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Trump and the Lawless Supreme Court

By Joel Levin

We have just celebrated the 4th of July, with its parades, speeches, and fireworks announcing our pride, even conceit, that America’s Independence Day is the greatest of all Independence Days, as America is the greatest of all nations, offering its citizens the greatest of all governments. The complexities of that claim – and putting aside its apparent inadequacies, inconsistencies, incoherence, and disappointments – necessarily include a shortlist of what is critical to a view of America’s ascendant greatness. Democracy, prosperity, opportunity, and liberty are on the shortlist, and so is the rule of law. 

The view about law at its strongest suggests that America has the world’s most outstanding legal system and, at its minimum, that the rule of law protects America well. While virtually nobody seems to be in any position to evaluate whether the strong claim is valid – comparing America’s legal system with, say, that of Switzerland, Ireland, the UK, Japan, or New Zealand, to see if America’s legal system is superior always, at times or in any particular way to that of others – the minimum condition of living under a generous (what philosophers call a ‘thick’ concept) rule of law seems more commonplace and defensible. I have discussed in earlier blogs what we might mean by ‘the rule of law,’ a controversial and, at times, incoherent matter. For example, virtually all authoritarian dictatorships and theocracies have laws and rules of law, even if they are not what we consider to be much like our rules of law. Following the law, having the law, or referring matters to the courts might allow the technical description ‘the rule of law,’ but they alone hardly qualify as sufficient for what we want in a society.

For that, we assume the existence of a more robust, more just, and more ethical notion – one rooted in fairness – when we apply the concept to ourselves. That said, our idea of the rule of law took yet another hit from the Supreme Court, a court seemingly intent on shrinking our notion of the rule of law, or at least justice under the law, decision by decision, term by term, legal right by legal right. To see this, we should put forward three bases of that notion. They might be thought merely procedural but are instead of the very essence of the rule of law. They are what philosophers call a priori’, before any other rules, procedures, or legal concepts. These essential, a priori principles make possible the comfort we take in a society governed by the rule of law.

Let us briefly examine the treatment in the case earlier this month from the Supreme Court, that is, in the case of Trump v. United States, 603 U.S. ____ (2024). With that decision in mind, consider the three a priori principles necessary to begin constructing anything resembling the rule of law.

First and foremost is the principle that no one should be the judge of their matter. If two individuals are having a dispute or two organizations, parties, or factions are locked in controversy, any decision, at least any justifiable legal decision, deciding the matter should be entirely determined by someone other than the party, the organization, the faction, or their supporters. Moreover, partisan loyalties, prior alliances, and friendships from the past all need to be set aside.

We might look at a few lines as to how this works from one of the 20th century two finest jurists, Learned Hand, in his eulogy of the century’s other finest jurist, Benjamin Cardozo. “One ingredient I think I know: the wise man is the detached man. By that, I mean more than detached from his grosser interests – his advancement and gain. Many of us can be that – I dare to believe that most judges can be and are. I am thinking of something more subtly interfused. Our convictions, our outlook, the whole make-up of our thinking, which we cannot help bring to the decision of every question, is the creature of our past, and into our past have been woven all sorts of frustrated ambitions with their envies, and of hopes of preferment with their corruptions, which, long since forgotten, still determine our conclusions. A wise man is exempt from the handicap of such a past; he is a runner stripped for the race; he can weigh the conflicting factors of his problem without always finding himself in one scale or the other. Cardozo was such a man”.

Second, social interests, policy matters, individual rights, political and economic priorities, and claims of justice are always in dispute, always controversial, and constantly interfering with one another. They each require determination based on what counts as more critical or urgent in a particular situation or what fits better with a society’s needs and interests at a given time. In a word, there are no absolutes. 

Consider basic rights. Speech is not always protected when, for instance, the leader of a mob says of some minority member on the horizon, “Kill him.” The right to vote is similarly unprotected if the would-be voter is five years old or an 85-year-old deep into Alzheimer’s. Even if we had a better handle on these competing issues, figuring out the rights and interests of perhaps distant future generations would make the most confident tremble with perplexity. We take these and thousands of similar examples as part of the complexities of our struggle to live together in a large, complex, diverse, changing, sometimes conflicting, and sometimes cooperative society. Absolutes are for the Stalins, Maos, Tamerlanes, Bokassas, and Ayatollahs, but not for an America claiming the rule of law.

Third, every legal rule, legal principle, legal concept, legal authority, legal doctrine, legal right, and legal duty has the idea of what is reasonably implied. Take a simple example from the arcane area of antitrust law. Antitrust law is the body of rules that inhibit monopoly practices. When the seminal law (the Sherman Antitrust Act) was enacted 130 years ago, it threatened monopolies from aluminum, railroads, and steel to oil and sugar. These industries could no longer remain as a single entity or set of related entities able to fix prices, control quality, dictate distribution, and otherwise engage in practices limiting competition. The Sherman Antitrust Act states: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade, or commerce among the several States, or with foreign nations, is at this moment declared to be illegal.” However, notice that every contract is in restraint of trade. If I agree to sell you my car, then I have limited the sale of that car from anyone else, or if I agree to be employed by you, you have limited others from using my services. Both contracts are in restraint of trade. So is every lease, franchise, or enrollment agreement. 

An attentive-to-reason Supreme Court noticed this problem early after the Sherman Antitrust Act (1890) was passed. It adopted a gloss on the language of the Act, holding that reasonable restraints of trade were allowable (as within individual employment or sales contracts). However unreasonable, those more comprehensive contracts were covered by the anti-monopoly law. Addyston Pipe and Steel Co. v. U.S., 175 U.S. 211 (1899). The court took it for granted that every legal rule, large and small, is governed by reasonableness, called “the rule of reason.” In that way, it harkens back to the practice of the ancient legal rule from the Ten Commandments and the Old Testament, which prohibited working on the Sabbath – Exodus 20:8, “The seventh day is the Sabbath unto the Lord your God, and you shall not do any manner of work“- but later allowed glosses based on reasonableness. Exceptions, for example, were made for a physician working to save a life on that day. Reasonableness always counts. 

(One wonders what version of the 10 Commandments will be placed in the public school classrooms of Louisiana and Oklahoma, whether they will include the Talmudic medical exception, and further, whether they will encourage the condemnation of activities – athletic events, school plays, make-up classes, school dances, standardized tests – employing the faculty or staff either, depending on their adherence to original authority, on Saturday or Sunday).

That brings us to the case of Trump v. United States. Essentially, Donald Trump, the former President, was indicted in Washington for a series of actions that constituted crimes if done by any average citizen of the United States, crimes related to his conduct in encouraging election interference and the January 6 assault on the Capitol. The charges in the indictment, if sounding a bit lofty, were rooted in a bare assertion: “Trump and his co-conspirators sought to ‘overturn the legitimate results of the 2020 Presidential election.'” The indictment charges that Trump and the co-conspirators acted to obstruct the January 6 congressional proceeding where electoral votes are counted and certified, and the election’s winner is certified as President. As part of the conspiracy, Trump and his co-conspirators allegedly attempted to leverage the Justice Department’s power and authority to convince states to replace their electors with Trump’s fraudulent slate, met with officials to request an investigation of election fraud in an improper manner, and threatened to replace the acting Attorney General when those requests were denied.

The indictment was routine. It sought criminal charges against someone trying to interfere with or shut down part of the government, alleging that such actions constituted the following crimes:

1. Conspiracy to defraud the United States
2. Conspiracy to obstruct an official proceeding
3. Obstruction of, and attempt to obstruct, an official proceeding
4. Conspiracy against rights

No mention as part of the charges is necessary as to whether the defendant is himself an official in the charge – whether a traffic cop or a President – or an ordinary citizen. Given that, at least until this decision, title, rank, or privilege was not part of the American Constitution, American law, or society. No longer.

Trump v. U.S. upended all of this. It held, in what can only be described as an overblown, meandering, and extremely lengthy decision, one often ignoring the actual indictment, the actual briefs, the actual issues, and the opinions of the courts below, that the President of the United States, and for purposes of the opinion, the former President enjoy certain kinds of immunities that are bestowed on no one else. The court introduced a three-part immunity scheme (‘immunity’ meaning basically that one cannot be held to answer in court for doing certain acts that might seem otherwise to be clear violations of the criminal laws) in an opinion authored by a Chief Justice not traditionally fond of voting rights or privacy rights, but an enthusiast for Presidential rights. The three parts are ‘absolute’ immunity for so-called official acts, presumptive immunity for acts at the border or periphery of what might (or might not) be official responsibilities, and no immunity for clearly unofficial acts. However, according to Chief Justice Roberts, almost everything the President does is official. That is, whenever the President acts in a way that is “not manifestly or palpably beyond [his] authority, he is taking official action.” Not much is left.

This three-part categorization – with its get-out-of-jail-free immunity by grabbing the label ‘official’ and stamping it on everything a President does and says – is not only largely unworkable, unjust, and an invitation to end democracy, it is, as Justice Sotomayor wrote in dissent, “a textual, ahistorical and unjustifiable.” Her examples and their logical extension are telling:

“When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. If the president orders the Navy’s Seal Team 6 to assassinate a political rival, he will be immune. If he organizes a military coup to hold onto power, he will be immune if he takes a bribe in exchange for a pardon. He will be immune. Im une, immune, immune”.

We might add two more, both logical extensions of Sotomayor’s: “Nominates new Supreme Court justices who are his lackeys after murdering recalcitrant sitting justices and threatening the same to reluctant confirming members of the Senate?” Immune. “Sends the military into the state legislatures to ensure they ratify a constitutional amendment allowing Trump to serve for life without the need for reelection or the possibility of removal by the Congressional impeachment and appointing Don Jr., without election, as his successor for life?” Immune.

I want to return from the sloppy reasoning, poor use of evidence, appalling arguments, pernicious implications, and crude and ahistorical scholarship that characterizes the court’s decision – for example, Justice Sotomayor’s clear and cogent analysis of the law and the record demolishes the majority’s opinion on immunity. She concludes that Roberts’ “official-acts immunity has ‘has no firm grounding in constitutional text, history, or precedent’” –  and instead looks at the a priori or fundamental three principles we raised earlier that are violated, if not entirely from the outset, very close to the beginning.

First, the principle of the independent judge is the individual or set of individuals without a stake, without loyalty to an organization or party, without an agenda independent from deciding the facts and the law in a neutral, independent, and modest way. The decision here was 6 to 3. If two of the judges, Justice Thomas and Justice Alito, were to have their votes flipped, the decision would have come out against Trump 5 to 4. Were Thomas and Alito objective, neutral, removed, independent, and without a stake in the fight? Of course not.

The idea of an outside remedy agent, a finder of fact and determiner of law, one assigned to be the weigher of evidence and adjudicator of a conflict, playing a part but sitting apart (to borrow from B. R. Ambedkar): this we consider to be the first rule of the rule of law. Put in a single word, judges can’t be partisan. Being partisan might involve one or both things, either supporting a person, cause, party, or entity or being a priori (at the outset) in favor of or prejudiced or biased for one side or against the other. How do Thomas and Alito fare? Are they partisans?

Justice Thomas, first and worst. Thomas fails neutrality in (at least) two different ways. First, he has received ongoing and valuable gifts from Harlan Crow, a wealthy conservative activist in Republican causes as a donor, a founder of the Club for Growth, a board member of the American Enterprise Institute, and a partisan in favor of a view once characterized as ‘Tea Party’ (he provided the start-up funds for the Tea Party’s Liberty Central, founded by Ginny Thomas, the Justice’s wife) and now is firmly part of the Trumpian GOP. Crow’s gifts to Thomas are large – flights on private jets stays in exclusive resorts, gifts to Thomas’ mother, travel on luxurious yachts; overtly partisan – spending days on end in the company of influential conservative donors and activists; and hidden – never disclosed for years until Pro Publica published exposés revealing the largesse, and forcing Thomas to attempt a limited and tardy retroactive disclosures.

Second, his wife Ginny was a player in the more significant January 6 events that underly the Trump indictment. Among other things (and there are many different things), Justice Thomas’s wife continually urged Mark Meadows, President Trump’s Chief of Staff, to do everything possible to overturn the results of the 2020 election while at the same time emailing legislators of various swing states, including Wisconsin and Arizona, asking them to ignore the results of the election and instead to endorse a fraudulent slate of electors for President. She openly encouraged the Trump rally of January 6 that led to the insurrection at the Capitol. Justice Thomas is a partisan when it comes to deciding the Trump criminal case involving January 6. He ought not to sit, to be recused, on almost any matter involving Trump personally. He is partisan, not neutral, has a stake, and is not an outsider. Any legal process involving him from the outset is tainted, not only by his vote but also by his presence, discussions, influence, and cavalier attitude that bias is irrelevant.

Justice Alito can only look better by the shallow bar Justice Thomas set. Putting aside here the writing and speeches outside the court that serve as political rants, score-settling, insults to certain institutional players at the court, and downright meanness, Alito has made it clear recently where his loyalty lies on the issues involving the January 6 insurrection. One symbol of support for that insurrection is hanging the American flag upside down. Apart from the fact that hanging that flag in that matter technically violates U.S. law about how to display an American flag – something that might concern a person who sits as one of the ultimate interpreters of American law – Alito is indifferent to the partisan display itself of hanging the flag in that manner both regularly and often at his main house. At his summer house, he turned the Pine Tree Flag prominently displayed with the January 6 insurrectionist and a symbol of Christian nationalism. These flags were flown at the same time the Justice decided the January 6 insurrection case of U.S. v. Fischer (2023). He seems to think it no moment because his wife was the one who hung the flags, a piece of evidence that is difficult to assess at best (one might begin by considering marital privilege) but is almost entirely irrelevant. At most, it seems only to reveal that, apparently, every single day, Justice Alito managed not to notice the flags, or at least not to understand their public meaning. Taken at best – that Alito had no control in his house over what his wife did when flying the flags, that he did not realize the meaning of the flags, and that once he understood any of this, it was still a matter of his wife’s liberty to fly any flag in any manner that she wanted, and he had to put up with it, despite being on a court making decisions despite the public and partisan displays on his two houses favored one side – one can have no public confidence in the process. A non-partisan, neutral outsider should decide the case. 

We should notice that, at least for purposes of an indictment against Trump himself, the three justices who owe their entire tenure on the Supreme Court to Trump personally might well violate the bar against the appearance of impropriety by sitting in judgment on him as their relationship with a party is not inherently unbiased, unpartisan and without any loyalties to any side. They owe their careers and seats at the judgment table to Donald Trump, and about him (certainly not his policies), it is questionable whether they ought to sit at that table. If one removes Alito and Thomas, as well as the three Trump appointments of Justices Gorsuch, Kavanagh, and Barrett, the vote would go against Trump 3-1.

The second and third principles are a priori, which is more critical. The social contract is the vaguest of concepts rooted in differing interests, competing values, partisanship, politics, competition, and variations in abilities, knowledge, perceptions, and commitments to any way of doing things or seeing things in the political, economic, and social sphere. The one sure thing is that there are no absolutes and that any doctrine, rule, or precedent needs to allow for texture, exceptions, revisions, and modifications. Where authoritarian dictators see absolutes, those societies founded in the celebrated myth of a social contract succeed, prosper, and yield happiness and freedom to their inhabitants by recognizing the value of partial, qualified, relative, flexible, impure, and imperfect solutions. Starting with an idea of the ‘absolute’ is starting in the wrong place, at least in the wrong place for anything like the rule of law.

Given that, we ought to be puzzled, even alarmed, by the constant use of that concept, repeated in sentence after sentence, paragraph after paragraph, example after example by Chief Justice Roberts’ majority opinion in Trump v. U.S., Roberts gives “absolute immunity from criminal prosecution for actions within his [Trump’s] inclusive and preclusive constitutional authority. He states, “Concerning the President’s exercise of his core constitutional powers, this immunity must be absolute.” He,” writes, “We “must conclude that the President is immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” He” looks back to other cases and reiterates, “In “Fitzgerald, for instance, the court concluded that a former President is entitled to absolute immunity from damages liability for acts within the outer perimeter of his official responsibility.” He” repeatedly writes of and presents absolute immunity, for example, saying that “Tru” p is therefore absolutely immune for prosecution for the alleged conduct involving his discussion with Justice Department officials.”

“Why the absolute? What is added by excluding any exceptions ahead of time, the possibility of revisions, or the employment of discretion potentially useful and even necessary to handle whatever situation might arise? To take just the last example, what if the discussions between the PresPresident’stice Department officials, supposedly immune from prosecution, involve the assassination of political rivals by the FBI, the prosecution of journalists who write against him by U.S. Attorneys, the arrest of all state prosecutors who stand in the way of a federal raid of the homes and offices of the President’s opponents? What if those plans were carried out? Is all of it immune? And even if there ought to be some degree of limited immunity, why should there be ‘absolute’ immunity? Are we back in the time of the absolute autocracy of the King of France, Louis XIV, the Sun King, who supposedly said “L’etate c’est Moi” translated, “I am the state?” Chief Justice Roberts would seem to be quite at home with the Sun King, the autocratic ruler of 17th century France, who had absolute power for 72 years, giving him time to start numerous murderous wars, subjugate and savage numerous colonies, and annihilate the Huguenots at home whose Protestant religion conflicted with his Catholicism. All of this is absolutism. When Chief Justice Roberts set out to do his analysis and included in his toolbox the ability to remove from discussion anything that conflicted with or moderated in favor of an individual, an office, or a doctrine, he abandoned what Americans think they enjoy in the rule of law.

The third principle is to imply reasonableness in every legal argument and holding. We can consider this in (at least) two different ways. First, reasonableness may be an extension of the word’ reason,’ where reasoning and reason are always the appropriate methods of proceeding. The reason, of course, in the argument is contrasted with authority. That is, an argument from reason looks for a solution because of facts, the properties of chemistry, physics, biology, or mathematics, moral precepts, logical deductions, justified inferences, or the plain evidence before our eyes. Such an argument is contrasted with an argument from authority, where we commit to a solution, whether reasonable or not, because of some authority or authoritative source – whether an individual, ideology, religion or a text – because that authority says, “It shall be.” (There is also a deeper context of reason pushed forward by the philosopher Paul Grice, who says that to communicate about performance and understand one another’s meaning, we need to assume “The steps taken by the performers should be reasonable, individually and collectively. “Before one claims irrelevance to this aside, Grice credits the legal philosopher H.L.A. Hart with the insight that all performances, including judging Presidential immunity, must impute reasonableness to be intelligible”).

Law is often a peculiar blend of authority and reason. Constitutions, statutes, and prior decisions all speak with authority. But assembling them, interpreting them, deciding their scope, when and where to follow them, and how to do so requires reason.

We look to understand when, where, and how to follow authority and under what conditions we need to reinterpret the meta or higher rules of following authority to get a reasonable result. The court did precisely this with the Sherman Antitrust Act when it read reasonableness into the contracts it allowed and those it prohibited. It does this routinely in other matters.

Take, for example, the 8th Amendment ban on “cruel and unusual punishment,” where it has eliminated the language of “unusual “as fairly useless and interpreted “cruelty” not by the standards of the framers’ intent, original intent, the practices at the time of enactment in the late 18th century, originalism, textualism or any other argument from textual authority – or we would still be executing children, imposing capital punishment on horse thieves, putting people in the stocks, dunking women for witchcraft, and whipping sailors for disobedience. The Supreme Court in Wilkerson v. Utah (1878) used ‘humanity’ as a proxy for reasonable, implying that the moral arguments were the arguments of reason, making older but once legitimate (not unusual and not contemporaneously considered cruel punishments now thought cruel to us. Specifically, the court held that:

“Such is the general statement of that commentator [Blackstone, the definitive authority on law at the time of the original constitutional amendments’ enactment ], but he admits that in very atrocious crimes, other circumstances of terror, pain, or disgrace were sometimes superadded. Cases mentioned by the author are where the prisoner was drawn or dragged to the place of execution in treason or where he was embowered alive, beheaded, and quartered in high treason. Mention is also made of public dissection in murder and burning alive in treason committed by a female. History confirms the truth of these atrocities”.

, read into the authority carried by the text is the appropriate gloss – reasonable restraints on trade when discussing competition, humane treatment when talking about punishment – the way we would want to view the law as serving us rather than a religion or ideology or charismatic leader or movement we ought to serve.

Did Roberts do that? Did he say that reason is the filter for all judgment? He did nothing of the sort, so focused was he on some originalist division of separation of power scheme that the mechanics of the scheme, rather than the dictates of what is reasonable, shape the opinion. Here, one might consider Justice Barrett’s opinion closely, not the part where she occurs, but the part where she dissents. She imagines a potential bribery prosecution against a former President. The federal bribery statute forbids any public official to seek or accept a thing of value “for or because of any official act.” That means even President Trump could be indicted for bribery should there be evidence that he committed that crime. However, any discussion of the official act, that is, what the President gave up – a Presidential pardon, an ambassadorship, or locating a federal project in some particular area – in exchange for some consideration – money or campaign contributions or, as with Justice Thomas, six-figure luxury vacations – would be barred from evidence in the trial, per the opinion of Roberts. Such official acts may not be discussed, as immunity extends even to their mention. However, as Justice Barrett says: “Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about the quid and the quo, even if standing alone, could not be a basis for the President’s criminal liability”.

Of course, she is right, and reasonableness has nothing to do with the opinion of the Chief Justice, who mindlessly, if clumsily (they typically go hand in hand), looked only to follow written authority. He is oblivious to the claims of reason, the claims earlier of concern by Justice Sotomayor that the President gets a pass if he orders Seal Team 6 to murder his opponents, and the fears of Justice Barrett that he would get a pass if he sells the spoils office to the highest bidder.

The concern is only partially theoretical. A federal jury convicted Governor Rod Blagojevich of attempting to sell the spoils of office when he was the governor of Illinois, trying to sell the newly vacant Senate seat that was within his authority to name after then-Senator Obama won the Presidency. Not only did Trump pardon him, but he said, “That was a tremendously powerful, ridiculous sentence.” The key term here is “ridiculous”.

The decision of the Supreme Court in Trump v. U.S. marks a sad day in American history, a further decline in the integrity of the Supreme Court, an invitation to dictatorship and abuse by future chief executives, the degradation of the rule of law, and another chink in the armor once protecting American liberty and safety. In an equally disturbing precedent almost 80 years ago, that of Korematsu v. U.S., the Japanese internment case, Justice Robert Jackson, the future U.S. Chief Prosecutor at the Nuremberg Trials, worried in dissent that the precedent of undue deference to the executive branch now “lies about like a loaded weapon ready for the hand of any authority that could bring forward a plausible claim of an urgent need.” Chief Justice Roberts eliminated even the need for urgency. Now, the weapon stands ready and loaded for a future President Trump to use against any of his enemies, his perceived enemies, or his unfaithful friends.