E.J. Dionne Jr. In The Washington Post: “A Crisis Moment” – SCOTUS’s Republican Bias Hangs Over Trump Immunity Case
As members of the Supreme Court’s “6-3 conservative majority ponder how and when they will rule on Donald Trump’s absolute immunity claim, they should understand how much they have already done to paint themselves as instruments of the Republican Party and the political right. They have created a crisis moment,” columnist E.J. Dionne Jr. writes in an op-ed published in The Washington Post.A pattern of overreach by the Court, Dionne writes, “has created the cloud of suspicion that hangs over its deliberations on the former President’s absolute immunity claim.”
Trump’s immunity claim, Dionne continues, “is both absurd and dangerous to a free republic. Yet in [the Court’s recent] oral arguments, most of the conservative justices were more eager to worry about entirely hypothetical problems future Presidents might confront than to deal with the facts before them involving a President who plainly tried to overturn a legitimate election.”
Dionne discusses the Court’s historical and recent bias and a way for the Court “to prove its willingness to suspend partisanship at least some of the time.”
Read Dionne’s Washington Post column online or below.
The Washington Post | 5/5/2024
The Supreme Court’s Republican bias hangs over the Trump immunity case
The conservative justices must navigate a crisis moment of their own making.
By: E.J. Dionne Jr., Columnist
It is naive and ahistorical to pretend that the U.S. Supreme Court floats above politics as a quasi-sacred institution. The court has always been political, particularly when it comes to preserving its own influence.
One of its earliest and most celebrated decisions, Marbury v. Madison in 1803, can fairly be seen as a power grab for the ages: Chief Justice John Marshall established that the court had the ability to strike down laws, declaring that this unelected body can override the wishes of the branches of government chosen by the people.
But precisely because the court has arrogated itself so much authority, it is always in danger of squandering the legitimacy of its claims, especially when it acts with exceptional arrogance or in a blatantly partisan way.
As members of its 6-3 conservative majority ponder how and when they will rule on Donald Trump’s absolute immunity claim, they should understand how much they have already done to paint themselves as instruments of the Republican Party and the political right. They have created a crisis moment.
You can see what such a crisis looks like by examining one of the court’s worst decisions, Dred Scott v. Sandford. It was politics all the way down: The court colluded with two Democratic presidents, James Buchanan and Franklin Pierce, in a blatant effort to stop a rising Republican Party and a popular movement seeking to end the spread of slavery.
By declaring in 1857 that people of African descent could never be citizens and that Congress could not restrict slavery in the territories, the court persuaded millions of northerners that the “slave power” — the rallying cry against the plantation South’s elite — dominated the government. The north struck back three years later by electing Abraham Lincoln president. We know what followed.
Despite the popularity of the recent movie “Civil War,” we are not on the verge of outright military conflict. But the conservative justices seem hellbent on taking a side in the searing partisan battle that is dividing the country into closely matched halves, at a cost to its own legitimacy and the nation’s confidence in the rule of law.
Consider its decisions undercutting the regulation of large political contributions, gutting the Voting Rights Act and slow-walking reapportionment cases aimed at protecting Black political representation. Together, these decisions empower the wealthiest and most privileged people in the country and undercut the electoral clout of long-marginalized citizens. There’s a clear direction here.
Add to this the invention of the “major questions doctrine,” through which the court has seized the power to strike down executive agency actions of “vast economic and political significance” unless Congress clearly authorized them. It’s a move that allows the court’s conservatives to throw out any regulations and executive actions by Democratic administrations that they don’t like.
When the court invalidated President Biden’s student loan debt relief program last year, Justice Elena Kagan rightly complained that in “every respect, the Court today exceeds its proper, limited role in our Nation’s governance,” based on the “made-up major questions doctrine.”
Responding to Kagan, Chief Justice John G. Roberts Jr. wrote that it “has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.” No, what’s disturbing is the court itself going beyond the proper role of the judiciary.
Through such overreach, the court has created the cloud of suspicion that hangs over its deliberations on the former president’s absolute immunity claim.
Trump’s contention is both absurd and dangerous to a free republic. Yet in last week’s oral arguments, most of the conservative justices were more eager to worry about entirely hypothetical problems future presidents might confront than to deal with the facts before them involving a president who plainly tried to overturn a legitimate election.
If the court delays its ruling until late June or forces the trial court to litigate new issues it might raise, it knows it will be delaying Trump’s most important trial until after this year’s election. The court already fed skepticism about its motives in December when it denied special counsel Jack Smith’s request for the court to bypass the appeals process and fast-track a hearing on matters Smith knew the justices would want to address.
There is a way for the court to prove its willingness to suspend partisanship at least some of the time. Instead of wasting precious time to rule on issues not directly raised by this case, it could take up Justice Ketanji Brown Jackson’s suggestion that it confine itself to answering the question Trump raised: “whether all official acts [by a president] get immunity.” She proposed that it wait for a case that “actually presents” the issues that preoccupy the conservatives.
One of her fellow justices has made an excellent argument for this approach. “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Roberts wrote in a 2022 opinion. In the Trump case, he would do a lot for the court’s reputation by following his own advice and bringing another conservative with him.
