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Without ethical or legal restraints

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A few notes on today’s SCOTUS decision:

(1) John Roberts’s opinion legalizes, in every practical sense, military dictatorship. The opinion states that presidents have absolute immunity for all official acts committed in the course of their core constitutional functions, and there is no more core constitutional presidential function than Commander and Chief of the armed forces. (It’s true that officers are not supposed to follow illegal orders. It’s also true that the CIC has absolute authority to replace recalcitrant officers with more pliant ones). It’s even right there in the text of the Constitution, unlike the doctrine of presidential immunity from criminal prosecution, which as Sotomayor points out, has no basis in text, history, precedent, or really anything other than the need to create a bespoke get out of jail free card for Donald Trump. (A grimly amusing note: Sotomayor’s cite for the proposition that courts shouldn’t invent judicial doctrines with no textual, historical, or precedential basis is Sammy the Papal Bull Alito’s opinion in Dobbs).

This is a precise inversion of the logic of the 1776 revolution, and if anything could justify another one, it’s the pseudo-royalist caudillismo for gringos that Donald Trump’s Republican party and his judicial bottom bitches are now busily creating before our eyes.

(2) Lost in the midst of this nightmare is that this case involved flagrant crimes that at least one of the spouses of of the justices who voted in the majority actively participated in, while another spouse advertised her support for those crimes contemporaneously with their commission. A grosser violation of judicial ethics is difficult to imagine, unless you happen to be Clarence Thomas’s accountant.

(3) All the fulminations about how Biden should now do this and that illegal act ignore the fact that fascists have a structural advantage over liberal democrats, which is that having no respect for the law while your opponent does is like playing politics and life on the easy setting, sort of like being a white man in America.

(4) There’s a way to solve the conundrum raised by (3), but I don’t think our side has the stomach for it, at least not yet.

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