In Trump immunity case, Supreme Court justices are Trumpists, not jurists | Opinion

I’ll concede, readily, that in my old age I find it almost unbearable to listen to U.S. Supreme Court arguments. After all, I’ve been studying them, in one format or another, for many decades. This is the bench of Earl Warren, Thurgood Marshall, William Brennan, Ruth Bader Ginsburg, Sandra Day O’Connor, John Marshall Harlan. It’s high ground. Or was.

Now there are other occupants. Massively different driving forces. Clarence Thomas, Samuel Alito, John Roberts, and the three Trump judges — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Committed enlistees in a Republican crusade. Untethered to law. Lifelong opponents of the high aspirations of independent judicial review. Warriors against the enforcement of the Constitution’s obligations to open and secure the channels of democracy.

It’s hard to hear them talk. To hear them speak as if they pursued actual inquiry — instead of Federalist Society shop talk. To see the masquerade. They’re delivering gold for Donald Trump in last week’s insurrectionist-immunity case. Like you knew they would.

First, there is no straight-faced claim in the case that Trump is immune from the operation of the criminal law. As Jack Smith’s brief put it: “a criminal scheme to overturn an election and thwart the peaceful transition of power is the paradigm example of conduct” that cannot be immunized. And, as the Court of Appeals had held, Trump’s actions sought to interfere with “the constitutionally established design for determining the presidential election” — which provides “no role” for the president. Of course it doesn’t. The framers weren’t nuts.

But Justice Gorsuch said he “wasn’t concerned about this case” — he wanted to “write a rule for the ages.” Of course he does. Gorsuch, Thomas, Kavanaugh and Alito “for the ages.” It makes one nauseous. And it’s the literal definition of judicial legislation.

But it does at least distract. They can simply ignore what Trump has done. (That’s what Republicans do.) Plus, it’ll take forever to craft an unnecessary set of rules. They’ll need more process. Tons of it. They received the memo. Delay, delay, then delay some more. And who knows, presidents may need to stage coups, sell nuclear secrets, assassinate opponents and pay off porn stars. Judges have to be pragmatic futurists — not originalists, not this day.

A second point. A test of imaginative powers. Imagine that Barack Obama had done what Donald Trump did. (I know that’s actually impossible, Obama is the anti-Trump.) But go with me. Assume it was Obama’s case before these faux-judges rather than Trump. Is there any possibility that Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Roberts would declare — even for a moment — that Obama was immune, or might be immune, or that his immunity should be examined, except to throw it on the trash bin of history?

I’ve been doing this for 40 years, and I promise there would be no possibility of that. None. No honest lawyer in the country would disagree with that assessment. These are partisans in charade. Nothing more. We should expect no more of them than we would Marjorie Taylor Greene or Matt Gaetz. They do the same work. They just pretend otherwise. They pose. They deserve the same level of respect we afford to the formal nutjobs.

They are also engaged, ironically, in bold, unprecedented election interference. Trumpists, not jurists.

The rest of us need to understand this. Clear eyed. If we are committed to the American democratic experiment, these pretenders must be disempowered – dismantled as the anti-democratic wrecking ball they’ve become. Worry not about the institution. There is no institution left to save. Donald Trump, Mitch McConnell, George H.W. Bush and the Republican Party have already done that work. Fully.

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