Mick Clifford: US Supreme Court ruling a severe indictment of principles of liberal democracy

Donald Trump: If he is elected and subsequently impeached, as is highly possible, or if he changes the law in order to run for a third term and is then beaten, what is there to stop him organising a coup? Certainly, the law will not hinder him. Picture: AP/Steve Helber

At an early stage they come for the judges. Whenever an individual or group attempts to undermine basic tenets of liberal democracy in favour of autocratic rule, an independent judiciary is an early target. 

Through threats or action it is conveyed to those who administer the law that results from the courts must be favourable to the regime, rather than a constitution, the rights of citizens or long held legal principles.

Now, the US may well be heading towards autocratic rule under Donald Trump, but neutralising the judiciary is taking a different form. 

Instead of judges being undermined by an autocratic ruler, enough of them that matter are simply going along with the autocrat’s wishes because he represents one side in a growing societal chasm. 

Instead of attempting to interpret the constitution without fear or favour, some of the most powerful judges in the States are acting as little more than functionaries in a culture war.

This week, the US Supreme Court ruled that presidents have immunity from prosecution over official actions. This came in the wake of prosecutions initiated against Donald Trump connected with the storming of the Capitol on January 6, 2021. 

The mob was reacting to a completely false narrative propagated by Trump that the preceding election which he lost to Joe Biden was rigged. 

There is not a scintilla of evidence anywhere across the US states that there was election rigging. But Trump fed the narrative, tried to interfere in the counting of ballots and enflamed his followers who marched on the seat of US government to secure the country for their leader.

Apart from the shock to democratic values reaching back two hundred years, five people were dead in the immediate aftermath of the riot. Another 174 police officers were injured and four officers who responded to the emergency died by suicide within seven months. Those are the bare facts of lives lost in the name of Trump’s attempt to illegally cling to power.

A number of thugs have been jailed for their role in the violence. The general consensus was that the rule of law would prevail in dealing with what was an attempted coup. Then Trump was charged for his actions leading up to the riot. He challenged the charges on the basis that he was immune from prosecution as he was still president. 

Members of the Supreme Court: Is it a coincidence that the six judges who voted to grant Donald Trump such immunity are all Republican appointees at a time of such division? Picture: AP /J Scott Applewhite

Now, the highest court in the land, of which judges are members for as long as they wish this side of the grave, has ruled in his favour. The ruling was 6-3, with the assenters all appointees of Republican presidents, half of whom Trump appointed.

The implications of the ruling are best laid out by one of the three dissenting judges, Sonia Sotomayor. 

In every use of official power, the president is now a king above the law,” she wrote. “Order the Navy SEAL Team 6 to assassinate a political rival? Immune. Organise a military coup to hold on to power? Immune. Take a bribe in exchange for a pardon? Immune, immune, immune.

The implications for future incumbents in the White House are obvious, but just take Trump, who may be the next one. If he is elected and subsequently impeached, as is highly possible, or if he changes the law in order to run for a third term and is then beaten, what is there to stop him organising a coup? Certainly, the law will not hinder him.

Is it a coincidence that the six judges who voted to grant him such immunity are all Republican appointees at a time of such division? There is every possibility that their interpretation of the law in such a wild manner is entirely attributable to their fidelity to the side of the cultural and political division, one side of which has been entirely captured by Trump.

Look at one of the judges, Samual Alito. Earlier this year it was revealed that following the January 6 assault, a flag outside his home was flown upside down, which at the time was a symbol of those who backed Trump’s version of a stolen election. Alito said it was his wife’s doing. 

But this is one of the most powerful judges in the country being associated with something for which there was not the tiniest scrap of evidence.

Another judge, Thomas Clarence, also had a huge conflict of interest. His wife Virginia helped lead the “stop the steal” campaign to overturn the 2020 result. This spouse of the most senior judge in the country was involved in a campaign that was based on a conspiracy theory and nothing more. 

On January 6 she was at a rally near the White House but did not, as many in attendance did, march on the Capitol.

Despite such glaring conflicts of interest on a matter of major importance reaching back centuries, both Alito and Thomas refused to recuse themselves from the January 6 case. It wouldn’t happen in a town council in Nowheresville Idaho, yet that is precisely how the US Supreme Court conducted itself in this instance.

Judges are charged with administering the law using long-held legal principles. Doing so without some recourse to one’s personal philosophy would be difficult. But in this instance all the signs are that long-held principles were sacrificed in the name of simply coming down on Trump’s side. 

That judges who wield huge power, which effectively renders them unaccountable, have arrived at such a station is a severe indictment on a country that prided itself on its principles of liberal democracy. 

In this respect, they are following the lead of Republican politicians who bow at the alter of a corrupt crook simply because he has the capacity to get elected. For politicians to be so craven is pathetic. Supreme court judges following suit represents an alarming abandonment of a basic tenet of liberal democracy.

One of the other dissenting judges, Ketanji Brown Jackson wrote in her judgement of the majority verdict that it “breaks new and dangerous ground” by “discarding” a long held principle that nobody is above the law.

“That core principle has long prevented our nation from developing into despotism,” she wrote. No more, it would appear.

Prior to the 2016 election, Trump had this to say: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.” He was probably correct in that assessment.

Now we know he could do the same thing and be beyond the reach of the criminal justice system if he did his shooting as president. The stakes in November’s election have been just been ratcheted up even further.