How to Make the Immunity Decision the Undoing of the Roberts Court

It Begins with a Blue Wave But Must be Followed by Bold Moves for Court Reform

It is not impossible to imagine a scenario in which, shortly after he loses the election in November, Donald Trump launches a social media barrage claiming that the election was rigged against him…by the Supreme Court.  Recently released from jail, Steve Bannon will spin conspiracy theories suggesting that the court is just part of the Deep State. And all because election day exit polls will reveal that the primary reasons for the Blue Wave at the polls were that voters feared what a President Trump with sweeping immunity might do to end our democracy and that they were still furious over the court’s decision to end Roe v. Wade.

It will be entertaining to watch the contortions they go through to somehow blame the court’s extremism on Jedi mind tricks played on its conservative members by Justices Sotomayor, Kagan and Jackson or on an elaborate trap that was somehow funded by George Soros—as all good conspiracies inevitably are.

None of this is to minimize the fact that this week’s 6-3 decision by the Supreme Court to grant presidents with what Justice Sotomayor rightly noted were powers akin to that of a King is a Constitutional catastrophe. It is an abomination that runs directly contrary to the very reasons this country was established almost two hundred and fifty years ago. It is a stunning act of judicial arrogance and at the same time cheap political hackery by the court’s corrupt conservative majority.

A New Rallying Cry

The conclusion of Justice Sotomayor’s opinion in the case will no dobut, regardless of the outcome of the election, resonate through history: “With fear for our democracy, I dissent.”

But it is fair to ask, can that the spirit of that dissent inspire a movement that can ensure Trump never again sees the inside of the Oval Office and that perhaps, contains the seeds of the undoing of the court’s extremist, activist, contra-constitutionalist, monarchist majority?  Will it become a rallying cry that motivates a nation to rise up and save a system for which so many have fought and died and sacrificed across the centuries?

It is clear that President Joe Biden both recognized the threat and saw it as an opportunity to mobilize voters much as opposition to the Dobbs decision has done for the past two years. In remarks at the White House that were amplified by ads and social media posts, Biden said, that he too dissented from the court’s decision and then turned his remarks into something more pointedly political. He framed it starkly, “The American people must decide if they want to entrust…the presidency to Donald Trump now knowing that he’ll be more emboldened to do whatever he pleases.” 

Biden and his advisors, as sincerely as they surely saw the threats manifest in the court’s decision, also undoubtedly saw it as an opportunity to attempt to change the subject from the debate about Biden’s fitness that broke out in the wake of his disastrous debate performance last Thursday night. There were, he could fairly argue, bigger issues to consider. The peril posed by a Trump presidency grew many times over thanks to carte blanche for criming and to implement his plans to target his enemies, gut our institutions and lay the foundations for a MAGA autocracy offered to Trump by the court’s decision.

Not the Distraction the White House Hoped For

In the immediate wake of the decision, it should be noted, Biden’s hopes in this regard may not have been realized. The debate around his fitness may even have intensified as members of the Democratic Party recognized just how vital it would be to run an energetic and flawless campaign against Trump if we were to save our system of government and protect the ideas and ideals on which the nation was founded.

On Tuesday, in fact, a wave of prominent Democrats began to entertain the possibility of Biden’s stepping down publicly on Tuesday.  Politico detailed the shift highlighting the public statements of, among others, Rep. Lloyd Doggett of Texas urging Biden to withdraw, Rep. Jim Clyburn of South Carolina’s statement that he would back VP Kamala Harris if Biden were to step aside, former Rep. Tim Ryan’s statement that Biden should give way to Harris and former Speaker Nancy Pelosi saying she had “heard ‘mixed’ opinions about whether Biden is fully up for the campaign.” Pelosi also defended the questioning about Biden (and Trump, for that matter) as “completely legitimate.”

Peter Hamby, writing for Puck’s “The Best and the Brightest” newsletter wrote of polling data circulating among Democrats that shows Biden losing ground post-debate in battleground states. He writes, “Making matters worse for the White House, other Democrats who might theoretically replace him—including Kamala Harris and Gretchen Whitmer—are now outperforming the president across the 2024 battlefield.”

Whatever the final disposition of the heated internal party discussions about Biden, the growing intensity of concerns is dovetails with an absolute consensus that it is critical that Democrats prevail in December—not for political reasons but for the sake of the entire American experiment. Ironically, the experience of the elections held in the years since the Dobbs decision was handed down by SCOTUS in 2022, has been that such decisions that run adverse to the views of a broad majority of Americans can and do tip elections in the favor of Democrats. They do so by making the stakes in the election absolutely clear thereby motivating voters who might otherwise be apathetic or even ambivalent to turn out and vote.

Turn out will be the key in November. And now, there are not one but multiple massive reasons provided by the court for voters to get out and stop the Trump MAGA threat in the one place it can still be contained—at the ballot box.

Dems Must Be Much Bolder About Court Reform

Furthermore, the need to initiate and pass necessary court reforms like term limits and ethics rules and to confirm judges who will impede the judicial activist right demands not just the victory of the Democratic candidates running for president and vice president but also of Democratic majorities in the Senate and the House of Representatives. To undo the dangers so clearly manifest by Trump and the Roberts court, will require a success up and down the ballot. The election cannot be about any single candidate but must be about a movement that mobilizes tens of millions of voters coast-to-coast to ensure that this November’s is not the final free and fair election in American history.

It should be added, that however big the hurdle of winning might seem, bold action is required. In my view that action extends beyond the reforms cited above. It is time that serious consideration be given to changing the composition and size of the court. President Biden shied away from this early in his term. But circumstances were different then. The other side has gotten where they are by employing scorched earth tactics to get their judges in place and to block Democratic nominees. Democrats have been far too passive in response. Whatever can legally be done to restore balance and respect for the Constitution to our courts, must be done. We must recognize that Trump’s January 6^th coup attempt was not the only right wing effort to seize a branch of our government. They actually succeeded in commandeering our highest court.

Now voters can see clearly the profound threats to our freedoms that entails. Democrats must do whatever they can to undo those threats.  They must also then work to fortify our institutions so they reflect the intent of the authors of the Constitution and of the majority of the American people today.

Getting from here to there is a tall order. But there is good reason to believe that the outrages of a rogue Supreme Court and of Trump and the prospect of how they may collaborate if Trump is returned to office can be enough to produce a mandate for change in the Fall and then a reversal of terrible decisions that have in recent years so gravely damaged this country.