
Under the banner of “reform”, Democrats will be tempted to use their new-found dominance to right perceived wrongs, both in Congress and at the Supreme Court. It will be important to recognize that, while far from perfect, these institutions have served our democracy well for over 200 years.
When the time comes, we should proceed with caution and restraint.
This is a network of ordinary citizens. In a democracy, we exercise our power by raising our voices. To be silent is to be powerless.
I watched January 6 in absolute horror. I agree with Liz Cheney on almost nothing, but one thing. How can insurrection be incited by a president, but that president not be held to account before the next election? For me, it's the timeframe, not the election that is my concern. The former president should be held to account for his behavior. It's the accountability, or lack thereof, that matters to me. The more time that passes without accountability, the more emboldened a perpetrator becomes.
Your arguments are food for thought. Our institutions do need protection, but that doesn't mean that they don't need reform. The Supreme Court does need to be accountable on some level.
This is a remarkably positive and optimistic appraisal Jerry. That it is well thought out and rationally argued makes it also very encouraging. Thanks for taking the time; we must now hope that your arguments are accurately predictive.