On 7/1/24, in a dramatic display of its power, The Supreme Court [SCOTUS] released its 6-3 decision in Trump v. United States, redefining the concept and breadth of presidential immunity for criminal acts by a sitting president.
It contemplates the quick destruction of the democracy which was so painfully achieved in 1776. In doing so, it makes the strongest argument of its term: we, SCOTUS, need to be reformed.
The President is NOT King; and the SCOTUS justices are NOT Gods!
In his core justification for presidential immunity, Chief Justice John Roberts disingenuously conflates “separation of powers” with “presidential immunity.” The first phrase is simply a matter of semantics and terminology. The second phrase injects a brand-new concept, and principle, into the Constitution.
Similarly, it doesn’t take a lawyer to see Roberts' allusion to “fear mongering on the basis of extreme hypotheticals” of the Dissenters, as upside-down logic. “Shooting someone in broad daylight” and “immunity for ordering the Seals to murder a political opponent” are specific acts articulated (not imagined) by former President Trump (who will be perhaps the first president protected by this ruling) and his lawyers. To the contrary, it is Roberts' pious fears of “presidents cannibalizing past presidents” which are hypothetical and imaginary – given that it has not occurred in some 250 years, without this ruling. In fact, President Biden has taken bold and sweeping executive actions during his administration; in spite of his predecessor president being prosecuted for, and in one case convicted, of criminal acts.
As New York Times columnist David French wrote July 7, this granted broad immunity to presidents for their actions in office https://www.nytimes.com/2024/07/07/opinion/supreme-court-trump-immunity.html ,"The court’s policy choices are rooted in real concerns, but they’re not textual, they should not be constitutional, and they contradict the wiser judgment of the founders in key ways.”
As the American Constitution Society observed, "Today, the conservative-captured Roberts Court made law what former President Nixon once infamously asserted--that when a President commits what would otherwise be a criminal act, it is not illegal. It was an assertion that was met at the time with horror and disgust and today's decision is worthy of the same response. It defies reason that our courts cannot hold accountable Presidents, with the vast power that they wield, for their criminal abuse of that power."
Laurence Tribe, Professor Emeritus at the Harvard Law School, commented “For all practical purposes, this is absolute immunity. It's dangerous “. By a vote of 5 to 4, a Supreme majority(minus Justice Barrett) even claimed evidence could not be used of the way the president's core power was abused (Tribe noted that would have included the Watergate tapes that led to President Nixon resigning before his conviction could take place).
Supreme Court Justice Ketanji Brown Jackson called the decision "a five-alarm fire for self-government
under a democracy."
The Founders knew how a king with all power could abuse it. With the Court's twisted interpretation of the Constitution, a president could take away checks and balances, by instructing the Attorney General to selectively investigate (black list) political opponents on compliance with election laws.
He could take away religious freedom by favoring a particular religion within government departments.
He could become the Orwellian Big Brother by defining "misinformation" for the Press, effectively taking away freedom of speech and refusing to allow the media to interview him.
Other freedoms, like the 2nd Amendment's "right to bear arms" could be regulated according to the President’s whims.
There were many other questionable decisions by the Roberts Court this year:
One was 6-3 to end a federal ban, placed by the Trump Administration, on bump stocks that turn semi-automatic weapons effectively into machine guns, using a technical argument about how the two load differently, even though the bump stock enables the semi-automatic to fire at about the same rate.
Arguably the most potentially radical decision among its many controversial ones was the overturning of the 40-year old "Chevron decision" that underpinned 70 previous Supreme Court rulings and 17,000 rulings in lower courts about the power of federal regulatory agencies https://www.politico.com/news/2024/07/04/2024-supreme-court-decisions-00166571. By reducing the power of the executive branch's agencies and transferring this to Congress and the regular court system, the Supreme majority fulfilled a longstanding goal of big business to have as little regulation as possible.
As Charlie Savage of the New York Times noted, "this struck down the ability of agencies to enforce their rules via in-house tribunals before technical-expert administrative judges and instead ruled agencies must sue accused malefactors in federal courts before juries." By gutting the government's ability to interpret vague laws and refine their application quickly, this could impede the government from acting decisively and creatively in emergencies and leave final decisions for months and years in the courts. This is likely to imperil everything from the ability to prosecute companies that engage in consumer fraud and make sure food, water, drugs, and cars are safe.
Since 2021, the U.S. Supreme Court has used it's 6-to-3 conservative majority to rule to reverse long-established precedents (Roe vs Wade) and even reverse traditional conservative "originalism" (Trump v. United States).
Let’s work towards electing In November 2024 Congressional representatives and a President who will reform the Supreme Court to stop these forms of abuses.
Are There Realistic Ways to Reform the Supreme Court?
In addition to electing a centrist President, the most fundamental way to pull the Supreme Court back towards the political center, in line with its historic role is to increase the Democrats' current very slight control over the Senate; and to gain control of the House. Many seats will be closely contested. That means the voters, donors, and activists can play a vital role in who will join the Court, as well as implement some of the key reforms discussed below.
The Presidential Commission on the Supreme Court of the United States was formed in April 2021 and submitted its final report July 12, 2022: https://www.whitehouse.gov/pcscotus/final-report/
It presented a range of proposals, including transparency measures on which there was agreement in the Commission that the current transparency and ethics guidelines of the Court, has done little to curb the corruption of some of the justices. However, there was disagreement about which other reforms should be implemented. Among the proposals:
Expand the Court. This reform is not likely to be attacked as nonconstitutional. Congressional Democrats have proposed that the number of seats should increase from nine to 13. The Constitution does not specify a number and there have been as few as six and as many as 10: https://www.historynet.com/how-many-supreme-court-justices/Meagan Hatcher-Mays of the nonpartisan activist group “Indivisible” favors this. However, Democrats must have a sufficient majority in both Senate and House, to effect this change.
Set term limits for justices. Supreme justices have long been appointed for life and the average serves 28 years, most retire early, and some die in office. But the Constitution does not specify how long the term should be. Yet a congressional requirement to set a specific limit, is likely to be challenged, as requiring a constitutional amendment. Reform proposals generally argue that a term should be 9 to 18 years, to enable various presidents to propose candidates, provide checks and balances, and encourage fresh thinking about the needs of society:https://uclawreview.org/2020/10/13/should-supreme-court-justices-have-term-limits/
Put teeth into impeachment of justices. The House of Representatives just needs a majority vote to send impeachment articles to the Senate, but conviction have rarely happened because it requires a two-thirds majority in the Senate. Reform could require just 55% of senators to convict. Unfortunately, per Article I, Section 3, a constitutional amendment would be required.
Regulate Ethical Conduct. According to the Harvard Law Review https://harvardlawreview.org/forum/vol-134/the-future-of-supreme-court-reform/, Congress has some authority to regulate the Court's ethical conduct and a procedural proposal that would expedite review of some of its interpretations of federal law might allow it to bypass the committee process with bipartisan support.
Most members of the public are so busy with their careers, families, and personal lives that they don't pay close attention to politics, even when they should know that local, state, and national issues are in their vital interest. That's why polls often change dramatically once an election is close.
The Supreme Court has historically not been the active concern of even aware and dedicated voters. However, its overturning of the long-standing 50-year precedent in Roe v. Wade in June 2022 has changed that, effectively dividing the U.S. into states with access to a variety of ways to terminate an unwanted pregnancy; up to a point that make this illegal even before many women know they are pregnant.Together with the 7/1/24 SCOTUS ruling granting presidents immunity for criminal acts; we have galvanizing proof ofhow radical the current Supreme Court has become. Everyone has to realize that the quickest and most effective SCOTUS reform is increasing the number of justices – and it can only come via appropriate majorities being elected in the November elections.
Author:
Dr. Sean Subas has more than four decades of experience as a senior executive, consultant, and entrepreneur with a wide variety of organizations. He received an M.S. in physics and his Ph.D. in Artificial Intelligence (AI) - electrical engineering from Purdue University, where he was a Fulbright Scholar; before earning his M.B.A. at the University of California at Berkeley in 1982. He has authored numerous articles in academic and lay publications; and received national awards for innovation, business development, and team work.
Contributions by:
Scott S. Smith is a freelance business journalist and small business and nonprofit marketing consultant. He has written two books: Extraordinary People: Real Life Lessons on What It Takes to Achieve Success and God Reconsidered: Searching for Truth in the Battle Between Atheism and Religion.