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“Over the last month, you can feel that something important has happened. A tipping point has been reached. Republicans who used to act like they had not heard or read the latest Trump outrage now show up at his trials and parrot his most vile lies. The GOP now openly extol the virtues of political prosecutions and disparage the rule of law.” -- Marc Elias (as quoted in the New Republic)

Recently two conservatives, Jonah Goldberg and George Conway, have characterized Republicans' lying as an addiction. From The Hill, June 13:

“It’s the logic of an addict. And they’re feeding an addiction,” Goldberg said, “And they’re feeding an addiction — which is, eventually, you get used to the dosage, you have to up the dose.”
“The outrage machine that Trump raises money off of and uses as an ATM constantly needs the rhetoric to go to 11, 11.1, 11 — just keep going higher because otherwise people become inured to it,” he added.

Conway had used the same phrase earlier, when he called out Scott Jennings in a heated give and take on CNN. From The Wrap, May 31:

“I mean, look, Scott’s lying,” he said, exasperated. “And that’s the problem with the Republican Party. It is continually addicted to lies.”

Republican lawmakers, candidates, operatives, media stars -- all the MAGA folks with public platforms defending Trump -- are willing to lie. And it's natural for the Republican rank and file to accept what they hear from their leaders. But -- even if we ascribe special fault to party leaders for moving the GOP in an authoritarian direction (as Levitsky and Ziblatt do) -- does that relieve the Republican base of responsibility for accepting the lies?

Watching the recent evolution of the Republican Party, as it has become a wellspring of increasingly outrageous lies, lies that are "obviously untrue and obviously destructive," Peter Wehner has come to see devotion to Trump, and the willingness to accept whatever he says, as a reflection of a person's character. Writing yesterday in the Atlantic, he suggests that folks all-in with Trump's lies, which have grown more extravagant and damaging, are "willfully blinding" themselves: "choosing not to know."

Throughout my career I’ve tried to resist the temptation to make unwarranted judgments about the character of people based on their political views. For one thing, it’s quite possible my views on politics are misguided or distorted, so I exercise a degree of humility in assessing the views of others. For another, I know full well that politics forms only a part of our lives, and not the most important part. People can be personally upstanding and still be wrong on politics.
But something has changed for me in the Trump era. I struggle more than I once did to wall off a person’s character from their politics when their politics is binding them to an unusually—and I would say undeniably—destructive person. The lies that MAGA world parrots are so manifestly untrue, and the Trump ethic is so manifestly cruel, that they are difficult to set aside.
If a person insists, despite the overwhelming evidence, that Trump was the target of an assassination plot hatched by Biden and carried out by the FBI, this is more than an intellectual failure; it is a moral failure, and a serious one at that. It’s only reasonable to conclude that such Trump supporters have not made a good-faith effort to understand what is really and truly happening. They are choosing to live within the lie, to invoke the words of the former Czech dissident and playwright Vaclav Havel.

Those of us outside the MAGA world should be pragmatic if we wish to preserve our democracy. Most Americans are not cultists and are not willfully blind. They are people of good faith who care about our country, whether or not they think much about politics or democracy. And these are the folks we need to engage between now and November 4, when we will all be making a choice for the country we wish to live in.

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Clarence Thomas has a gun fetish. The other Republican-appointed members of the 6-3 majority are on board with that in service of an arrogant, undemocratic crusade to dominate the elected branches of government.

To justify legalizing bump stocks, Clarence Thomas literally copied and pasted materials from an extremist pro-gun group whose violent rhetoric makes the NRA look moderate.
This is who has the Supreme Court's ear these days. -- Mark Joseph Stern

Yesterday, in a tortured ruling in Garland v. Cargill, Thomas took it upon himself to bone up on the mechanics of machine guns and bump stocks, overruling professional expertise at ATF and the Executive Branch, and the judgment of Congress. As Stern and Dahlia Lithwick note, Thomas relied on a gun group more radical than the NRA (which did not oppose the regulation that the 6-3 majority overruled). In addition to making us all less safe and secure, Thomas's decision also did violence to the plain text of Congressional legislation outlawing machine guns.

In dissent, Justice Sonia Sotomayer eviscerates his results-driven reasoning related to "a single function of the trigger" and Congress's clear intent, and observes that bump stocks convert semi-automatic rifles into machine guns.

Today, the Court puts bump stocks back in civilian hands. To do so, it casts aside Congress’s definition of “machinegun” and seizes upon one that is inconsistent with the ordinary meaning of the statutory text and unsupported by context or purpose. When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires “automatically more than one shot, without manual reloading, by a single function of the trigger.” Because I, like Congress, call that a machinegun, I respectfully dissent.

Deadline White House presented a brief video of how a bump stock works for its viewers:

The bump stock demonstration begins at 11:31. Jamie Raskin's comments begin at 14.

Congressman Jamie Raskin commented on the decision:

The Supreme Court has been on a rampage with respect to the ability of states and localities to pass reasonable gun safety measures. And they turn the rhetoric of originalism on and off according to their ideological purposes. So nobody is saying that the flintlock musket is the only protected weapon because that's what existed in the 18th Century.

He adds that numerous gun safety measures (such as universal background checks) are highly popular, but are blocked by allies of the Republican Party. I'll add: And by this Republican-controlled court.

In previous posts I've commented on another 6-3 decision written by Thomas (New York State Rifle & Pistol Association v. Bruen) that overturned a century old state law that no court had thought to overrule, and on the atrocious 5-4 decision that put the court on this path (District of Columbia v. Heller) written by Antonin Scalia before six Republican ideologues dominated the court. (Two Republicans joined two Democrats in dissent in that ruling; with Trump's nominations, courtesy of Leonard Leo, Republican justices have become far less likely to oppose the agenda of the Republican Party, so now we're at 6-3. Former Justice John Paul Stevens, who dissented from Heller wrote about guns and the Second Amendment in the Atlantic in 2019.)

I am heartsick about the decisions of the Roberts Court on guns and nearly talked-out about the corrupt SCOTUS Republican majority that's in place. In lieu of saying more, I'll offer some links:

"The Republican supermajority on the Supreme Court is on a tear in a war against democracy" includes comments on the Bruen decision, as does "Partisan and movement activists on the right are bound by a common war against democracy."

"Uncomfortable Americans are fearful and, increasingly, armed and dangerous" references a vicious cycle: more guns means more death.

"Guns, military assault rifles, mass shootings, and a terrorized population: a GOP success story" notes that mass shootings and mass deaths are the result of a concerted campaign and public policy decisions by Republicans; "Actions have consequences. Republicans own America’s glut of guns and of mass shootings" reaffirms this view via a cartoon.

These two posts step away from guns to make a more general point about this Republican dominated court: "Supreme Court’s supermajority overrules the facts and the law to benefit the GOP" and "Partisan and movement activists on the right are bound by a common war against democracy."

The Roberts Court is dominated by five Republican men who have been and continue to be, first and foremost, operatives of the Republican Party (while Justice Amy Coney Barrett mostly goes along for the ride). That, not a devotion to the Constitution or the rule of law, explains the direction and decisions of the court. Republicans have won the popular vote for president in one election since 1992, while Congressional Republicans in recent years have largely abandoned a positive agenda (with the exception of pursuing unpopular public policies, such as lowering taxes for the rich). The Congressional GOP is devoted not to legislative accomplishments, but to gridlock and performative gestures to rile up their base.

So too the Roberts Court. On and off the bench, Alito and Thomas (with their wives) serve as trolls, while the Republican majority seeks primarily to strip from the other two branches of government the public policy tools to enact constructive legislation that the Republican Party opposes. The Roberts Court's primary objective: to disable democratic (small-d and capital-D) public policy initiatives. The court is willing to overturn precedent, to run roughshod over the Fourteenth Amendment and other provisions of the Constitution whenever it pleases, and (as Raskin noted) to "turn the rhetoric of originalism on and off according to their ideological purposes."

This is an aggressive, expansive agenda, unbecoming a 'conservative' court. If this results in more Americans dying of gun violence, so be it.

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Americans who rely on Fox News Channel (and other sources that comprise the conservative media universe) have views – including beliefs about matters of fact that can be judged true or false based on observable evidence – that differ from folks who rely on outfits that are not wedded to the GOP and movement conservatism.

Fox, of course, is willing to lie to advance a partisan agenda (as demonstrated by the $787 million settlement with Dominion). Selective coverage (or none at all) of issues that would threaten GOP talking points is another hallmark of Fox and of conservative media. Both strategies are, of course, effective at shielding faithful viewers (and loyal MAGA voters) from unwanted points of view.

Unsurprising examples of the divergence of beliefs by folks relying on FNC vs. CNN/MSNBC:

After his fraud conviction last week in New York, Donald Trump and the leadership of the Republican Party furiously advanced a conspiracy theory (which Trump has pumped for many months): that the Trump prosecution and conviction were directed by President Biden and his justice department. Anyone with passing familiarity with federalism, including most Republican members of Congress and the starring cast on Fox, understands that this is another lie. But for anyone relying on FNC (et al.) repetition of the lie over and over and over again serves to convince, even in the absence of evidence or logic. Eighty percent of Republicans profess to believe this conspiracy theory.

From Trump's big lie – that Joe Biden lost the 2020 presidential election, to denial that Trump tried to overturn that election, Republican views are often out of step with well-established factual matters. In a poll taken last summer only 49 percent of Republicans agreed that Trump (never mind his guilt or innocence in the classified documents case) possessed even a single sensitive document at Mar-a-Lago.

And just today we learned that, when asked whether or not Donald Trump should have immunity from criminal prosecution for actions taken while president, 67 percent of Republicans agree. When asked whether U.S. presidents (without mention of Trump) should have immunity for actions taken while in office, only 45 percent of Republicans agree. This is hardly surprising, is it? After all, the Republican base who would stick with Trump even if he shot someone on Fifth Avenue would probably not (in general, without mention of their leader) approve of murder.

Aaron Blake summarizes, "Voters often come to believe wacky things that excuse their allies and implicate their foes. But the degree to which these things have become articles of faith on the right — literally — bears no modern precedent." Although Blake offers an exoneration of sorts to Republican lawmakers (who may only "seed suspicion," rather than tell a straight up lie), I believe GOP Congressional behavior is indecent, equally contemptuous of truth and of voters. These men and women are choosing to advance their careers and their leader – and his authoritarian aspirations. Dodging, weaving, implying lies that are unspoken as a way to maintain power is despicable.

And, as much power as Fox has, and Sinclair, and the whole conservative media universe – the lies stick with the base only because the leadership is on board with the lies, the misdirection, the gaslighting, and the con man at the head of the party.

Moreover, as time passes, as memories are buried, as gaslighting replaces actual history, and as the November 2024 election approaches, GOP lawmakers are increasingly willing to deceive – the same men and women who fled for their lives on January 6, 2021. House and Senate Republicans, even members of Congress who denounced Trump in 2016 and 2021 as unfit to govern, gleefully celebrated his triumphant return to Capitol Hill.

  • “He saw me in there and he was, like, ‘Hello, Marjorie.’ He is always so sweet.” – Marjorie Taylor Greene
  • “He said very complimentary things about all of us. We had sustained applause.” – Speaker Mike Johnson
  • “He was the team captain. And we were glad he was leading.” – Lindsay Graham

Buddy Carter, who represents CD 1 in Georgia, summed up the Trump/Congressional confab succinctly: “It was about winning.”

Yeah. That's exactly what it's about. These guys will do or say anything to stay in the good graces of Donald J. Trump, their leader. It protects them in Republican primaries, it aids their fund raising, it helps keep them in power.

It's up to the rest of us to deny them that last calculation.

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This veteran stormed Normandy on June 6, 1944 in a battle that helped defeat a dictator who threatened Europe and the world. He understands that in 2024 Ukraine is the leading edge of the battle with another despot threatening democratic countries worldwide.

The America Firsters, who resisted standing up to Hitler, were dead wrong in the '30s and '40s. The new generation of American Firsters, led by someone who extols the Russian strongman, are dead wrong today. Putin's aggression against Ukraine undermines the security of our democratic allies and of American democracy.

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Donald Trump can say almost anything with a complete disregard for truth outside the courtroom. And it has surprised even him (at least at one time) that his voters believe him, or willingly brush aside the lies.

I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters, okay. It's, like, incredible.
-- Donald Trump at a January 23, 2016 campaign rally

That statement appears to be even more true today. But within the courtroom, as many observers have noted, there are standards of evidence. Having Fox News, Steven Bannon, members of the GOP congressional caucus, and legions of MAGA voters in your corner doesn't cut it in a court of law.

Finally, a tawdry criminal case with a diverse cast of characters (including an adult movie actress, a tabloid publisher, a fixer employed by Donald Trump for more than a decade, as well as a string of other associates who have done, and in many cases continue to do Trump's bidding) and mountains of evidence reached the courtroom. And a jury of 12 convicted Trump.

Trump's legal strategy in a set of four criminal indictments has been to delay-delay-delay, while he has pursued a political strategy of besmirching everyone associated with the cases and doing his utmost to undermine the justice system and the rule of law. And, as with a shooting in plain sight on a public thoroughfare, the MAGA entourage and what counts as leadership within the GOP are with him.

Steven Levitsky commented in the Washington Post (the print edition's headline, "Despite outcome of trial, attacks deal a 'body blow' to judicial system," appears in the picture atop this post):

 “What’s notable here,” said Levitsky, co-author of the book “Tyranny of the Minority: Why American Democracy Reached the Breaking Point,” “is that the entire Republican Party is marching in lockstep, along with right-wing media, claiming that the legal process has been weaponized, and therefore eroding public trust in a really vital institution.”
. . .
“It is unfortunate that far and away the least important case is the one that’s being tried before the election,” Levitsky, the Harvard professor, said as the trial was underway. “The problem is that not even the best institutions in the world can function well in the context of extreme polarization, particularly when one party has turned against democratic institutions. And so extreme polarization and extreme radicalization will undermine and destroy even the best of institutions. And that’s what we’re seeing in the United States.”

It is a perilous time for our democratic institutions, which, as we look toward November 5, include free and fair elections and the peaceful transition of power.

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Samuel Alito is the most transparently partisan operative on the United States Supreme Court (with Clarence Thomas a close second). And Alito is drenched in the bugbears and argot of MAGA and the Christian Right. (He might point to Mrs. Alito, but c'mon, he has a thorough grasp of the symbolism of the flags flying at his homes.) For most of us, there's much on FNC and OANN that we can't understand, because we're not acquainted with a range of right wing tropes that might as well be in code. While there is a slew of webpages where true believers connect, they represent a radical subculture that is lost on most Americans.

But it's not possible to believe that the political significance flying an American flag upside down or hoisting that Appeal to Heaven flag -- both prominently displayed by January 6 rioters -- was unknown by Mr. and Mrs. Alito. The family -- just like Clarence and Ginni Thomas -- are immersed in the culture of the anti-democratic MAGA world. And, in post-2016 America, the MAGA world is the province of the Republican Party.

The flag flying is a way to troll Americans who reject Trump and the authoritarian GOP. Much like the pilgrimage to a New York courtroom of Republican elected officials and wannabes who put on their red ties, stand before the cameras, parrot Trump's attacks on the justice system, the judge and prosecutor, and the Biden administration (in tandem with Trump) and then trash the witnesses and - yes - even the judge's daughter, because Trump can't do that without violating his gag order, these flag wavers are smiting the libs, doing a MAGA version of virtue signaling to their comrades, and of course demonstrating obeisance to their vengeful leader who is watching.

But more significant than these cultish, sycophantic displays, the flag flying, and even of the grasping corruption of Clarence Thomas, is what the current Republican majority on the Supreme Court is doing to our democratic institutions. This week's decision, blessing the Republican gerrymander in South Carolina -- a decision joined by all Republican appointees, and opposed by the Democratic appointed justices -- is a clear win for the Republican Party.

The Civil War Amendments

Republican justices can generally be counted on to oppose the Civil War amendments, and especially the Fourteenth Amendment, which granted citizenship to everyone born or naturalized in the United States, including former slaves. Further, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

For generations after its enactment, however, the amendment had no practical force. The ugly, undemocratic regime of Jim Crow enforced the ruthless suppression of access to the ballot box by black folks -- to the benefit of the Democratic Party, which relied, before passage of the Voting Rights Act of 1965, on the Solid South to win elections. But the parties have switched sides. Today it's the Republican Party that caters to white voters' racial anxieties and fears, relying on legislation to diminish black voting strength to maintain political power.

Voting rights and equal representation are partisan issues in American politics. Voter suppression and gerrymandering to enhance their prospects of winning elections have become a strategic imperative of Republicans. Democrats have pushed back, and one of the most effective weapons has been the Voting Rights Act, legislation activating the Fourteenth Amendment, to ensure free and fair elections and fairly apportioned legislative districts.

John Roberts' Crusade to eviscerate the Voting Rights Act

This week's decision should be placed in context. While Chief Justice John Roberts has insisted that courts just call balls and strikes, the record of the Roberts Court reveals something altogether different. From the days he served in the Reagan administration, Roberts has made a career out of opposing the Voting Rights Act. In Shelby County v. Holder (2013), Roberts' 5-4 majority decision eliminated the preclearance provisions of the act. There was an immediate rush among Republican state legislatures to enact voting restrictions to dampen turnout of Democratic constituencies. In Rucho v. Common Cause (2019), Roberts' 5-4 majority decision barred federal courts from providing remedies for partisan gerrymandering (including extreme gerrymandering), which Republicans (far more than Democrats) have favored. (See this previous post for more details about Roberts' crusade and the pushback from Democratic-appointed justices.)

In this week's 6-3 decision (Alexander v. NAACP), written by Alito, the court flipped the standard for adjudicating cases where racial discrimination appears to be in play. The decision decreed that the court should grant state legislatures the "presumption of legislative good faith." In the words of election maven Rick Haven, "It's a huge thumb on the scale ...," which boosts Republicans' chances of holding onto their slender Congressional majority in 2024.

Justice Elena Kagan's dissent notes that the majority has stacked the deck against challengers to gerrymandered districts. She is outraged at the sophistry:

When racial classifications in voting are at issue, the majority says, every doubt must be resolved in favor of the State, lest (heaven forfend) it be “accus[ed]” of “offensive and demeaning” conduct.

She concludes:

And so this “odious” practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue. In the electoral sphere especially, where “ugly patterns of pervasive racial discrimination” have so long governed, we should demand better—of ourselves, of our political representatives, and most of all of this Court.

As long as this majority is in place, there will be no remedy for gerrymandering. Republican legislators in states where they are in control have been given free reign, knowing that the Republican-dominated Supreme Court has their backs. In this case, as in previous cases, the Republican justices have rejected precedent, made up new rules for deciding cases, and advanced the agenda of the contemporary Republican Party.

Unfortunately, there's nothing new here. This court is ruled by a partisan Republican majority.

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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.

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[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.

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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.