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This week’s arguments at the U.S. Supreme Court were disturbing. They also, however, can and should serve as a warning siren. Attention on the courts must be centered in our political discussions to ensure that our courts can serve as a protective possibility for individuals and, when called upon to do so, will serve as a backstop against tyranny.
Twenty-one years ago this spring, I was a first-year law student at The Ohio State University’s Moritz College of Law. I was beginning to work for a professor on research for writing that he was doing surrounding Lawrence v. Texas. It was the first time I’d read every brief — including every amicus curiae brief — filed in a U.S. Supreme Court case, and that work for Marc Spindelman taught me more about what ended up becoming my career than perhaps anything else that I did in law school.
In doing so, I learned much about the Supreme Court and the way law is handled at the high court — with history, experiences across the country, and our neighbors across the globe all providing relevant, but not definitive, frames of reference for understanding any case and the statutes or constitutional provisions at issue in that case.
Twenty-one years later, that experience is increasingly irrelevant to understanding any case. While textualism and originalism were supposed to be, we were told, our touchstones for interpretation under the conservatives’ legal vision for America, we heard little of that from the court’s conservative men on Thursday when Donald Trump’s immunity claim came to the justices. Then, text and history were inconveniences.
The truth, instead, came through. Arguments at the Supreme Court this week were not about law. They were about power and control.¹
Although Justice Sonia Sotomayor tried to point discussion to what “the Founders actually talked about” when it came to presidential immunity, the men didn’t want to hear it.
Chief Justice John Roberts asked Michael Dreeben, arguing for the government, about actions of the U.S. Court of Appeals for the D.C. Circuit “to take away any official immunity” that Dreeben answered was never there.
Justices Clarence Thomas and Sam Alito asked instead why other former presidents hadn’t faced prosecutions for their acts. Alito and Justice Neil Gorsuch asked whether allowing a prosecution of Trump here would lead to future presidents issuing self-pardons before they leave office. Alito also suggested that allowing Trump’s prosecution for an actual attempted to overturn an election might encourage a future president to mount an insurrection to stay in power rather than leave office because, otherwise, they might face prosecution.
Finally, Justice Brett Kavanaugh, for his part, acted as Trump’s secondary counsel on Thursday. Throughout the morning, Kavanaugh “clarif[ied]” — aka, made — points in favor of an incredibly robust, nearly inviolable view of presidential power that Trump’s lawyer, John Sauer, was not himself successfully making.
It wasn’t just Thursday, either.
Although each case was different, the men of Supreme Court, in the arguments I attended in person, expressed more unified concern about the hypothetical consequences for future presidents who might be open to carrying out a coup than they did for actual people needing a blanket because they lack a home or actual women who risk the loss of their ability to have children in the future if they cannot get an abortion today.
Similar stories played out this past week in other less closely watched cases as well, with the justices seeming unlikely to protect workers challenging employers’ actions in a case addressing the standards for injunctions sought by the National Labor Relations Board and spouses seeking to challenge consular decisions keeping them separated from their loved ones.
The law does not work if it is used merely as a tool to protect one man. Judging by this week’s arguments, however, the five men on the Supreme Court, to varying degrees, are not so much concerned with whether the law works.
Arguments are not decisions, however, and it remains possible that the ultimate decisions in these cases will be more moderated than the extreme visions presented by Roberts in the homelessness case, Alito in the abortion care case, or Kavanaugh in the presidential immunity case.
But the warning siren was that arguments this week. The arguments from those men were evidence of a danger no longer hidden — even among the public statements of the justices of the Supreme Court — for the rule of law.
Clearly viewing that danger must be central to our understanding of where the country is at — and where it could be going. We must act accordingly.
Yes, ultimately, that’s all that the law ever is, but, if that is your view, you’re already on board. Let me take others through it here today.
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