Many Americans are confused by the spectacle they heard (we couldn’t “witness” it because Republicans on the Supreme Court won’t allow their proceedings to be televised) yesterday as an attorney for Donald Trump, at least three different times in different ways, argued that Trump was above the law and should be treated as such.
Even more baffling was the apparent agreement with that position by at least four of the six Republicans on the Court.
Every time the government’s attorney or the Democratic appointees on the Court tried to bring the discussion back to “calling balls and strikes in the case before us” (as Roberts said is all he’d ever do) the Republican appointees changed the subject, claiming they’re more concerned about “future presidents” than Trump. Right…
Associate Justice Sam Alito — who famously loves 16th century witch-burning judges and “unborn children” — went so far as to create a hypothetical in defense of Trump that turned reality on its head. Keep in mind, it is Trump, not Biden, who’s spent nearly four years trying to destabilize both our political and judicial systems.
Nonetheless, Alito asked:
“If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
Say what? Jack Smith is a greater threat to democracy than Donald Trump?
Throughout the entire two-plus hours, Republican justices (with the possible exceptions of Amy Coney Barrett and John Roberts) implicitly supported Trump’s attempted coup (that Justice Thomas’ wife was in the middle of).
Trump’s attorney argued — with the apparent agreement of four of the six Republican appointees — that if Trump were reelected he could assassinate people, stage a military coup, and sell America’s military secrets to Putin with no consequences whatsoever.
Which raises the vital question: why would they be so cavalier about Trump’s threat to our democracy? Is it just that Thomas and Alito want to retire and want their replacements selected by Trump instead of Biden?
The simple reality is that conservatives throughout modern history have viewed democracy with a jaundiced eye, and the Supreme Court’s Republican appointees are no exception. To their minds democracy is fine when it puts them and their patrons in power, but when it fails at that it’s an impediment to wealth and power that must be circumnavigated.
As one of history’s most famous conservatives, England’s Edmund Burke, noted in the late 18th century, when people engaged in “servile” occupations like hairdresser or candle-maker are allowed to participate in democracy by voting, the state suffers “oppression” and is “at war with nature”:
“The occupation of a hairdresser or of a working tallow-chandler cannot be a matter of honour to any person — to say nothing of a number of other more servile employments. Such descriptions of men ought not to suffer oppression from the state; but the state suffers oppression if such as they, either individually or collectively, are permitted to rule. In this you think you are combating prejudice, but you are at war with nature.”
At the CPAC convention this past February, a well-known rightwing influencer, Jack Posobiec, went off on a rant about how important it is for conservatives to band together to end democracy in America and, presumably, replace it with Christofascism just like in Russia and Hungary.
“Welcome to the end of democracy!” he declared. “We’re here to overthrow it completely. We didn’t get all the way there on January 6th, but we will endeavor to get rid of it and replace it with this right here,” he added as he held up a cross.
This, frankly, should not be surprising. It was 1951 when Russell Kirk, the godfather of the modern conservative movement, published his book The Conservative Mind: From Burke to Eliot in which he laid out the importance of “classes and orders” in society. (I detailed Kirk extensively in The Hidden History of American Oligarchy.)
The middle class was growing like a weed back then — this was before Reagan kneecapped the labor movement — and Kirk warned that if too many people got into the middle class and were no longer “the fearful poor” that there would be chaos in America.
He warned that too much middle class wealth would mean that women would no longer fear and respect their husbands, racial minorities would forget their “rightful place” in the social order, young people would defy their parents, and society would generally go to hell.
Kirk’s solution, dictated back in the late 1700s by Burke himself, was to gut the middle class and return to the “normal” social form of a small number of really rich people at the top, a tiny middle class of doctors, lawyers, and professionals who served the rich, and a massive class of the working poor.
This was the Victorian world Charles Dickens wrote about in almost all of his novels, and, when the 1960s happened and women, students, and minorities rose up in protest, became the world that Reaganomics was established to return us to.
“‘My little child!’ cried Bob [Cratchit in Dickens’ A Christmas Carol]. ‘My little child.’ He broke down all at once. ‘He couldn’t help it.’” … “‘It’s only once a year, sir,’ pleaded Bob.”
Re-impoverishing America’s working class families to avoid the dire consequences Burke and Kirk identified, Reagan declared war on unions, gave the rich massive tax cuts, gutted federal support for education (creating today’s student debt crisis), and started the GATT/NAFTA negotiations that led to over 50,000 factories and over 15 million good union jobs being shipped overseas.
Every Republican president since has doubled down on Reagan’s campaign to devastate both the American middle class and the democracy that once supported them: Bush and Trump added tens of trillions to our debt with their tax breaks for billionaires, all three Republican presidents since Reagan packed the courts with democracy-skeptical ideologues, and each has worked to enrich the wealthy while cutting aid and support to working class and poor Americans.
Gutting the middle class, eliminating the social safety net, and “restoring order” to society is still the conservative mantra, now heavily overlaid with racist tropes and rightwing Christian ideology.
So Posobiec’s proclamation that it’s time to replace democracy with strongman authoritarianism, and the endorsement of that worldview by Republicans on the Court with yesterday’s dog-and-pony show, is just another variation on Kirk’s and Burke’s distrust of what John Adams famously and angrily called “the rabble.”
This is not a new debate.
Thomas Hobbes’ 1651 book Leviathan, often seen as a seminal origin document for the Enlightenment, argued that people should ultimately be able to govern themselves (thus establishing what Americans today call the “liberal” school of political science).
Leviathan also, however, articulated the foundation of the modern-day “conservative” worldview when Hobbes wrote that, lacking the iron fist of church and state, human societies and nations would invariably revert to their “natural” state:
“In such condition, … the life of man [is], solitary, poor, nasty, brutish, and short.”
One-hundred-three years after Hobbes published those words, Jean Jacques Rousseau rebutted him and established the intellectual basis used by the Founders of our American republic, arguing that the “natural state” of humankind is not violent and hierarchical but, rather, compassionate, egalitarian, and democratic.
The Founders and Framers of the Constitution agreed with Rousseau, and explicitly wanted to limit potentially monarchical powers of the presidency. At the Philadelphia Constitutional Convention in September of 1787, James Madison, noting that the Virginia constitution gave “some executive immunities related to the criminal process” to that state’s governor, asked the assembled delegates to “consider what privileges ought to be allowed to the Executive.”
Not a single delegate rose to defend the position; instead, Charles Pinckney called for an adjournment for the day. During an 1800 debate in the US Senate, Pinckney explained to his colleagues that “it was the design of the Constitution, and . . . not only its spirit, but letter . . . that it never was intended to give Congress, or either branch, any but specified, and those very limited, privileges indeed.”
As Jack Smith noted in his written pleadings before the Supreme Court, “James Wilson told the Pennsylvania ratifying convention, the president was ‘far from being above the laws,’ and ‘not a single privilege [wa]s annexed to his character.’”
Tench Coxe, who I quoted extensively in The Hidden History of American Democracy, noted in a 1787 essay that it was the intention of the Founders that a president could be “proceeded against like any other man in the ordinary course of law.” And, indeed, when Vice President Aaron Burr fatally shot Alexander Hamilton in a duel, two different states brought murder indictments against him and not a single court objected or argued that the executive branch should have immunity from prosecution under criminal law.
But don’t tell any of that to the Republicans on the Supreme Court.
From gutting both civil and voting rights, to kneecapping union rights, to helping George W. Bush steal the 2000 election that Al Gore won in Florida by more than 40,000 votes, the Court’s conservative majority has steadfastly held to the Burkean belief that too much democracy is a danger that can only be balanced by handing as much wealth and political power as possible to the morbidly rich.
Which is why expanding the Supreme Court and establishing a code of conduct for its members via a new Judiciary Act must become one of the first jobs of a second Biden administration.
The fear of that happening, in fact, may well be one of the reasons why Republicans on the Court went so far out of their way to help Trump return to the White House via the delays they’ve inflicted on Jack Smith’s efforts to hold him to justice.
Trump’s attempted coup is nowhere near done: both the Republican Party and the Republicans on the Supreme Court are working as hard as they can to complete it and replace American democracy with naked oligarchy.
To paraphrase Burke, when men and women who don’t trust democracy are given the power to regulate it to the benefit of themselves and their billionaire patrons, the nation itself suffers oppression and is at war with nature.
Pass it along.
