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Republicans this week asked the Supreme Court to throw 40,000 Arizona voters off the voting rolls. This is not the sort of case the Framers of the Constitution meant for the Court to be deciding; for the past few decades, since rightwingers took over the Court, it’s been regularly overstepping its charter.
Similarly, Donald Trump’s criminal attempt to overthrow our government on January 6th is now back before Judge Tanya Chutkan’s court, although whatever decision she renders will instantly be appealed by Trump’s lawyers back to his friends on the Supreme Court. Tragically, justice will be a long time coming.
And now Senator Chuck Schumer and Congress want to do something about it.
When the six corrupt and well-bribed Republicans on the US Supreme Court gave Donald Trump immunity from prosecution for crimes he committed while president, they not only “broke” the law but defied the Constitution itself. This offense to our republic’s rule of law demands reversal, and Congress, at the moment, is the only venue where that can be done.
In this case, the Republicans on the Court created a new doctrine of presidential immunity out of thin air. Not only is this a violation of American law, but it also contradicts the authorities the Constitution gave the Court. As Justice Sonya Sotomayor pointed out in her dissent (see below), it’s quite literally unprecedented, a massive power grab, and a corruption of our republican Constitution.
There is a remedy, but to understand it you must first understand the nature and constitutional powers of the Court itself, as I lay out in detail in The Hidden History of the Supreme Court and the Betrayal of America.
While the Constitution created the House, Senate, and the Presidency and Vice Presidency, its authors left the definition of the size, nature, and budget of the Supreme Court to Congress itself. The Supreme Court didn’t even come into being until Congress passed a law defining it. From Article III, Section 1:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Thus, on September 24, 1789 Congress created the Supreme Court via the Judiciary Act of 1789:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum, and shall hold annually at the seat of government two sessions…”
Not only was the Supreme Court to be the creation of Congress, but the Framers of the Constitution further specified that it was to operate directly under the supervision and regulation of Congress itself, which even had the power to define entire areas of law where the Supreme Court could be forbidden from ruling. Per Article III, Section 2:
“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
This was because the Framers of the Constitution wanted the Court to be the weakest, least powerful branch of our government for the simple reason that — its members being appointed, and for life at that — it is the only branch entirely unaccountable to We the People.
In his and Madison’s sales pitch for the Constitution, Alexander Hamilton, on May 28, 1788, wrote in Federalist 78, that the courts, including the Supreme Court, were the weakest of the three branches created by the Constitution. After all, at that time it wasn’t envisioned that they would ever have the power to strike down laws passed by Congress or create law or policy out of thin air (like saying the president has immunity from prosecution for crimes).
“[T]he judiciary is beyond comparison the weakest of the three departments of power,” he wrote, adding in the same sentence that “it can never attack with success either of the other two [branches].”
He even footnoted that sentence with a quote from the famous French judge Montesquieu, who had first famously articulated the idea of a separation of powers between governmental branches as a check and balance. Hamilton’s footnote read:
“The celebrated Montesquieu, speaking of them, says: ‘Of the three powers above mentioned, the judiciary is next to nothing.’”
Don’t tell that to the Republicans on the Court, however; after years of stroking and bribes from rightwing billionaires, they’ve come to think of themselves as the true kings and queens of America rather than mere servants to the Constitution and our nation’s legal processes.
Consider, for example, that notorious partisan liar Sam Alito when, a year ago July, he wrote in The Wall Street Journal:
“No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”
Or two weeks ago’s absurdity when Neil Gorsuch had the audacity to warn President Biden, who just proposed a binding code of ethics for the Supreme Court as well as term limits, that he should “be careful.”
As noted above, the Constitution did not create the Supreme Court; it merely identified it and authorized Congress to bring it into being. It did this on September 24, 1798 — about half a year after the first Congress was sworn into office on March 4, 1798 and President George Washington was sworn into office on April 30, 1798 — when Congress also simultaneously created the rest of the federal court system.
Even worse, there is not a single place in the Constitution where the Supreme Court is authorized to either create or strike down laws.
Creating laws or policy for the United States is an authority given exclusively to Congress. All laws must originate, in fact, with the House of Representatives because they’re elected every 2 years and thus “closest to the people,” then go to the Senate, and generally only become law with the approval/signature of the president.
Similarly, striking down all or parts of laws or creating policies out of whole cloth —like “presidential immunity” — is an authority that is also only given to Congress by the Constitution. There’s not a single word in the entire document authorizing the Supreme Court to do such things.
In 1803, in the case of Marbury v Madison, the Supreme Court took onto itself the limited power to strike down laws which they believed conflicted with the Constitution. President Thomas Jefferson was horrified, writing to his old friend Virginia Supreme Court Justice Spencer Roane:
“If this opinion be sound then indeed is our Constitution a complete felo de se [a suicide pact]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation. …
“The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
But even at that, the 1803 Marshall Court didn’t try to create new law out of thin air like the six Republicans on the Court did last month when they created a brand-new never-before-seen-or-considered doctrine of presidential immunity.
Even Chief Justice Roger Taney’s 1856 Dred Scott v Sanford decision which declared that every Black person, even in the north, should become the property of a white person (which President Lincoln explicitly chose to ignore) was grounded in references to the Constitution’s original protections of slavery.
Similarly, Chief Justice Morrison Remick Waite’s 1886 comment reproduced in the headnote to the Santa Clara County v Southern Pacific Railroad case, which later courts exploited to grant “personhood” to corporations (as I examined at length in my book Unequal Protection: How Corporations Became “People”), was based in the Bill of Rights and the 14th Amendment.
And those were the two single most egregious decisions of the entire 19th century! Arguably the most controversial decisions of the 20th century were Brown v Board and Roe v Wade and, again, both were grounded in the Constitution itself.
While the opinion, concurrences, and dissents in Trump v United States — the case giving Trump immunity for “official acts” — includes 219 references to the “Constitution,” the only direct quote used to justify giving the president immunity to commit crimes while in office is from Article II: “[T]he executive Power shall be vested in a President of the United States of America.”
Everything else is a twisting and perversion of previous cases, opinions, and the meaning of “executive Power.” The six Republican justices pulled this doctrine allowing for a criminal presidency out of their own backsides; it has absolutely no basis in law, history, or the Constitution.
As Justice Sonia Sotomayor wrote in her dissent:
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.
“Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent. …
“The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law. …
“Argument by argument, the majority invents immunity through brute force. Under scrutiny, its arguments crumble. To start, the majority’s broad ‘official acts’ immunity is inconsistent with text, history, and established understandings of the President’s role. Moreover, it is deeply wrong, even on its own functionalist terms.
“Next, the majority’s ‘core’ immunity is both unnecessary and misguided. Furthermore, the majority’s illogical evidentiary holding is unprecedented. Finally, this majority’s project will have disastrous consequences for the Presidency and for our democracy.” (emphasis added)
She notes that in Federalist 69, “Alexander Hamilton wrote that former Presidents would be ‘liable to prosecution and punishment in the ordinary course of law,’” adding that the Constitution gives limited immunity to Congress under the Speech and Debate Clause, but there is no such guarantee for the president.
This issue of keeping presidential immunity out of the Constitution was not an accident or oversight by the Framers; it was debated at length during the Constitutional Convention in the summer and fall of 1787 and the delegates (including Hamilton) decided to omit any criminal immunity whatsoever for the president.
As Sotomayor continues:
“In sum, the majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now. Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them.”
In response to this bizarre decision which the Republicans on the Supreme Court have forced on the American people, Senate Majority Leader Chuck Schumer has introduced the No Kings Act.
The proposed law reverses the Supreme Court’s grant of criminal immunity to Donald Trump and all present and future presidents, as well as — using the “exceptions” clause of Article III, Section 2 — stripping from the Court the power to reverse or even rule on the law.
It’s supported by more than half the Democrats in the Senate, along with independents Bernie Sanders and Angus King; not a single Republican had the courage or patriotism to sign onto it.
Call your two senators and the House member who represents you and demand passage of the No Kings Act and legislation to get the corrupt Republicans on this run-amok Court under control.
As Justice Sotomayor wrote, “with fear for our democracy,” we must all dissent.
