We're Not Talking About the Worst Part of the Trump Immunity Decision
The Supreme Court's staggering decision to grant criminal immunity to former President Trump has plenty of obvious downsides. Commentators have been pointing out for months how the Court's delay granted de facto immunity to Trump in the January 6th cases, by making it impossible to try him before the Election. But the Court's decision to actually rule that Trump is immune from prosecution for attempting to overthrow the election went further than almost anyone expected.
Constitutional scholars have pointed out that the Court's decision is at war with the text of the Constitution as well as its spirit. Since the Founders expressly contemplated the President being subject to the criminal law, the Roberts' Court suddenly discovering that he's not makes a mockery of "textualism" and "originalism," which are now revealed to be smokescreens for a judicial power grab. The original animating idea of America – government by the People and not by an absolute monarch – has also apparently gone by the wayside. Seventy percent of Americans disagree that the President should be immune from prosecution.
But the real disaster here is what the Court has foreshadowed. This decision is legally embarrassing, constitutionally indefensible, and represents an enormous blow to the credibility and legitimacy of the Court. The Justices are smart enough to know that and they decided to do it anyway. There is no reason for them to pay that price unless they have already decided they are prepared to hand the election to Trump.
Polls have shown a close race all along and the likelihood is that just a few, or even just one state will decide the election. After Trump's 2020 loss, a collection of the most incompetent and embarrassing attorneys ever assembled filed ramshackle challenges to the results in several states. The few cases that made it to the Supreme Court were turned aside. There will be no repeat of those mistakes this time around.
Any states won by Biden by anything like a close margin will be challenged this time by elite federalist-society-approved and billionaire-funded lawyers who have exhaustively prepared various grounds to dispute the votes. Instead of self-appointed crackpots meeting in basements and calling themselves "alternate electors," there's a real probability of GOP state legislatures actually voting to overrule the voters' choices. A GOP-controlled house would be ready to throw the electoral count itself into chaos by any available means. With four months to go, spokesmen for mainstream, right-wing institutions are on TV expressly promising violence if they don't get their way.
The backstop for all of this nonsense would traditionally be the Supreme Court. The Court would, in previous years, been able to put a stop to these nonsense legal concepts invented to overrule the will of the people. But we can be confident now that it does not intend to do so – the immunity ruling confirms it.
There's no reason to grant Trump this vast immunity if you don't intend to see it used. The Court's rhapsodizing about a "bold" President obviously doesn't apply to Biden – this Court routinely overrules his policies. "Institutionalist" John Roberts – a strategic thinker with a high opinion of himself – would never have allowed the Court to take the credibility hit of giving Trump criminal immunity for his last coup attempt, if he did not intend to see the conquest completed this time. Given any plausible chance to do so, this Court has signaled it will throw the 2024 election to Donald Trump. If Biden means to win the election and remain President, he will have to win overwhelmingly.