Supreme Court’s GOP bias hangs over Trump’s case
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.