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July 1, 2024 - 8:30pm
The Supreme Court regularly finds itself the target of liberals and conservatives alike for being insufficiently “on their side”. Republicans will say that the three Democrat-appointed justices all vote in lockstep. Democrats will argue the same of the six appointed by Republican presidents. And mainstream media reporting of the Court would have you believe that every case breaks down along partisan lines for a 6-3 decision.
This is rarely true, but during this term it appears especially false. Today’s verdict on Trump v. United States, challenging the former president’s claims of immunity, held along more familiar ideological lines though the decision — in favour of presidential immunity for official acts, but not unofficial acts — was not as sweeping as some had expected. The six conservative justices — with some concurrences — send the matter back to the lower courts for a facts-based analysis.
Yet what is often ignored is that the 2023-24 term of the Supreme Court has seen a high share of unanimous holdings, which has been encouraged by Chief Justice John Roberts. 13 of the first 15 cases the court ruled on this term were unanimous in their holdings, even if a few justices did add concurring opinions to note disagreement on some part of the court’s reasoning in getting there. That included one high-profile unanimous holding, Trump v. Anderson.
There, the court ruled that Colorado’s attempt to apply the Fourteenth Amendment to remove Donald Trump from the presidential ballot was unconstitutional. Political junkies expected a 6-3 split, but while the court’s three liberal justices (Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson) did concur separately to note that they would have ruled more narrowly, all nine agreed on the holding.
Yet even in the split decisions, the arrangement of votes on many prominent cases would appear bewildering to anyone who thinks the justices are as straightforwardly partisan as members of a legislature. In Murthy v. Missouri, several states challenged the Biden administration’s collusion with social media companies as an unconstitutional attempt to limit free speech on those platforms. That one ended up 6-3, but not in the usual way — Justice Amy Coney Barrett wrote the opinion, joined by the three liberals and two conservatives (Roberts and Justice Brett Kavanaugh) and held that the government’s actions did not constitute a First Amendment violation.
There were others with the expected 6-3 split. In the three big cases limiting the sweeping authority of the regulatory state — SEC v. Jarkesy, Loper Bright Enterprises v. Raimondo, and Corner Post v. Federal Reserve — the lineup was predictable. Was it partisanship at work? Maybe. But it would also make sense that in these high-profile cases, the justices were nominated based on how presidents assessed their judicial ideas and temperament.
The pragmatic, conservative heart of the Roberts Court is Roberts and Kavanaugh, often joined by Barrett or Neil Gorsuch. That they sometimes combine with the liberals instead of their fellow conservatives flummoxes those who would see the judiciary as just another forum for political power, but it’s a good thing for the nation. These justices are inclined against sweeping, activist decisions, which was on display in Trump v. U.S. when the court told lower courts to conduct fact-based analyses of the former president’s actions before deciding immunity instead of questioning — as Justice Clarence Thomas urged — the legitimacy of the entire investigation.
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That was quite interesting. Thanks.
Seems to me like the court is functioning as it should. Republicans appoint conservative justices and Democrats appoint liberal justices. With lifetime appointments, none of them are beholden to a political party. That conservative judges are more likely side with the GOP is natural outcome, but it is not preordained.
The Progressive attack on the Supreme Court is part and parcel with it’s long term antics. They try to create fake narratives about the court so they can expand and transform and ultimately control the Court as a political vehicle.
The Supreme Court is functioning as a beacon of intellectual sanity compared to virtually all other institutions.
Come on, man! For decades the Republicans have openly and systematically aimed to get their own people on the Court, to make it go back on some key precedents and generally rule in a Republican way. You can argue that some kind of corrective was needed after the Burger court, and Roe v. Wade – but how can you accuse the Democrats of trying to “transform and ultimately control the Court as a political vehicle“, without breaking out in hysterical giggles?
Dear Rasmus Fogh: you really need to do some research – let alone thinking – before putting fingers to qwerty: Re your: “how can you accuse the Democrats of trying to transform and ultimately control the Court as a political vehicle”, here’s one of many thousands of examples: https://www.nbcnews.com/politics/supreme-court/democrats-introduce-bill-expand-supreme-court-9-13-justices-n1264132.
The point is not that the Democrats are innocent little lambs – they are not – but that the Republicans have run a decades-long program of ‘transforming and controlling’ the Supreme Court, which has already met with huge success. Before you get all outraged about what the Democrats are trying to do, you should at least recognise that it is a lot less than what the Republicans have already done – and got away with.
This is a perfect example of the headline being totally disconnected from the actual article.
In short, the US Supreme Court is functioning perfectly properly and as designed. This is despite the attack of the vapours the MSM had about the “overturning” of Roe v Wade, which was quite clearly wrongly decided, and the matter of the legalisation of abortion is one for the legislature of each State, not the Supreme Court of the Union.
The USSC only seems “conservative” after decades of leftism ruling, from the 1960s through the 1990s. They’re quite literally lifetime appointments, with far younger clerks and attorneys often doing much of the heavy lifting for justices who stay well past their dotage. The oft mourned Ruth Ginsberg first practiced as an attorney in the 1950s, for example, and had a leftist ideology that seemed to date back to Estes Kefauver, or the Wobblies.
A younger, more conservative court is not a bad thing for democracy. Unelected bureaucrats should not interpret their own legal authority, as they often did under Chevron. Legislatures, who are chosen by voters, are supposed to make laws in a democracy, and not the political appointees of our huge and intrusive federal agencies.
Nor were the “penumbras and emanations” of personal liberties sound case law for decisions like Roe v Wade, which resulted in the deaths of millions of infants, most of them viable but unplanned, and therefore inconvenient. Ginsberg herself admitted that Roe was, at bottom, poor case law, and the legality of terminating lives has almost always been a matter for the states.
Nor is the court ideologically compromised. There’s little question that social media censorship, of clearly political speech, was nearly mandated by the federal government. And that it’s a dangerous path for a constitutional democracy to take.
But standing – the ability to show that one has suffered a direct loss, or is directly affected by the course of another’s actions – is a legal principle, which is why the Missouri case was overturned in favor of the Democrats’ censors in DC.
A better plantiff probably could’ve won that one.
Great points, but I disagree with the last. The plaintiffs in the Murthy v. Missouri case who claimed that federal government people coerced Twitter, Facebook, and other platforms to censor them promised a lot and delivered almost nothing. Their claims of a censorship-industrial complex creating an Orwellian horror were Ciceronian, even Trumpian, in hyperbole. As Amy Barrett noted in her opinion, the picture painted by the district court was so far off the facts as to be clearly erroneous.
The social media platforms have been moderating content with a liberal bas since Joe Biden was a vice-president and through the Donald Trump presidency. They didn’t need to be coerced during the Covid-19 pandemic to censor medical misinformation. that the government wanted censored. There was no plaintiff with standing in the case because no one was harmed by the federal government coercing a social media company. Or if there was, it was an outlier that can be dealt with under existing law without the Supreme Court distorting clear constitutional principles developed over the past century.
This it not at all convincing to a non-Republican, after the latest decision. If the President is allowed to break the law with impunity there is nothing he cannot get away with. As Sotomayor points out, the line between official and unofficial acts is drawn so wide as to be meaningless.
Normally I would ask you if you really would want Kamal Harris or AOC in power with unlimited power to break the law, but the point is moot. The conservative majority on the Supreme court would never have taken this decision if they had to worry about their enemies making use of their new law-breaking powers. As long as the Republican side has a solid hold on the Supreme court, they can and will make sure nothing like that happens, and make any change to law and precedents they need to nail their man.
The most interesting point now is another. Joe Biden still has six months left in office, and has the legal right to break the law in order to make sure his side stays in power – the Supreme court just said so. He can pressure officials, put up false slates of electors, and try to overturn an election results he does not like, just like Trump did. Only the Democrats might be more competent at it. After all he Supreme court is unlikely to go against a precedent they set only a year previously. Can we hope that Biden’s various lawyers are going over the possibilities? It might be a long time before the Democrats get such a chance again.
Of course Joe Biden should feel free to do anything Donald Trump did to contest the election if he loses. Pressuring officials, putting up false slates of electors, and trying to overturn election results are time-honored actions for sore losers to take. He’ll probably be just as successful at it as Donald Trump, who failed miserably.
The decision in Trump v. US is not controversial at all, except for a partisan like Sonia Sotomayor who thinks without evidence that Donald Trump is guilty of treason. The decision follows the same line of thinking as the civil immunity that was already in place for presidents. Even with criminal immunity the president is not above the law, as we have plenty of checks and balances on presidential power.
Had the Democrats not chosen to abuse the criminal law to go after their most hated opponent in the middle of the campaign season with trumped-up charges, the Supreme Court would not have had to step in to stop this lawfare. But they did, so they did. We don’t want to be a banana republic, or a South Korea, Israel, or Brazil, where the victors put their predecessors in prison. We are a more mature democracy than that.
(By the way, I don’t think Joe Biden will make it to the election to lose it. Some doctors think he has mid-stage Parkinson’s disease, and that sounds right to me. That causes both physical and mental deterioration of the sort we’ve seen in Joe Biden recently. Some predict that he won’t be able to walk without assistance for much longer. He’s likely already on drugs to treat it.
When I saw his rigid posture during the song and dance at the Juneteenth celebration, and saw his frozen face, I thought something neurological was wrong. Then I saw his wife have to take his arm as he took 15 seconds to negotiate one six-inch step off the CNN stage at the debate. And of course his answers at the debate showed that dementia is in play too.
I’m not a fan of Joe Biden, but I am sad to see this happen to him. His degeneration is playing out in the most embarrassing way, in front of the world. He’s as exposed as if he was walking around naked. The only saving grace is that he is too far gone to notice.)
OK, let us take a hypothetical example:
A president uses his core constitutional powers as commander-in-chief to order a military unit to kill an enemy of the United States, who happens to be running against him for office. The president then uses his core constitutional powers of pardon to pardon all those involved, himself included. Is he immune, yes or no? If he is immune, is there any legal move (leaving aside counter-assassination by his successor – which would also be legal) that could provide a remedy? What would those ‘checks and balances on Presidential power’ that you are invoking be able to do? If the current president uses his immunity to take out his rival, what will your reaction be?
For the rest, there is some evidence that Trump is guilty of treason. That does not necessarily mean that he is actually guilty, let alone that he can be convicted beyond a reasonable doubt. Normally one would let the courts decide whether he was guilty or not – as they did for Russiagate. The problem is that with the latest ruling the case can never be tried. The Supreme Court has decided that even if he is guilty of treason, he is beyond the reach of the law.
‘OK, let us take a hypothetical example: A president uses his core constitutional powers as commander-in-chief to order a military unit to kill an enemy of the United States’. Not hypothetical. That’s exactly what President Obama did.
Your reading is rather selective. You skipped ‘who happens to be running against him for office‘. Let us put the names on: If Biden orders special forces to kill Trump, and pardons everybody involved afterwards, will Biden be immune from prosecution? Yes or no?
He would not be exempt. Your premise is that such actions constitute an official act. Being “Commander in Chief” isn’t equal to authorization of every action done citing that authority is official.
OK, I am not a lawyer. But I thought I read that the President has absolute immunity for all acts that are part of his core authority. And that the power to be commander-in-chief, head of federal law enforcement (and giver of pardons) are part of his core authority. Certainly the power to instruct the attorney general – even if you are instructing him to make fake lawsuits as part of a plot to subvert the election result – was explicitly found to be covered by immunity. If words mean anything, then all orders given to the armed forces are covered by full immunity. To prove otherwise they would have to try him – and the Court has just held that he cannot be tried because he is immune.
Of course the reality may be that the President is only immune as long as he is a Repulican and the Supreme Court Judges like what he does. In that case you are right: Joe Biden would not be allowed to get away with it.
Treason requires the US to be at war.
OK. I believe you. So, purely hypothetically, if you tried to overthrow the democratically elected US government in a bloodless coup, which crime would you be guilty of?
Actually, I think the decision protects Joe Biden for what his White House has already done – and that’s weaponise the DOJ against its political enemies and censorship of opponents. If Trump/Republicans get in they will rake over the coals of the J6 Committee, the Trump prosecutions, Hunter’s laptop, and the Twitter files seeking to find names, dates and places. Without this ruling they would put Biden in the legal crosshairs – a continual t*t-for-tat. And even with this ruling the president remains tied by the boundaries of the constitution. Presidential orders are subject to judicial oversight and questions of rights and process – Trump couldn’t even order his ‘wall’ to be built. The other rulings, on executive power, make it clear that there are limits to the way power can be exercised, and the importance of keeping Congress and judicial oversight.
I’d love for someone to explain to me how these limits are supposed to work. Sonya Sotomayor (who knows rather more than I do) does not seem impressed. And it is obvious that pressurising the administration to subvert the election result is perfectly acceptable, to the Supreme Court. If you are free to subvert the election, what are limits worth?
The ruling said that the President was protected when he was acting in his official capacity, but not when he was acting unofficially eg as a candidate. In his official capacity he is limited by the constitution (eg he can’t order student loans to be cancelled). The ruling is a simple restatement of the existing constitutional view. Nothing has changed. All that happened was the lawfare against Trump brought it to a head. It’s never been tried before.
The US President holds a special place in the US system of government – he can create orders, but not laws and is subject to investigation and budgets as decided by Congress. The way to hold him to account is through impeachment and election.
For instance, if the president believed (eg he had been told by credible observers) that the election had been manipulated and rigged he had a duty to seek time and an investigation.What if the strange swings in vote counts, and failure to count within a reasonable time, and willingness to overlook rules and laws on election conduct had given rise to a huge public outcry about manipulation? Should the president skate over it, just because he (or she) was re-elected with seemingly dubious votes?
I am no lawyer, but Sonya Sotomayor makes a rather convincing argument against that. To hear her, there is no mention of presidential immunity in the constitution, the works of the founding fathers, or subsequent jurisprudence. And since a number of states had various kinds of immunity for their governors, the founding fathers could (and likely would) have added presidential immunity if they had felt it was needed. What is new here is not the lawfare (we had that both with Nixon and Clinton), but that there was a president that openly tried to subvert the election result.
The standard question again: If Biden has the US army kill Trump and pardons all the participants, what should happen? He will be immune from prosecution, as of the latest verdict, and he will be immune from impeachment either because his party will back him or because he cannot be impeached once he is no longer in office.
As for electoral manipulation, the electoral system and the legal system have a lot of safeguards built in. If a President suspects that he has been cheated, his duty is to follow the system that has been made to certify election. The system said he had lost. He can go to court – which he did and he lost every case. Give him the right – let alone the duty – of gumming up the electoral process because he and his friends has a hunch they should have won, and we might as well be in the Democratic Republic of Congo.
If Sotomayor convinced, then I guess you also read the majority decision and decided that didn’t convince? We all make judgements as best we can, so why didn’t the majority convince you? (your comments are valuable – there’s no point debating with someone you agree with or who can’t understand the issue at debate). The view of J6 is formed almost entirely on how the election appeared to have been conducted, with opinions based on the hothouse 8 weeks following the vote. J6ers could believe they were acting for the constitution, not as election subverters. This is why electoral transparency is so absolutely essential to prove a vote was legitimate. Moot or no standing was a bad answer to the challenges.
OK, I went back and read the judgement, and parts of Roberts opinion (which pretty much mirror it). And there seems to be two ways of understanding it. Either the court thinks that the US President must be able to boldly and fearlessly break the law without having to worry about potential consequences. Which sounds rather strange. Or the court is taking for granted that the US legal system will be abused for political advantage so that you cannot trust the courts to deal with accusations against a president. Which sounds no less strange – the US Supreme Court deciding that the entire US legal system (themselves included?) is so partisan as to be unreliable? That would mean that the US is already a banana republic, and the only question is which side to favour.
The following quote was illuminating
Surely Roberts should have considered – and mentioned – the possibility that a President might be inclined to take some course of action based on his own private interest wanting to screw the public interest. Does he believe Presidents are angels? Unlikely. You just cannot get around the fact that Trump is accused of trying to overturn the election result – and the US Supreme Court has decided that this is just fine and no one should force him to be cautious or restrained about it. The most obvious explanation is that the majority of the court have decided that they want Trump to win (much like earlier courts decided that slavery should be maintained, or that abortion should be banned).
As for electoral transparency it is indeed important – but the time to deal with it is before the vote, when you set up the electoral system. If you are free to dream up your own reasons why you do not want to accept the result, and then override existing procedures and stay in power indefinitely while you try to ‘convince’ people who have no desire to be convinced, well, that kind of power belongs to Robert Mugabe, not to the US.
You’ve missed the target so completely, that I couldn’t find a way to write a short reply. The best I can do is point you at a 1995 paper discussing the history and reasoning behind presidential immunity (related to a claim for immunity from Bill Clinton) and hope it opens up some of the issues that are involved. https://scholar.valpo.edu/cgi/viewcontent.cgi?article=1883&context=vulr
The paper you referenced does not add anything to the discussion. First of all, it concerns only civil liability, not criminal proceedings. It raises two good points:
– Officials (including the president) need to be immune from civil liability arising from their exercise of their official duties. This is eminently sensible: if your job requires you to take decisions that could legitimately cause lots of damage to individuals, it is not possible to do your job if you have to fear that you will be held personally liable for such damage.
– The president specifically needs to be protected from being overwhelmed by civil cases even arising from non-official conduct for the duration of his presidency; cases can be resumed after he leaves office. Again, perfectly sensible.
But in the case of the latest Supreme Court decision we are talking about criminal liability. There is no public interest in making sure that the President (or any other official) is free to break the law, or to recklessly disregard whether his actions are legal. As for the need to protect the President’s time, you could perfectly well postpone any criminal cases till after he has left office, without impairing his functioning in any way.
In civil cases, by definition, you have two parties that disagree. You cannot tell anyone to ‘just not do anything that will get you sued‘. But with criminal cases you have the law, and you can and do tell people that they have a duty to stay within the law even if they do not know what the law says. That should hold for the President as for anyone else.
Reading your article I notice in passing that President Nixon was sued several times for waging illegal war in Vietnam. Presumably others have tried to sue later presidents for ordering assassinations in foreign countries etc. And the US judicial system has managed – I would say: correctly – to suppress those suits without any need for invoking the kind of immunity that the Supreme Court has found it necessary to add this time.
As Sonya Sotomayor points out, there is no presidential immunity for criminal acts in the constitution or the preparatory acts, and there is no such immunity in later jurisprudence. There is no public interest in allowing the President to freely disregard the law. The issue of wasting the President’s time does not apply to ex-Presidents. And the legal system is in all other cases trusted to reach the correct verdict. The only rational explanation for this decision is that there is some prima facie evidence that Trump has broken the law – and the Supreme Court has decided that if it so happens that Trump is guilty, he should be allowed to get away with it.
OK. So now you get why immunity exists and agree it’s important and useful, which answers your “…the US President must be able to boldly and fearlessly break the law without having to worry about potential consequences. Which sounds rather strange…”
Which then leaves the question as to whether immunity from civil suits should be extended to criminal suits. The thing is that this is the first time an incoming government has used criminal law to attack an outgoing president. Longstanding custom and practice was that it wasn’t done. Not for Reagan’s gun and drug running (Iran-Contra scandal), nor for Clinton’s dubious pardoning of Marc Rich, nor for Bush’s creation of an offshore detention and torture centre (Guantanamo), nor for his lying to take the US into war, nor for Barack’s gun running into Syria which ended up arming ISIS, or his gun running into Mexico (Fast and Furious), nor for his mass spying on US citizens. US presidents have a history of authorising criminal activities, but the incoming regime has always turned a blind eye to the president’s culpabiilty. Until now.
Both you and I hate the t*t-for-tat escalation between R and D from the Clinton impeachment onwards. This misuse of law and lawfare to ‘get’ your opponent is now resolved by the SC to extend civil case immunity to criminal cases, if done officially. It embeds what was practice up to now. As the paper explained, the unique nature of the presidency and the decisions the president is expected to make protects him in his role.
It also remains extremely moot if Trump was protecting the election from cheating and bad practice, or trying to undermine the election. His ongoing public statements and belief that the election was stolen can be read as his motives were the former rather than the latter. Elections have to be transparent, fair and auditable, but there were law suits before (dismissed on merit as the events hadn’t happened), during and after with predictable swings, overlong counting time and variations in handling unprecedented numbers of mail in ballots. The election process didn’t prove the results in the way it should have done.
We are almost finished. You clearly think that the US legal system is so partisan and corrupt that there is no practical difference between civil and criminal cases. Both are just things that your enemies do to get you, and the idea of trying to uphold the law has nothing to do with it. The only question remaining: Do you actually want the President to be able to break the law with total impunity – like selling pardons for $110 million a throw or throwing his rivals in jail on trumped-up charges? And if not, how do you plan to avoid it?
Your long list of criminal conduct that previous presidents got away with is not a good example. They were all actions that were clearly policy decisions, and as such part of Presidential authority. And the system let them get away with it on that account, without granting blanket immunity for breaking the law. Trump’s action were for his direct and personal profit and would have broken the electoral system. That is why he is being prosecuted.
It is not moot whether Trump was undermining or ‘protecting’ the election. There is a clear procedure for deciding who has won, and Trump was undermining that procedure. That holds regardless of any (totally unproven) shenanigans that the Democrats may or may not have done beforehand. Whether Trump personally believed that he had actually won or knew he had really lost is irrelevant. For one thing his state of mind is unprovable. For another he does not get a free pass just because he is able to convince himself that what he wants to happen really happened. Personally I do not think he makes the distinction: Donald J Trump is a winner, and if reality says that he has lost, then reality has to be wrong.
The election results were transparent, fair and audited according to the standard procedures. The procedures were set beforehand and enacted by a mixture of Democrats and Republicans, and neither group found reason to doubt the result. The only problem is that the Trumpers did not feel the election could be fair unless they won it. If Trump had any actual evidence of electoral fraud by his opponents, he should have presented that evidence within the time frame determined by law. That is how the system works. It has to be, because anything else means that the losers can draw the process out forever and refuse to accept the result. Elections are imperfect. Some of them are unfair. But when they are over they are over, and you stick with the result you got.
PS: I just read that the Supreme Court (on the usual 6:3 conservative:progressive split) has decided that it is legal for officials to accept cash presents from people they do official business with – as long as they get the money after they do the favour and you cannot prove there was an actual contract beforehand. In other words, bribery is legal, provided you go about it with a minimum of intelligence. Just what kind of society is it that your MAGA Supreme Court is leading us into?
As I said at the outset, the law protects Joe Biden whose White House is trying to put its principle opponent in jail by constructing abnormal charges to ‘get Trump’ and his advisors (Bill Clinton was the one selling pardons). The SC decision protects Biden when the roundabout turns. Lawfare is entirely about using the law for political ends – it’s about power, nothing about justice or principle. I would recommend you read the decisions and not the headlines in partisan newspapers who want to sell you shock and horror, or who are seeking to smear the SC for political gain. The SC are not unlearned amateurs.
OK, I guess we are done. You have nothing to say about keeping Presidents from flagrantly breaking the law.
Just a parting comment: the law only protects the Democrats if 1) the Supreme Court is as protective of Democrat presidents as they are of Trump – which is highly unlikely. And 2) if the next Republican administration does not simply subvert the election result and keep themselves in power forever. Once there are no rules, it is very unlikely that they will let their opponents back in to do to them what they could do to others.
The Supreme Court are not unlearned and not amateurs. They are just Republican operatives.
The Democrats are trying to put their political opponents in prison. They have run hoaxes and smears continually for the last eight years to undermine their political opponents. They have the best vote gathering outfit ever built – they are very, very good at elections. They are currently trying to undermine the Supreme Court – remember Kavanagh hearings, the threats to the Supreme Court and now continual smearing by bigots like Robert Reich. If that’s all you read, that’s what you’ll believe. As someone intelligent the key thing is not to get trapped by partisan media.
As Don Barzini said to Don Corleone: “That is true enough, as far as it goes. But there is a little more“. The democrats are trying to put their opponents in prison because their opponents have broken the law and tried to falsify the election result. They are trying to undermine the Supreme Court because the Supreme Court has been taken over by the Republicans (how many rules of normal political behaviour did the Republicans break to ensure they got that 6:3 majority?) and because the decisions are now getting so partisan that it is impossible to pretend that these people are in any way neutral.
That does not mean that either side are angels. There has been an escalating t*t-for-tat of dirty tricks, smear campaigns, forum shopping, bad-faith lawsuits etc. on both sides for years (including Whitewater, ‘lock-her-up’, that fake ‘pissing-prostitutes’ report, and yes, the campaigns against some of the Supreme Court judges). But the way out is not to keep upping the stakes to beat the enemy. That can lead only to ungovernable chaos, civil war, or an authoritarian one-party state if you keep it up. The first thing you would need to do is to admit that both sides have been at it, including your own. The second would be to calm down a bit, stop escalating, and stop the continuing brinksmanship (like routinely threatening to shut down the government). Aim for an armistice and confidence-building measures, much like two countries close to war. And it should be obvious that there can be no peaceful co-existence when one side claims that they have the right to falsify the election result without having to worry about any downstream consequences.
Well, this is t*t-for-tat. Both sides sides are using ever nastier tricks. But as long as you keep raising the stakes in order to win, the other side will just do the same. That game can only end in chaos, civil war, or one-party autocracy – yours or theirs. If that is not what you want, you need to calm down, stop the brinkmanship (like shutting down the government as a routine tool to make a point), and try for shared red lines and confidence-building measures, like two countries close to war. First of all, you need to acknowledge that your own excesses have caused this just as much as those of the other side. Why should the Democrats hold back, if they know that you are not going to?
And, unfortunately: You are already in total-war territory so you need to walk back a bit. There can be no peaceful co-existence as long as one side claims a constitutional right to overthrow the election result and be immune from any consequences.
I’m not on a side. Like many of the independent observers I’m noting how bad the political situation has got since 2006-2008. You have to be able to see the world from all sides to make sense of what is happening – so acknowledging and balancing Republican views and Democrat views to understand where opinion is moving. You often seem to be only aware of Democrat talking points (the anti-Supreme Court being their latest push).
Post 2016 the Democrats went nuclear – they have no boundaries in their seeking of revenge against Trump. They make things up. They play the media and they spin false narratives. They have become the most dangerous political party in a democratic state I have seen in my lifetime – censorship, driving people out of jobs, making up crimes to imprison people, playing one set of rules for us, another for them (eg the contempt of congress imprisonments).
Republicans distrust the 2020 election still. It had predictable issues (in that I predicted them beforehand), but didn’t have sufficient transparency and a poor process that sowed doubt about its propriety.
This led to differing opinions about the probity of the result. Courts didn’t help by not examining facts but dealing with complaints on procedure (eg the Attorney Generals case). A balanced view would say one side thought it was fair (the winners) and one side thought there were issues (the losers). The purpose of an election is to persuade the losers – the process didn’t do that. This means J6 protesters and Trump can believe they are upholding the constitution by protesting a bad election. If you can see both sides, you’d understand this. Instead you stick to the Democrat narrative of Trump bad so they only reason for the protest was to overthrow the US system (insurrection). Think from both sides. Look at the narrative you’re being sold. Read the source materials in addition to the spins to see what they’re doing.
The purpose of an election is not to persuade the losers – you can never persuade the losers if the losers are not willing to be persuaded. The purpose is to have an settled system for the transfer of power, that both sides agree on beforehand, and where both sides accept to abide by the result. There was an agreed system, Trump and co just decided that they would not accept any result that did not mean that they won.
You could make a very similar argument about Trump as about elections: Trumpers and Democrats have different views about whether or not he tried to subvert the election. The remedy would be to have the legal system examine the facts, fast, and determine whether he was guilty or not. Transparency and good process, right? Instead the Trumpers opted to delay the process till Trump could shut it down, and the Supreme Court closed the question forever by deciding that whatever he did, it was OK and may not be investigated. People on the other side now know that the Republicans tried to subvert the election, and that the Supreme Court chose sides and backed them, and nothing will ever convince them differently.
There is a difference, though. The people who doubted the election had no solid evidence (at least I have never been shown any), nothing beyond ‘it cannot possibly be right that we should lose’. You cannot make up your mind without regard for evidence, and then demand that the opposition prove (using evidence?) that your opinion is wrong. On the other side there is plenty of uncontested up-front evidence to show that Trump actively tried to change the election result – and now we shall never have an objective evaluation whether that evidence was convincing, or sufficient.
Also, elections have to deliver results in a clear time frame, you cannot put them on hold indefinitely and let the aggrieved losers stay in power while they insist on ever more detailed proof that their hunches are wrong. For the cases against Trump there was four years – that would have been plenty of time to reach a decision were it not that Trump and his lawyers tried to delay the process till it was too late to get a result – and the Courts chose to help them succeed.
Finally. the various appeals against the election results were decided – as they should be – using existing law. In order to protect Trump from being held accountable for his actions, the Supreme Court decided to invent a new constitutional principle, with no backing from precedent, law or constitutional text, and in open defiance of anything that can be deduced about the founders’ intentions. As per Sonya Sotomayor’s dissent, the majority opinion preferring not to say much about these questions. Transparency and good process, anyone?
Biden whinges when the legal system does not deliver his agenda!
Those who use lawfare will be hoist by lawfare!
The recent Trump vs US decision is an earthquake. I think it means that President Nixon was improperly forced out of office. Many impeachments may also have been improper.