democratic impasse.com

J.D. Vance -- asked on CNN why he attacks students who take over buildings, while defending the January 6 mob -- diminishes the attack on the Capitol. (Recall that amid chants of "Hang Mike Pence!" the Secret Service hustled the vice president out of harm's way.) The Ohio senator says, "I'm extremely skeptical that Mike Pence's life was ever in danger."

Philip Bump notes that maybe, had the chanting mob managed to come face to face with Pence, folks would have merely shouted insults or physically assaulted him, while sparing his life. But, adds Bump, this is "a bit like pointing out that Godzilla barely did any damage to Tokyo. Okay, but let’s not lose sight of the fact that a giant monster just emerged from the ocean."

That's the perfect analogy for the scene we witnessed at the Supreme Court a week earlier during oral arguments on Donald Trump's claims of presidential immunity, as five Republican men in robes hypothesized about (or explored) all manner of things, while relentlessly refusing to focus on the post-election conduct of the former president and current presidential candidate of the Republican Party (that is, on the actual case before them).

Let's review: Donald Trump lost the 2020 election to Joe Biden by more than 7 million votes. The Democrat won the Electoral College vote 306 to 232. Trump, however, was determined to overthrow the results of his electoral defeat. From the January 6 indictment brought by Jack Smith:

Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.

Trump, the four-count indictment charges, sought to discount legitimate votes and subvert the election outcome by (1) conspiring to defraud the United States and prevent the lawful collecting, counting, and certification of the election results; (2) conspiring to corruptly obstruct an official proceeding; (3) attempting to and obstructing an official proceeding; and (4) conspiring to deny citizens their right to vote and to have their votes counted.

We witnessed much of this with our own eyes (from Trump’s tweet: "The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!" to the chant of the crowd: “Hang Mike Pence! Hang Mike Pence! Hang Mike Pence!”), while there is ample additional evidence, including in Trump’s own words, that has been made public (“I just want to find 11,780 votes.” “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.”).

Trump’s attorneys moved to have the indictment dismissed based on his unprecedented, unhistorical claim of presidential immunity. Judge Tanya Chutkan denied the motion to dismiss. The D.C. Circuit unanimously upheld her decision. The United States Supreme Court, agreeing to take the case, asked litigants to address this question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

But the five Republican men evinced little interest in the question that the court had posed. As former judge J. Michael Luttig observed:

As with the three-hour argument in Trump v. Anderson, a disconcertingly precious little of the two-hour argument today was even devoted to the specific and only question presented for decision.
The Court and the parties discussed everything but the specific question presented.
That question is simply whether a former President of the United States may be prosecuted for attempting to remain in power notwithstanding the election of his successor by the American People, thereby also depriving his lawfully elected successor of the powers of the presidency to which that successor became entitled upon his rightful election by the American People -- and preventing the peaceful transfer of power for the first time in American history.

More than once when Michael Dreeben, the attorney representing the special counsel, mentioned the specific case, one of the Republican men brushed him off. For instance, Justice Kavanaugh: "I'm not talking about the present case. So, I'm talking about the future." And Justice Samuel Alito: "You know, I'm not -- as I said, I'm not discussing the particular facts of this case ...." The justices wanted to address hypothetical future scenarios that they spun. When Dreeben tried to interject that a hypothetical didn't apply to the current case, Justice Neil Gorsuch dismissed him: "I -- I -- I understand that. I appreciate that, but you also appreciate that we're writing a rule for the ages."

Uh-huh. Let me translate: Let's dodge the live issue, should this former president be held accountable for a conspiracy to overturn the election? Instead, we'll complicate things with fantastic hypotheticals. In the meantime, we'll enable Trump's delay-delay-delay strategy to ensure that no trial takes place before the 2024 election.

In contrast to this tact by the five Republican men, recall the Burger Court's unanimous ruling in Nixon v. United States (1974). There was an immediate issue to be decided; future cases with complications that couldn't be foreseen at the time could be left for another day. A grand rule for all time was unnecessary, delaying a decision of some urgency. And furthermore: had a grand rule been constructed, it would have been complex and clunky and almost certainly would have missed the mark, so that whenever another actual case presented itself in the future, the grand rule would have to be thrown out or refashioned.

In the following exchange (emblematic of the morning's explorations) with Dreeben, Alito suggests that a peaceful transition of power is required for a stable democratic society, then offers a gobsmacking hypothetical:

JUSTICE ALITO: All right. Let me end -- end with just a question about what is required for the functioning of  stable democratic society, which is something that we all want. I'm sure you would agree with me that a  stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully if that candidate is -- is the incumbent.

MR. DREEBEN: Of course.

JUSTICE ALITO: All right. Now, if a -- 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?
And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.

Huh? This is analogous to rebuffing measures to protect the city from Godzilla because those protective measures (in a future possible hypothetical scenario) might rile up another gigantic sea creature prompting that creature to attack. (In this possible scenario, of course, we are imagining that in the absence of any protective measures, the second behemoth would be placid and friendly.) In other words, Alito's hypothetical suggests that holding a former president accountable for election subversion would make it more likely that future presidents would engage in election subversion. What a topsy-turvy notion of accountability and moral hazard.

From the last decade of the 18th century through the first two decades of the 21st, every president in the White House at the end of his term has consented to a peaceful transition of power. Except Donald Trump. But rather than focus on holding him accountable for this breach, the Republican men on the court sought to change the subject -- in this case, with a fanciful idea that expecting presidents to be accountable for their actions would do more harm than good, increasing the odds that a second president since our nation's founding would engage in felonious conduct to block the peaceful transition of power.

All five Republican men, declining to focus on the leader of their party, explored issues far afield of the events culminating in violence on January 6, and all seemed amenable to crafting (without the least textual evidence in the Constitution) some manner or other of presidential immunity. So what's going on?

Nina Totenberg, who has observed the court for decades, offers an answer. Before we get to that though, please note that in a previous post I highlighted the overreach of the Republican majority on the court for diverging from well-established conservative judicial principles in selecting cases. Although their decisions in these cases invariably advanced the agenda of the Republican Party, Totenberg declined to view the decisions as partisan. She insisted on "weird," though as I argued, Occam's razor favored partisan as the explanation. In this case too, she won't say partisan; instead, she says the five Republican men were moved by their "personal experiences."

Five of the six conservatives spent much of their lives as denizens of the Beltway. As young men, the five served in the White House and Justice Department, working for Republican presidents, often seeing their administrations as targets of unfair harassment by Democratic majorities in the House and Senate.

I can't argue with that. But let's rephrase it: all five of these men have been Republican operatives. That is, their professional careers have been tied for decades to the Republican Party. That's why they were chosen for the high court. And, though Totenberg might shrink from saying this, all five continue to act as Republican operatives. That's the current job description for every Republican nominee, screened by the Federalist Society, to the high court.

For more than half a century, the Supreme Court has been dominated by Republicans -- but a handful of the Republican justices were not sufficiently partisan for the leaders of the Republican Party. They were judicial conservatives who sometimes strayed from the GOP party line. Consider Roe v. Wade (1972) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) and a string of cases in between: the Supreme Court upheld the right to abortion, while the Republican Party disapproved. A number of Republican justices were too independent to be reliable partisans. And so the GOP began to demand more reliably partisan justices. By fair means and foul, they succeeded. Today the Supreme Court has a partisan Republican majority.

The dominant figure in the Republican Party, a man who has trashed norms that have preserved our democracy, praised and imitated authoritarians, and conspired to overturn an election that he lost, has asserted presidential immunity. He is the political Godzilla of contemporary American politics. And at least four Republican men on the court appear prepared to grant him a maximal victory in this case.

The fifth Republican man on the court, the chief justice, has been careful in the past to take two or three steps (rather than one) over a number of years to advance partisan decisions. He may balk at taking one big step this time. We'll see. He may attract one or two other Republicans to his side. We'll see.

We can be confident, though, that the court will fail to issue a unanimous decision as the Burger Court did forty-four years ago. Back then, a decision unblemished by partisanship was regarded as critical. Today, not so much. Not with this majority.

I know, I know. It was only oral arguments, not a decision handed down. But we've watched this court in action for a while now. Partisanship, not conservative judicial principles, or faithful adherence to, say, originalism or textualism, consistently rules the day with this crew. Trump is the undisputed leader of the Republican Party. These Republican justices will endeavor to protect him from accountability.

Count on it.

["It's a Bible." Quotation and photo of then-President Trump holding a Bible in Lafayette Square featured in the New York Times June 2, 2020.]

This message is from the man whom the Christian right has rallied around. I miss the days when character mattered to these folks.

Or at least that's what they said. Remember, "by their fruits ye shall know them"?

[Image: Joe Biden hogtied from video on Donald Trump's Truth Social account.]

Donald Trump, former president, under criminal indictment in four separate jurisdictions, has reveled in attacking his perceived enemies, including members of both political parties, and particularly folks associated in his mind with his criminal and civil court cases. This week Judge Juan Merchan, presiding over the New York hush money case, slapped a gag order on Trump. While Trump's attorneys claimed the presidential candidate had the First Amendment right to unfettered criticism of his political opponents, the judge observed regarding Trump's previous screeds:

Yet these extrajudicial statements went far beyond defending himself against "attacks" by "public figures". Indeed, his statements were threatening, inflammatory, denigrating, and the targets of his statements ranged from local and federal officials, court and court staff prosecutors and staff assigned to the cases, and private individuals including grand jurors performing their civic duty. The consequences of those statements included not only fear on the part of the individual targeted, but also the assignment of increased security resources to investigate threats and protect the individuals and family members thereof. Such inflammatory extrajudicial statements undoubtedly risk impeding the orderly administration of this Court.

Judge Merchan's gag order did not include himself, the prosecutor, or their families; Trump then posted a series of posts attacking the judge's daughter.

Step back to consider: a former president is attacking the daughter of a judge on social media. (Examples: one, two, three. It's hardly a surprise that the basis of the attacks is questionable.) She has, of course, nothing to do with the case. The ranting aims to divert attention from the former president's own culpability and to discredit the judiciary. And Trump's unhinged rhetoric has proven to put people in danger with real world threats and actual violence from folks under the MAGA spell.

On Friday, U. S. District Judge Reggie Walton (appearing on CNN) spoke out about his concerns regarding Trump's attacks, explaining that "it’s very disconcerting to have someone making comments about a judge. It’s particularly problematic when those comments are in the form of a threat, especially if they’re directed to ones family. I mean, we do these jobs because we’re committed to the rule of law and we believe in the rule of law. And the rule of law can only function effectively when we have judges who are prepared to carry out their duties without the threat of physical harm."

Judge Walton (appointed to the federal bench by both George H.W. Bush and George W. Bush) has experienced threats in the past. (They have increased dramatically since January 6 cases began landing in his court.) Once a threat to himself was followed the next day by a threat to his daughter, by name, and mention of his home address -- so someone "had done some research" -- though no physical harm came in that instance. He noted that other judges, whose children and other family members have been killed by litigants, were not as fortunate.

I think it’s important in order to preserve our democracy that we maintain the rule of law. And the rule of law can only be maintained if we have independent judicial officers who are able to do their job and ensure that the laws are in fact enforced and that the laws are, you know, applied equally to everybody who appears in our courthouse. And I think it’s important that as judges we speak out and, you know, say things in reference to things that conceivably are going to impact on the process – because if we don’t have a viable court system that’s able to function efficiently, then we have tyranny. And I don’t think that that would be good for the future of our country and the future of democracy in our country.

The same day, former federal judge J. Michael Luttig (appointed to the Court of Appeals for the Fourth Circuit by Bush the elder) assailed Trump's attacks on X/Twitter: "The Nation is witnessing the determined delegitimization of both its Federal and State judiciaries and the systematic dismantling of its system of justice and Rule of Law by a single man – the former President of the United States." He continued:

In the months ahead, the former president can only be expected to ramp up his unprecedented efforts to delegitimize the courts of the United States, the nation’s state courts, and America’s system of justice, through his vicious, disgraceful, and unforgiveable attacks and threats on the Federal and State Judiciaries and the individual Judges of these courts.

Later on MSNBC, Judge Luttig elaborated on the institutional harm brought by Trump's attacks:

We all have to understand that the first time that the former president began his attacks, vicious attacks on the federal courts and the state courts and their individual judges, his objective was to delegitimize those courts. So that when and if they ruled against him in the various matters that he’s been charged with, then at least his followers, if not a good part of the nation, would dismiss those rulings against him as having been politically inspired and motivated.
In particular, in most of these instances, politically inspired by President Joe Biden and his administration, and Merritt Garland and the Department of Justice. That led into what we have today, which is the fact that the former president is now actually campaigning for the presidency again on the delegitimization of America’s institutions of democracy and law. Now he’s the only one at the moment claiming that those institutions are no longer legitimate. But many of his followers believe it today. And they will cast their votes in favor of Donald Trump in November on the basis that our institutions of law and democracy are no longer functioning.
That’s the tragedy. That’s the tragedy that the nation faces right now. We’ve acquiesced in that to date. Acquiesced meaning no one, not one single person in a position of responsibility to address this issue has done so. For want of courage and want of will. And until and unless we as a nation address this issue, then we’re careening toward the effective end of the rule of law in America.

Judge Luttig acknowledged that Trump has already done great damage to the nation: "As I’ve said over the past month, Donald Trump has largely succeeded in delegitimizing both America’s democracy and elections, as well as its Constitution and rule of law."

Former Republican Congresswoman Liz Cheney also spoke out this week, warning of the danger of a second Trump term, which she suggested would be much different than his first:

I think it’s important for people to remember is the kinds of people that he will appoint. One of the things that we learned in the select committee was how often it was good and responsible, good and responsible Republican officials at the state level, also around Donald Trump, who stood up to him and said, No. And … who told him again and again, What you’re saying about these elections, what you’re saying about fraud, what you’re saying about the election having been rigged – It’s not true. They told him repeatedly and with specificity.
Those kinds of people won’t be around him again in a second term. And I think that’s also important for people to understand. He will appoint people who will do his bidding. He will appoint people – and if they are nervous about doing his bidding, he’ll offer them pardons. And he won’t, he won’t leave office. I mean, just think about – we know he tried once not to leave office. And he will have no incentive to guarantee a peaceful transfer of power and to leave office if he’s elected again.

Ms. Cheney, who served in the House leadership beside Kevin McCarthy and watched him rehabilitate Trump after initially condemning him for the violence on January 6, explains the dynamic that led elected Republicans to embrace -- and enable -- a lawless, autocratic leader.

You have some elected Republicans who believed that he would just disappear. Who thought, you know, we don’t have to speak against what he did. We don’t have to actually stand up to him because, you know, certainly he will fade away. And obviously that didn’t happen.
And I think when people look back at this time, at the history of this time, those elected officials who know the danger that he poses, who know that what he’s saying is a lie, who know that he threatens fundamentally our democratic system, but yet have enabled him and have gone along, you know they will be judged very harshly by history. Because he can’t succeed without them. And the role that they’re playing is very irresponsible and reckless and dangerous.

The elected leaders' actions convinced the Republican base. (This represents the critical failure of the Republican Party, as described by Levitsky and Ziblatt, leading to erosion of our country's democratic institutions. "Put simply, political parties are democracy's gatekeepers." The GOP didn't push back to close the door to lies and threats of violence.) Exit polls from Super Tuesday reveal 58- to 65-percent of Republican voters believed that Trump won the 2020 election. Cheney again:

I think that what we saw happen was sort of this notion Republican elected officials excused the behavior, enabled the behavior. And by doing that it sort of, it created a situation where I think voters thought, Well, you know it must not be that he’s that dangerous. Because if he were then, you know, you would have more people saying so.
And, look, I think the Republican Party leadership itself had to make a choice. Many times they were faced with a choice between, you know, doing what was right, between furthering democracy and the Constitution, or embracing Donald Trump. And they chose Donald Trump. And it’s that, that is situation that we haven’t, we have not seen before in the history of the country.

In November the country will choose. It will choose between a small-d democratic candidate, committed to the Constitution and the rule of law, and a man who has based his campaign on lies, celebrations of violence, and repudiation of our democratic institutions.

As Jonathan Chait notes, Trump's racist attacks, threats of revenge, and howls that his election losses, past and future, are illegitimate have elicited this response from the GOP establishment: his campaign is undisciplined, which is pointlessly alienating swing voters.

But Trump's strategy, in embracing insurrectionists with promises of pardons and pledging to jail opponents (while sweeping aside allies displaying insufficient zeal), is to crush out any traces of dissent within the party. His aim is clear. He is signaling to all who will heed, especially those who will serve in a second Trump administration. He won't be bound by Constitutional or legal constraints. And neither will those who do his bidding.

An effective Trumpist government has difficulty functioning under the rule of law. If Trump’s staffers and allies believe that carrying out his orders, some of them plainly illegal, will lead to prison or other punishment, they will again hesitate to follow them. That belief is one he has to stamp out, especially as he faces multiple criminal charges for his attempts to steal the election in 2020.

Colorado, among a number of states, has sought to disqualify Donald Trump from the ballot based on a straightforward reading of Section 3 of the 14th Amendment -- the insurrectionist clause. Yesterday, in Trump v. Anderson, the court ruled 9-0 that no state had the authority to do so. This was a victory for the former president who strived mightily to overthrow the results of his 2020 election defeat, but the five Republican men on the court gave him (and his and their party) a bigger victory. Their decision went much further than necessary to settle the dispute at hand.

And in the course of unnecessarily deciding all of these questions when they were not even presented by the case, the five-Justice majority effectively decided not only that the former president will never be subject to disqualification, but that no person who ever engages in an insurrection against the Constitution of the United States in the future will be disqualified under the Fourteenth Amendment’s Disqualification Clause — as the concurrence of Justices Sotomayor, Kagan, and Jackson witheringly explain. -- J. Michael Luttig

The concurrence of Justices Sotomayor, Kagan, and Jackson, objecting to the aggressive overreach of the majority, begins by quoting Chief Justice John Roberts (from the Dobbs decision): “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” The five Republican men were intent on deciding more (as Judge Luttig noted).

Reaching aggressively well beyond necessity is a pattern with the current Republican majority on the Roberts/McConnell Court. As Nina Totenberg suggested, “You do see something of a court that on some issues is very aggressive. And you’ve seen that in other areas where there isn’t even a decision by a court, and they take the case to review it. Now that’s weird.”

Weird? Well, no. That suggests something odd or even anomalous. By seizing Occam's razor we can carve out a better explanation: partisanship. Totenberg resists asserting that the court is partisan, but partisanship provides an account that's simpler and more clarifying than weird does and is thoroughly well-supported. An explanation that fits this Republican majority like a glove.

At one time, conservative judicial principles included judicial restraint, stare decisis, and respect for the elected branches of government. That's not in fashion at this court. Not by a longshot. Instead of limiting its decision to what is necessary to dispose of the case, it went much further, as Justices Sotomayor, Kagan, and Jackson write in their concurrence:

Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future. In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oathbreaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment. Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve this case. Yet the majority goes further.
Even though “[a]ll nine Members of the Court” agree that this independent and sufficient rationale resolves this case, SOTOMAYOR, KAGAN, JACKSON, JJ., concurring in the judgment 2 TRUMP v. ANDERSON SOTOMAYOR, KAGAN, and JACKSON, JJ., concurring in judgment five Justices go on. They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Ante, at 13. Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment.

In other words, straying from the text of the amendment and imposing a judgment unsupported by any ruling precedent, the five Republican men precluded any action based on the 14th Amendment's prohibition to disqualify Trump or any other oathbreaking insurrectionist from the ballot apart from the five-man majority's specified "appropriate legislation" by Congress. They invented this constraint. That might seem weird to the uninitiated. But we can see that it serves a partisan purpose.

The 14th Amendment states that the disqualification of insurrectionists can be overcome by a 2/3 majority vote by both the House and the Senate. The justices, yesterday, ruled that if a majority in either house can block appropriate legislation, then the insurrectionists may serve. That's a perverse result, hardly faithful to the words or intent of the 14th Amendment. (These Republican justices often ignore, dilute, or distort the Civil War amendments.)

And as we know, near the end of the McConnell era when it takes 60-votes to pass legislation in the Senate, a minority of Senators may block appropriate legislation. In the other chamber, the Republican Speaker refuses to even bring up legislation that would pass with comfortable majorities, but is opposed by his far right colleagues. Minorities in both houses can block the will of majorities. There will be no appropriate legislation anytime soon. This 5-4 decision debilitates the insurrectionist clause.

The court ruled, without a case before it, that in any future case, no other federal court could enforce the 14th Amendment's insurrection clause. Even if, say, an oathbreaking insurrectionist were to be convicted of his/her actions in a court of law, no court could rule him/her off the presidential ballot. The Republican Supreme Court majority has preserved for itself the authority to decide -- ruling out of order a number of other possible paths to making a decision in a democracy, including by Congressional action (apart from "appropriate legislation" by the lights of the five Republican men) -- and ruling in a way that transparently offers an advantage to the candidate of the political party that appointed the five men in the majority.

The five-man majority is doing the bidding of the Republican Party, the party that planned and participated in the January 6 riot at the Capitol and conspired by other means over many months to overturn the 2020 election. If any elected officials participated in actions in that riot or that conspiracy, the five Republican men on the court have rendered it impossible to bar them from a ballot for president based on the insurrectionist clause.

The court reached out beyond what was necessary to decide the case in order to preclude accountability (most especially for the "petitioner," Donald Trump): "They decide novel constitutional questions to insulate this Court and petitioner from future controversy."

To reiterate, this is a pattern. In another 14th Amendment case, Rucho v. Common Cause, the Roberts Court decreed that gerrymandered legislative districts that gave one political party an advantage -- no matter how extreme -- over another, passed constitutional muster, ruling that the subject was thereby removed from the jurisdiction of the federal courts. Americans were denied constitutional remedies to these undemocratic assaults on voting and elections. Like yesterday's decision, this one favored the Republican Party, which in 2024 relies heavily on voter suppression and gerrymandering to maintain its power.

The decision in Trump v. Anderson is equally outrageous. It seeks to help Donald Trump, who still refuses to accept his loss to Joe Biden in 2020 and is putting on a clinic on delay-delay-delay for escaping legal accountability for criminal conduct. The Supreme Court has invented in this case a new firewall for him -- and for any and all oathbreaking insurrectionists (who in the Trump era reside overwhelmingly in the Republican Party). In reaching beyond what was necessary to decide this case, the Republican majority has tied the hands of Trump's political opponents.

Let's step back for a minute to look at the big picture: The Republican Party, which has won the popular vote for president once in the past 20 years -- George W. Bush's 2004 victory -- increasingly relies on the courts, the unelected branch of government, to secure public policy victories. And at the top of the federal judiciary, the Supreme Court, which Republicans have packed with ideologues, increasingly places constraints on the public policy options available to elected officials and individual citizens.

In a previous post, I quoted Jan-Werner Müller's book What Is Populism? Müller describes how Fidesz, Victor Orbán's political party, crafted a partisan constitution in Hungary. The result of their efforts: "the constitution sets a number of highly specific policy preferences in stone, when debate about such preferences would have been the stuff of day-to-day political struggle in non-populist democracies. Moreover, it excluded opposition parties in a double sense: they did not take part in writing or passing the constitution, and their political goals cannot be realized in the future, since the constitution highly constrains room for policy choices. In other words, under the new regime, the constitution makers can perpetuate their power even after losing an election."

As I wrote then:

Whether or not we regard the contemporary Republican Party as populist, Republicans -- long before the Trump era -- have followed the populists' strategy described by Müller: crafting constitutional constraints and commands to favor their party and to disadvantage their political opponents. The GOP has not, of course, sought to re-write the words of the United States Constitution. Instead, the party, through capture of the courts -- and domination of the nation's highest court -- has sought to constrain opponents of the Republican agenda through wholesale reinterpretations of the constitution, creating novel constitutional rights (that advance the Republican agenda), while brushing aside well-established constitutional judgments (effectively ruling Democratic policy choices out of order).

The rulings of SCOTUS's Republican majority too often foreclose change through the political process as practiced in a democracy. Campaigns and elections (and much more) are the stuff of politics. The process ensues as the winners, determined at the ballot box, endeavor to put public policies in place to fulfill their commitments. Yet a determined 6-3 or 5-4 majority, acting with indifference to election outcomes, may short-circuit "the stuff of day-to-day political struggle" (as Müller put it) . . .

This Republican majority has shed the conservative commitment to judicial restraint and stare decisis, it has endeavored to preclude constitutional remedies to assaults on voting, elections, and legislative apportionment, and it has diminished the authority of the other two branches of government to address public policy issues.

That's not weird. That's partisan. It is also profoundly undemocratic.

The Republican majority on this Supreme Court continues to craft a partisan constitution.

Donald Trump has hitched his 2024 campaign for president on denial that he was the loser in November 2020. This is a lie. He lost by millions of votes and Biden defeated him in the Electoral College.

Trump's Department of Homeland Security reported that, “The November 3rd election was the most secure in American history." Bill Barr, Trump's attorney general, concluded after the election, "To date, we have not seen fraud on a scale that could have affected a different outcome in the election." Furthermore, of the 62 lawsuits filed by January 6, 2021, Trump lost 61; the lone victory, a small one in Pennsylvania, didn't change his loss there.

The Big Lie has been oft repeated by many MAGA fanatics. The My Pillow Guy, Mike Lindell, has been among the most clamorous liars, going so far as to offer a $5 million prize to anyone who could prove him wrong. Someone did: a cybersecurity expert (who voted for Trump in 2016 and 2020). Lindell doesn't want to pay up, but less than two weeks ago, a court ordered him to do so.

Last month a prominent election denying group, Georgia's True the Vote, admitted in court that, contrary to its claims that it could prove voter fraud, it had no evidence at all to establish this falsehood. True the Vote's lie was the basis of Dinesh D'Souza's "2000 Mules," his fraudulent 'documentary.'

Keri Lake, who continues to promote Trump's lie about 2020 also continues to deny her 2022 defeat for governor of Arizona. Steve Bannon, who acknowledged before the November 2020 election that Trump would claim voter fraud, also continues to promote Trump's 2020 lie. At CPAC last week, Bannon ranted that Joe Biden is "an illegitimate regime-head. He's a usurper . . . ." He was just getting warmed up. After pronouncing Donald Trump as among the three greatest presidents in U.S. history (with Washington and Lincoln), who is destined to "drive the vermin out of 1600 Pennsylvania Avenue," he declared: "Biden, you and your crime family are nothing but trash, okay."

But Bannon has also followed Lake in denying another, more recent GOP defeat. Last month a Democrat won the special election in New York to replace Republican fabulist George Santos. This election result was entirely uncontroversial. There is no evidence of fraud. There were no claims of fraud, until Bannon, who spun a conspiracy theory to deny the result: "They stole this election in New York."

Why the lies? Because election denialism -- expressed again and again in strident terms; not just about one election, but about election after election when the GOP loses -- is critical to the authoritarian project, in which Bannon plays a leading role. He is in the vanguard of the white nationalist movement to bring down democracy.

The continual stream of lies riles up the base. Many MAGA adherents are sealed within an information bubble so they may actually believe the lies, while others don't bother with truth or falsity, they're just onboard with the fight. The lies delegitimize MAGA opponents: the "vermin," the "trash." Democratic victors are "illegitimate," "usurpers." But there's something else more fundamental:

Elections themselves are delegitimized. When the GOP loses, that's proof of fraud, of a rigged outcome, of being cheated out of victory. And proof as well that the opposition is vile, unworthy of respect, deserving the contempt that MAGA leaders heap on them. Delegitimizing elections serves to dehumanize political opponents.

Democracy depends on losers agreeing that they lost, fair and square. Accepting defeat, but striving to win the next time around. Democracy depends on regarding ones opponents as fellow Americans with whom one has differences, not as vermin or trash.

Free and fair elections are the coin of the realm for democratic governance. Deny legitimacy, refuse to concede defeat, and democracy loses. Trump, Lake, Bannon and other MAGA leaders spread their lies to undermine trust in elections.

When an angry faction of Americans loses trust in elections, then they are more likely to find recourse in illegal, even violent action. That's one lesson of January 6. It's a lesson that hasn't been lost on the evangelists of election denialism. These tribal leaders are paving the way to violence.

In December, the Justice department asked the Supreme Court to rule on Trump's immunity claim on an expedited basis. The court sat on its hands. The case went to the Sixth Circuit, where a three-judge panel ruled unanimously against Donald Trump's claim of absolute immunity from criminal prosecution. That decision was widely regarded as well reasoned. Moreover, most legal observers regard Trump's claims as farfetched and certainly lacking any support from the Constitution or 235 years of American history.

The Supreme Court is within its lane in deciding to weigh in on this issue, but 4 votes would have been sufficient to take the case on appeal. At least 5 votes were required to grant a stay -- freezing all activity in Judge Chutkan's courtroom on Trump's January 6 indictment.

When the court received the appeal of the Sixth Circuit judgement, it waited two weeks to respond and scheduled oral arguments for late April. A decision is not expected before June, at the earliest. This timeline makes a trial this summer or late fall, before the November election, highly unlikely (though still possible, depending on the decision and a host of other factors).

Should we suspect that the Republican-appointed justices are deliberately acting so as to aid and abet the delaying strategy of their party's presidential candidate? What else are we to think?

The Roberts Court, circa 2024, is far and away the most partisan Supreme Court in my lifetime (1950-present). Republicans hated judicial activism during the heyday of the Warren Court, but -- hey -- he was a Republican. The court's controversial decisions, from Brown v. Board of Education to Reynolds v. Sims to Miranda v. Anderson, et al., were not decisions that boosted the agenda of one party over another. Though they may have been regarded as liberal, this was the era of a Democratic Party of the Solid South. Republicans had not yet adopted the Southern Strategy and abandoned civil rights. The decisions were not partisan.

Even as recently as Bush v. Gore, when the Rehnquist court stepped in to stop the State of Florida from counting ballots and decided the 2000 presidential election, giving it to George Bush, it was not yet considered a partisan court by most observers. This, even though it was dominated by Republican-appointed justices and a Republican majority. Red vs. Blue America was just becoming a thing. Al Gore didn't hesitate to endorse the court's ruling, which he considered legit.

Those days are past. The Trump/McConnell Court has been shown to be highly partisan. Even before the Trump justices were put into place, it had become clear to conscientious observers that harmony with the agenda of the Republican Party, not strict constructionism, textualism, or original intent, most often carried the day with the court. In the Roberts era, in many controversial decisions -- District of Columbia v. Heller, Citizens United, Shelby County v. Holder, among a slew of for instances -- the GOP agenda won 5-4, with Republicans in the majority in each case. A bit later, with a change in the justices in place, the winning rulings for the GOP often became 6-3.

By 2024, the Federalist Society; dark money campaigns; scripted talking points by Republican members of Congress, FNC, and lesser conservative media; billionaires providing the taste of an oligarch's lifestyle to selected justices; the McConnell maneuvers in the Senate; and the extinction of Republican-appointees who more than rarely strayed from the party line to vote against the GOP agenda -- all this has brought us a court that is indelibly Republican. Not conservative: Republican. We can see it every term in their decisions, as they roll back precedents and, looking backward at what they imagine as a more glorious American past, impose their views on all of us who share the country today.

These justices understand the context of Trump's appeals. They know the stakes riding on his bid to return to the White House. They're not stupid. They could have acted with some alacrity so he was more likely to face a criminal trial for his bid to overturn his loss in 2020 before he goes before the voters on November 5.

They chose to act otherwise. We have every reason to assume the worst of the Republican justices. They most assuredly do not deserve the benefit of the doubt.

A brief note on the attention economy:

Remember the wild plot to kidnap Michigan Governor Gretchen Witmer? Two investigative reporters, who have been covering the story since it happened, discovered over time that it was "more complicated" than it had first seemed. This, because "an informant and one FBI agent were charged with crimes, another was accused of perjury, and a third was found promoting a private security firm." Did the extremists arrested for the plot pose an actual threat, or were they egged on by undercover agents and at least a dozen confidential informants?

Tucker Carlson and others on the right saw "a setup by the government" and leapt from there to a grand deep state conspiracy. The reporters, who describe painstakingly developing sources over several years to learn what was going on, are more circumspect, more closely connected to actual evidence. Describing a possible setup in Michigan doesn't entail losing oneself down an ideological rabbit hole. Some of their sources and erstwhile fans on the right were baffled, as one of the reporters explains (using a concept, the attention economy, that explains much of the appeal of the web):

There were a couple of moments where people on the right had taken that story and twisted it to fit their narrative. They would say things that I didn’t agree with, and I would challenge them on it. They’re DMing me and one of them expressed a genuine bewilderment and surprise that I didn’t agree with her. She’s like, “You and Jessica have done such amazing work on this story. How could you not believe that the whole thing was a dry run for Jan. 6? How could you not understand that this was part of the deep-state conspiracy?” She wasn’t trolling me. She genuinely was flustered and couldn’t understand why I didn’t see that. To me, it was a little glimpse into the way that the attention economy perverts these stories. This woman massively built up her social media profile based on ranting about this case for two years. And the way she talked about it has evolved and evolved to the point that it became just crazy talk. [My italics.]

Although I don't recall hearing the phrase 'attention economy' before, the idea is familiar. Our attention is a limited resource. We can only spend a finite number of hours on the web. Social media sites that make money on advertising, or have something to sell you directly, have strong incentives to keep you online -- to view the ads, to make online purchases, to increase your commitment day by day. To keep you coming back for more. Sophisticated algorithms play on human nature to hook you.

Once you're caught and looking at the same constellation of websites every day, you lose sight of alternative sources of information and broader perspectives. FBI abuses in a criminal case become an all-pervasive deep state conspiracy. Eventually, what you say becomes "just crazy talk."

The same principles of the attention economy that apply to the web are also applicable to Fox News Network and its cable rivals. Spend enough time there (while excluding dissonant points of view) and you'll end up uttering crazy talk.

Just days before the Iowa caucuses, Ron DeSantis complained that conservative media, led by Fox News, were intent on pleasing their viewers (and readers) to keep ratings (and clicks) and profits high, which affected the network's (and websites') coverage of political issues. In other words, though DeSantis would be loathe to admit this: the conservative media's coverage is far from the standards that traditional journalism aspires to.

"He's got basically a Praetorian Guard of the conservative media. Fox News, the websites, all this stuff. They just don’t — they don’t hold him accountable because they’re worried about losing viewers and they don’t want to have the ratings go down.”

Well, the guv hasn't changed his mind. From yesterday's Tampa Bay Times, reporting on remarks made by DeSantis to a small group of donors:

DeSantis said the conservative media’s “business model just doesn’t work if they offer any criticism of Trump,” according to NBC.
“I mean, he said at some point he could shoot someone on Fifth Avenue and not lose a vote,” DeSantis said. “Well, I think he could shoot someone on Fifth Avenue and the conservative media wouldn’t even report on it that it had happened.”

That observation accurately critiques FNC et al. and the Trump cult that the Republican Party has become.

"Welcome to the end of democracy. We're here to overthrow it completely.
We didn't get all the way there on January 6, but we'll endeavor to get rid of it and replace it with this, right here"—holds up a necklace with a cross. "We will replace it with this, right here." -- Jack Posobiec at the Conservative Political Action Conference, February 22, 2024.

Jack Posobiec at CPAC: “Welcome to the end of democracy. We are here to overthrow it completely. We didn’t get all the way there on Jan. 6, but we will endeavor to get rid of it.”

Trump’s Republican Party openly wants to end democracy. We must stop them. pic.twitter.com/UITxEth0im

— Republican Voters Against Trump (@AccountableGOP) February 22, 2024

Posobiec, who regards Roger Stone as a mentor, "has worked with a global network of extreme far-right and pro-authoritarian figures in his activism." He "has collaborated with white supremacists, neo-fascists and antisemites for years, while producing propaganda that Trump and his inner circle have publicly celebrated." The Southern Poverty Law Center, which has reported on his activities, credits him as perhaps "the most active spreader of disinformation among all internet performers in the far-right social media ecosystem." He is deeply involved in spreading conspiracy theories, disinformation, and Russian intelligence-linked propaganda. (These quotations are from a report by the SPLC; this link provides a wealth of additional details about Posobiec's activities and connections.)

Steve Bannon, who moderated the panel that included Posobiec at CPAC, laughed and responded, "All right. Amen," after Posobiec spoke.

They were both smiling, but it is not a joke. Posobiec believes that a Christian-led nation, even by a man hardly emblematic of Christ (and followers whose views are antithetical to the Gospel), is preferable to a democratic republic. They couldn't be more serious. Their views are steeped in white nationalism. They are prepared to overthrow America's democratic institutions to get their way.

“It’s time for real Christians to stand up and take this country back. … This country is not ours. This country is his. He is king. God is king. Christ is king. And, the minute we get that back, we get our country back.”