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‘The Dred Scott of Our Time’
Samuel Corum/Getty Images
Donald Trump walking onstage to give the keynote address at the Faith & Freedom Coalition’s Road to Majority Policy Conference, Washington, D.C., June 22, 2024
The majority opinion in Trump v. United States, the most sweeping judicial reconstruction of the American presidency in history, secures the monumental historic disgrace of the John Roberts Court. Since last winter, the Supreme Court has intervened directly in the 2024 presidential campaign by effectively shielding Donald Trump from being tried on major federal charges before the November election. No previous Supreme Court has protected a political candidate in this way. Far more ominously, in March the Court in Trump v. Anderson openly nullified the section of the Fourteenth Amendment that bars insurrectionists from holding federal or state office, discarding basic lessons about threats to American democracy dating back to the Civil War. Now, in Trump v. United States, handed down on the last day of its 2023–2024 term, the Court has seized the opportunity to invent, with no textual basis, “at least presumptive” and quite possibly “absolute” presidential criminal immunity for official acts, a decision so broad that it essentially places the presidency above the law.
By throwing Trump’s federal indictments into doubt, Trump v. United Statesall but completes the former president’s immunization from legal accountability for the events of January 6, 2021, at least until after the election. But that is only the decision’s narrowest ambit. Its vague distinction between official and unofficial presidential acts gives any president carte blanche to commit crimes up to and including assassination and treason with virtual impunity from criminal prosecution, as long as he can justify those crimes as part of his “official” duties. In effect it invests the presidency with quasi-monarchial powers, repudiating the foundational principle of the rule of law. Trump and his supporters have pledged to wield unfettered executive power and unleash a scorched-earth assault on the “deep state,” which is to say the existing constitutional and institutional order, if he is reelected. In the current crisis, that threat’s most powerful ally is the Supreme Court of the United States.
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