POLITICS
What the court got wrong this week
How the Supreme Court’s Immunity Decision Ignores Madisonian Logic to Anoint an Imperial Presidency
On the last day of the 2024 term, the United States Supreme Court ruled (6–3) in favor of unprecedented and expansive presidential immunity. Analysts are unpacking the problems with Chief Justice Roberts’s shocking majority decision in Trump v. United States with regards to the politics of the 2024 election and the manner in which the Roberts’s Court has used any form of interpretation to reach a desired outcome.
What needs more attention is how this radical Court ignores one of the most basic tenets of American constitutionalism: the U.S. Constitution creates a constitutional republic, not a democracy. Joe Biden has called upon the voters to fix the Court’s mistake — but he (and the Supreme Court) fundamentally misunderstand the U.S. Constitutional system.
The U.S. Constitution depends upon the government to check itself through the separation of powers rather than assuming the voters will provide an “external” check through elections. As James Madison summarized in Federalist #51 (1788), a “dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” The Roberts’s court has unconstitutionally removed some of these “auxiliary precautions” to combat corruption or a coup.
The conservative majority — usually fond of the “original understanding” of the people who wrote the Constitution — throws aside Madison’s logic. They assume voters will provide accountability for a failed coup but the creators of the Constitution insisted that depending on the voters was insufficient. The Constitution requires two sets of checks: internal checks from the government and external checks by way of elections.
The Constitution was written in secret in Philadelphia in 1787 and then ratified by the states. We have an enormous amount of documentation because participants took notes during debates in Philadelphia and the states. Federalist #51 does a good job of summing up the logic behind requiring the branches of government to police each other. All people — and especially elected leaders — are self-interested and seek to acquire power.
For Madison, government is just a reflection of human nature: “If angels were to govern men, neither external nor internal controls on government would be necessary.” The Constitution’s separation of power (legislative, executive, and judiciary) arranges flawed individuals such that the “interest of the man must be connected with the constitutional rights of the place.”
The Constitution obliges the government to “control itself” and this has mixed results in the last few years as the Department of Justice, Congress, and many federal judges have demonstrated that Trump acted to overturn the election and remain in office. This is precisely what “counteracting ambition” means. Roberts’s opinion restricts the power of all of these actors by declaring immunity for the president, especially if the president speaks to their own advisers inside the White House.
In the case of Donald Trump, the democratic — external check — approach would be to allow “the people” to judge whether he is fit to be president again in November 2024. This is not a “founding” approach and there are modern structural issues that make it difficult for voters to register their concerns such as gerrymandering, fair representation and voter ID laws that have been shown to negatively affect racial minorities. The electoral college is not a popular vote and two recent presidents won the electoral college but lost the popular vote (George W. Bush, 2000, Donald J. Trump, 2016).
Many in the founding generation feared elections were not sufficient to check bad governmental behavior. To be clear, I don’t believe in originalism and I reject the idea of capital “F” Founders because the term erases the differences among those in the Federalist party and the important legacy of the Anti-Federalists. But looking at the looking at the 18th century logic helps with 2024. Madison, Hamilton, James Wilson, and other supporters of the Constitution argued that a system exclusively based on “majority rule” was unstable and likely to hurt minorities (religious and economic).
Some Federalists sought to maintain the right of a minority to legally own and/or trade human beings. These are not deities and we don’t want to follow the founding generation blindly. But the logic on separation of powers helps explain why it is problematic to rely on voters in November 2024 rather than allow the Justice Department and courts to address the issues.
Do voters have sufficient time, information, and expertise to weigh all the issues in the recent immunity case?
Voters would have to understand 50 years of SCOTUS precedents about presidential power, the federal charges involving official documents, the long and complex history of the Espionage Act, etc. A Madisonian approach would require both: government investigates itself and the voters weigh the behavior of the former president.
Over the last five years, members of the government have refused to play their Constitutional roles to “counteract ambition.” The second impeachment of Trump demonstrates the trend. The Constitution gives the Congress the power to impeach the President rather than wait for the next election. This is about accountability. The House of Representatives impeached President Trump for “incitement of insurrection” after the January 6, 2021 attack on the U.S. Capitol. Yet most Republican senators challenged holding the Senate trial and did not participate. The Senate did not hold the former president accountable — and set up the current crisis in which 6 in 10 Republicans believe Trump won the election.
Analysts are calling attention to the wider issues in the immunity case but what are the incentives for the American media to educate voters. New York Times columnist Jamelle Bouie points to the separation of powers on Bluesky. And, political scientist Jonathan Bernstein highlights how the immunity decision transfers power from Congress to unelected judges and justices.
Yet, an incentive of American media companies is to monetize the news, and I question whether even well-intentioned reporting and analysis is enough to focus the voters on a power grab by six unelected justices. Approval ratings for the SCOTUS had been at an all-time low but they appear to be ticking up. Will voters believe the SCOTUS (and perhaps excuse Trump’s attempts to overturn an election)? Will the other branches give voters information that would allow them to hold Trump accountable?
In President Biden’s short speech following the immunity decision, he insisted that the Court had set a dangerous precedent, departed from long established legal principles, and undermined the rule of law. He reminded viewers that Trump incited a violent mob on January 6th and he criticized the Supreme Court for failing to hold Trump accountable.
But, in the end, Biden too threw aside Madison and the idea of a republic. He said that the American people must do what the Court would not. The question before them was does what Trump did on January 6th and his embrace of violence make him unfit for the office of the presidency? He said the people will have to decide. They must dissent (as Justice Sotomayor did) from the decision.
But Biden gave voters nothing except their vote for president in November 2024. Biden did not lay out a way for voters to truly challenge a Court that has gone off the rails. He did not offer a “Contract with America” that asked them to vote out the senators who confirmed these six justices. He did not explain how it is that those six people came to have so much power and why they have to be stopped. He also did not clarify how many Americans have votes weakened by gerrymandering or lack of access. He emphasized the agency of voters rather than the structure of the government and voting rules.
It seems to me that everyone needs to reread Federalist #51. Voters cannot save the republic alone. They need the help of people who spend their lives learning the law and understanding the details. Even voters who pay keen attention to politics do not have the information they would need to counter every misstep on the part of government.
Someone with greater rhetorical skills than Joe Biden needs to make two cases to the American people. First, they must not return Trump to office because he tried to overturn the election, etc. Second, they must stop the Supreme Court by giving Democrats a wide majority in the Senate. Court reform, impeachment of justices, and even appointment of new justices is impossible without a different Senate.
