Home / General / Hyperpartisanship and nihilism: how the Republicans on the Supreme Court learned to love being Donald Trump’s personal valet

Hyperpartisanship and nihilism: how the Republicans on the Supreme Court learned to love being Donald Trump’s personal valet


Two phrases from the majority is Trump and His Executive Council v. American Democracy are more telling than they mean to be, First, from the conclusion of Roberts’s opinion for the Court:

The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

This isn’t so much a “tell” as just “showing your cards to the rest of the table” as a description of an opinion so very obviously reverse engineered to protect Donald Trump specifically. And leaving aside the fact that we all know the Court would treat alleged criminality from a Democratic president differently, it says something about how deeply ingrained authoritarianism is within the Republicans on the Court that we’re supposed to think “but we’re making all presidents kings” is reassuring.

The majority opinion also makes a big deal out of the fact that no president has been criminally prosecuted before. Of course, this is devastating to the majority’s contention that presidents are under constant danger from rogue prosecutors. something that was somehow never a problem until one party nominated a lifelong crook who continued to do crimes in office. Thomas’s concurrence tries to square the circle:

No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes.

If they can’t convince themselves that Donald Trump isn’t a crook, they can pretend to believe that everybody does it and Donald Trump is just our crook being unfairly singled out. It’s an excellent summary of the total degeneracy of “respectable” Republican elites.

Adam Serwer is superb on this:

Near the top of their sweeping, lawless opinion in Trump v. United States, Donald Trump’s defenders on the Supreme Court repeat one of the most basic principles of American constitutional government: “The president is not above the law.” They then proceed to obliterate it.

Although the pro-Trump justices attempt to nest the breadth of their opinion in legalese, their finding that the president cannot be prosecuted for “official acts,” and that much of Trump’s efforts to seize power fall under that rubric, means that the justices have essentially legalized a losing president refusing to step down, as Trump tried to do after the 2020 election.

The Court’s opinion presents an absurd paradox that defeats the purpose of a constitutional democracy governed by the rule of law. It has little basis in the Constitution or in the words of the Founders. It is the outcome that most benefits the Court’s preferred presidential candidate, while allowing the justices to live with themselves for defacing beyond recognition the Constitution and the concept of democratic self-determination.

In her dissent, Justice Sonia Sotomayor puts it plainly. Regarding the question of “whether a former President enjoys immunity from federal criminal prosecution,” Sotomayor writes, “The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” That is the long and the short of it.


The Court writes that presidents cannot be prosecuted for “use” of their official powers, but what it actually means is they cannot be prosecuted for the flagrant abuse of them. That renders the plain disclaimer on which the opinion rests—that the president is not above the law—a lie. More significant, this opinion depends on an implicit belief that the only person who would act so brazenly is Trump, and that because the majority of the justices on the Court support Trump and want him to be president, he must be shielded from prosecution. In this backhanded manner, Trump’s justices acknowledge that he poses a unique threat to constitutional government, one they just happen to support because he is their guy. These are not justices; these are Trump cronies. This is not legal reasoning; this is vandalism.


Such efforts are inconsistent with the idea that the justices are impartial. By now it should be obvious that this is a fiction. The current composition of the Court is the result of decades of work by right-wing activists seeking a permanent conservative political ascendancy, and the behavior of the majority consistently reflects that objective. Like other right-wing institutions, it has become thoroughly corrupted by its obeisance to the Republican Party leader, the principle to which all others are now subordinate. This is not the Republican Party Court; it is the Trump Court.

Martha-Ann Alito should lend some of her MAGA flags to the Roberts household — it would be more honest if they were on full public display.

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