The Supreme Court has gone off the rails. We can fight back. | Opinion

I wouldn’t have guessed, earlier in my career, that the death blow to the rule of law in the United States would come from the Supreme Court itself.

Our aphorisms of universal constitutional constraint are now sundered. “No man is above the law.” “Equal justice under law.” A “government of laws, not men.” These defining aspirations were laid low on July 1, 2024. Donald Trump threatened to be dictator for a day. The Supreme Court answered, “why not make it permanent?”

Feeling triumphant, Trump explained last week that Liz Cheney was “guilty of treason” and should now “be prosecuted in televised military tribunals.”

Chief Justice John Roberts’ advice to Cheney, I’d guess, would be to move to Canada. We must have, in Roberts’ telling, “bold and unhesitating” presidential authority. Ordering up tribunals is surely no worse than telling the Justice Department to overthrow the election or demanding that SEAL Team 6 do in his adversaries. It’s a new day. Cheney had best fend for herself. America ain’t going to be America anymore. One hopes Roberts is well satisfied. Some “institutionalist” he turned out to be. Perhaps he longs for the title, “last chief justice.”

As Justice Sonia Sotomayor wrote in the Trump case dissent, the Republican justices adopted “a vision of presidential immunity never recognized by the Founders, any sitting president, the Executive Branch, or even President Trump’s lawyers.” For 235 years, our presidents have thrived without absolute immunity from criminal prosecution after leaving office. But now, with a repeat felon before the tribunal, new, never contemplated powers must be afforded.

No text, history, case decision, constitutional philosophy or originalist understanding supported the result. In fact, Alexander Hamilton wrote in Federalist No. 77 that presidents are “vulnerable to prosecution in the common course of law.” Article I, Section 3, Clause 7 of the U.S. Constitution says as much explicitly.

But if no traditional legal source did the trick, Trumpian fealty managed to carry the day. If the rule of law became a casualty in the process, so be it. Trump needed what Trump needed. And no Republican justice would dare say him nay.

The U.S Supreme Court has clearly, purposefully, openly and irreversibly jumped the rails. It has behaved in ways which put to the lie, utterly and completely, the practices and methodologies the Republican justices claim to deploy in every other case in which they reject the pleas of their adversaries.

And it has done so in one of the most perilous and democracy-threatening periods of American history. Even after seeing the Jan. 6, 2021 insurrection unfold before their eyes, and in their own neighborhood, the Republican justices have thrown in with the aspiring tyrants.

When we’ve needed them most, they’ve joined the other team — the constitutionally dark forces. And they’ve done it in plain and undeniable view. Mocking us with the pretense of professionalism and remove, as they cackle at our subservience and submission — confident we’ll behave like vassals because they tell us that’s what duty demands.

I think most folks understand this now. The question is what we’ll do about it. We face the most dangerous U.S. Supreme Court in our nation’s history. It must not only be campaigned against; it must be defeated.

Packing the court, stripping its jurisdiction, delaying its terms, impeaching its most recalcitrant members should be the defenders of democracy’s high priority. The judges may be life-tenured, but they’re not invincible. The tribunal must be deconstructed and recast. If our present legislative and executive leaders won’t do it, we need to elect some who will. Six radically partisan faux judges can’t rule the greatest democracy on earth.

Contributing columnist Gene Nichol is a professor of law at the University of North Carolina-Chapel Hill.