Tag Archives: Ruth Marcus

So Long, America–It Was Nice Knowing You…

The New York Times summarized the rogue Supreme Court’s immunity ruling in a sentence: “the Supreme Court has extended sweeping legal protections to presidents that apply to no one else in the country.”

In other words, in the most recent of a string of appalling and unprecedented rulings, this disgraceful Court has eviscerated the essence of the rule of law: that no one is above the law. Sources close to the Rightwing extremists behind Project 2025 immediately began planning how to use the Court’s decision to help them implement their unAmerican policy agenda, and Trump immediately called for jailing his political opponents.

The Court has demonstrated the naiveté of those Republican voters who justified sticking with Trump because “there are guardrails–laws that will keep him from doing the craziest shit.” Not anymore, there aren’t.

Toto, we aren’t in Kansas anymore.

I have never been so afraid for my country. Lest you think I am over-reacting, I will turn the rest of this post over to the considered reactions of people I respect.

There were the pundits, of course, many of whom bring solid legal credentials to the discussion. I can sum up their reactions by citing to Washington Post columnist Ruth Marcus, whose opinion piece was titled “God Save Us from this Dishonorable Court” and was subtitled “An egregious, unconscionable ruling on presidential immunity from the Supreme Court.”

But the most incisive and horrified analyses came from the scholars. 

Historian Heather Cox Richardson wrote:

This is a profound change to our fundamental law—an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law….

There is no historical or legal precedent for this decision. The Declaration of Independence was a litany of complaints against King George III designed to explain why the colonists were declaring themselves free of kings; the Constitution did not provide immunity for the president, although it did for members of Congress in certain conditions, and it provided for the removal of the president for “high crimes and misdemeanors”—what would those be if a president is immune from prosecution for his official acts? The framers worried about politicians’ overreach and carefully provided for oversight of leaders; the Supreme Court today smashed through that key guardrail…

Today, observers illustrated what Trump’s newly declared immunity could mean. Political scientist Norm Ornstein pointed out that Trump could “order his handpicked FBI Director to arrest and jail his political opponents. He can order the IRS to put liens on the property of media companies who criticize him and jail reporters and editors.” Legal analyst Joyce White Vance noted that a president with such broad immunity could order the assassination of Supreme Court justices, and retired military leader Mark Hertling wrote that he was “trying to figure out how a commander can refuse an illegal order from someone who is issuing it as an official act.” 

Lawyer and legal scholar Robert Hubbell minced no words:

Today, the Supreme Court overthrew the American Revolution and anointed the US president as a modern-day king. Their betrayal of the American revolutionaries, Founders, and Framers is all the worse because they did so to promote the most corrupt, dangerous, depraved person to disgrace the office of the presidency…

Trump v. United States will be overruled. The decision is so bad it will not stand. Like Dred Scott (holding that enslaved people are not citizens entitled to judicial protections), Plessy v. Ferguson (upholding segregation), Koramatsu v US (upholding the Japanese internment camps), today’s decision will be overturned by the acclamation of history in due course. It will be remembered as a mark of shame for the Roberts Court just as Dred Scott tarnishes Chief Justice Taney’s legacy to this day.

It may take a few years or decades to overturn Trump v. US, but the American people are the ultimate power under the Constitution. Majorities in the House and Senate can pass a bill to expand the Supreme Court, and a Democratic president can sign it. The reactionary majority can be overwhelmed by the appointment of four new justices, although expanding the Court by eight or more would be appropriate given the nearly hundred-fold growth in the US population since six justices were appointed in 1789.

The problem is, if Donald Trump wins in November–or if MAGA neo-fascists control either the House or Senate– there won’t be a United States in which the judicial process can self-correct. 

America as we’ve known it will be gone.

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Ruth Marcus Schools The Court

A recent opinion column by Ruth Marcus is really a “must read” by anyone who thinks that the absence of a specific provision in America’s constitution is evidence that the document is “neutral” about an issue.

Marcus’ essay focuses on reproductive rights, but her explanation of the Constitution’s operation extends well beyond abortion. Although she doesn’t put it this way, what she is really exposing is the fact that judges who call themselves “originalists” are actually revisionists who use the absence of a particular word in the text to justify a preferred, distinctly unoriginal interpretation of the Bill of Rights.

The argument–which was on display during oral arguments in Dobbs v. Jackson-– is that, absent express constitutional language, an issue must be left to “the people.” As Marcus points out,

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

She also notes the highly selective application of the “leave it to the people” approach.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.

What this disingenuous argument rejects is the whole purpose of the Bill of Rights (the Founders’ actual “original intent”)–which was to keep government from invading the fundamental rights of the people to personal autonomy–the right to self-government. A reading of the history of the too-frequently overlooked Ninth and Tenth Amendments makes clear that “unenumerated” rights were among those to be protected.

When people argue that the right to privacy is not protected from government overreach because the word “privacy” doesn’t appear in the document, they conveniently ignore the reality that without recognizing a zone of privacy, it is impossible to give effect to very explicit provisions of the First, Third, Fourth and Ninth Amendments (not to mention the 14th, which was ratified after the Civil War.)

When the Supreme Court decided, in Bowers v. Hardwick, that the Constitution didn’t protect a right to homosexual behavior, because such behavior was not addressed in the document, legal scholars–and a later Court–addressed the fundamental error in that analysis: It had inverted the question. Where in the Constitution or Bill of Rights is government given authority to tell people who and how they can love?

The question is always: who gets to decide this matter, government or the individuals involved? The Bill of Rights answers that question by enumerating things government is forbidden to do. It cannot censor our speech, decide our religions, search our homes or persons without probable cause, or take a variety of other actions that invade an individual’s right to self-determination (the Constitutional definition of privacy).

As Marcus reminds readers,

There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.

All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.

If a woman’s right to control of her own body doesn’t have constitutional protection, then logically, none of the rights Marcus enumerates are protected either–and the intellectually dishonest “religious” conservatives on the Court are quite capable of coming for those rights in the future.

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A Shining City, Not A Walled Fortress

Tonight is New Year’s Eve. The years do seem to go faster the older I get….(As my husband likes to say, “Life is like a roll of toilet paper. The closer you get to the end, the faster it turns.”)

This year’s New Year’s Resolution isn’t my usual list (lose weight, read more, be nicer to assholes). No, this year, my one and only resolution is to do everything in my (limited) power to make America America again.

This inspirational column by Ruth Marcus says it all, and says it far more eloquently and forcefully that I could. Marcus makes the essential point that one can loathe Donald Trump while loving America–that in fact, loving America pretty much requires detesting and resisting our accidental President.

I will share a couple of her observations, but I really, really hope you will click through and read the column in its entirety. (Maybe even print it out and frame it….)

Here, for me at least, is the comforting paradox of the age of Trump: I have never respected a president less, nor loved my country more.

This sentiment may startle. It may rankle, even. It comes in a week that witnessed the passage of the worst domestic policy legislation of my lifetime, followed by the now ritual but always repulsive lauding of President Trump. First by the Cabinet courtiers summoned for that purpose; next by Republican lawmakers willing to lay it on just as thick — even more nauseating, because they know better than the servile flattery of their words and because they occupy, theoretically anyway, a coequal branch.

After listing many of the ways this President has disgraced and embarrassed the nation, Marcus writes

Has there been a more embarrassing year for the United States? Thinking Americans cringe at what foreign countries and their leaders make of us and our president, with his reckless upending of international agreements, his bigoted and poorly executed travel ban, his unashamed ignorance, his reckless tweets, his endless susceptibility to flattery.

I particularly loved this observation:

Once we took for granted, as a given of American democracy, such fundamental values as freedom of the press, the rule of law, the separation of powers, the independence of the judiciary. Now we have a president who veers between failure to understand their importance and deliberate efforts to undermine them.

He is similarly heedless of the qualities that have always made America great, most notably its willingness not only to enshrine these values at home but also to play a leadership role in nurturing them abroad. Trump’s America is bristlingly insular and driven by zero-sum selfishness. Mine is welcoming, idealistic and generous — a shining city, not a walled fortress.

That last line particularly resonates with those of us who know our American history. Even the Deists among this nation’s founders joined their more “biblical” compatriots in believing that they were bequeathing to the world a “shining city on the hill,” a country that would be a beacon of liberty and justice.

Marcus concluded with a timely reminder of the difference between patriotism and nationalism.

Those of us on the more liberal side of the political spectrum have too often and too easily ceded the mantle of patriot to conservatives. Indeed, there can be an off-putting, chest-thumping aspect to traditional, bumper-sticker patriotism: “My country, right or wrong.” “America, love it or leave it.”

George Washington, in his farewell address, advised fellow citizens to “guard against the impostures of pretended patriotism.” It is hard not to recall that admonition when listening to Trump’s faux-patriotic posturing against kneeling NFL players and his demand that they show “total respect for our national anthem, for our flag, for our country.”

Real patriotism would be to recognize, as the Supreme Court did three decades ago in overturning a criminal conviction for burning the American flag, that “we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

It has never been more important for real patriots to fight for the America of our moral aspirations. As Marcus says, “our fundamental fight is not against Trump. It is for America.”

Happy New Year.

Let’s get to work.

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