The Supreme Court and Total Audacity

The Supreme Court and Total Immunity

When Donald Trump made his claim for the total immunity of presidents, I thought it was an outrageous attempt by a guilty, out-of-touch liar making a last-ditch effort to avoid serious criminal convictions in the courts of Georgia, D.C., and Florida. I still believe that. Nevertheless, the Supreme Court’s ruling last Monday was even more outrageous. It essentially declared that all U.S. presidents are above the law, transforming the presidency into a monarchy.

SCOTUS tried to make a distinction between official, governmental acts (for which the president would be immune) and private, personal actions (for which the president could be criminally liable). At a superficial level, this sounds reasonable, but it is fraught with problems. Almost any action, if it involves any part of the governmental apparatus, can be declared official and, therefore, provide grounds for immunity.

Weaponizing the Federal Government – In the last decade, both Republicans and Democrats have accused the other side of utilizing the instruments of the government (The Department of Justice, the IRS, etc.) to take down political opponents. The prosecution of Hunter Biden and the current charges against Trump are examples of this alleged weaponization. Nevertheless, under the new SCOTUS ruling, if a sitting president gave the order to the DOJ, that act could be an official governmental action and, therefore, the president would be immune.

Trump – Applying the SCOTUS ruling to the cases against Trump, he would probably be declared immune from the charges leveled against him for his actions/inactions regarding the insurrection of January 6, 2021. He could be declared immune from charges for the mishandling of secret government documents at his Mar-a-Lago residence in Florida. He would probably be immune from the charge of overturning the election results (eg. phone call to Georgia Secretary of State Raffensperger) and so on.

Historical Precedent – This SCOTUS ruling goes against all examples in our U.S. history. The founders of our country and the signers of our Constitution had just fought a long war to break free from the “total immunity” of a king. They gave no hint that a president would be “above the law”. They knew that power can lead to corruption and that absolute power “corrupts absolutely”, and therefore they put restrictions and limits on the presidency. Former president Nixon would be provided immunity for his Watergate crime under this ruling.

Crazy Audacity – Trump made another crazy claim. He stated that he made his appeal to the Supreme Court not merely for his own protection, but also to protect Obama and Biden from criminal prosecution. It is tragic when people believe such self-serving lies. No president is above the law. Not Obama. Not Biden. Not Trump.

I Really Want To Respect The Supreme Court…, But Its Conduct Makes It Difficult

Healthy societies have institutions (schools, local, state, and federal governments, the police, legal courts, news sources, etc.) that are generally respected by the majority of the population. I strive to respect these institutions in the United States, but this does not mean institutions get a free pass. I take their actions and affirmations seriously because we humans, individually and collectively, are responsible for our words and deeds. Our Supreme Court does not have the approval nor respect of our citizens. Polls consistently show that less than 40% of Americans approve of the Supreme Court. Part of the problem is due to its rulings, but there are other issues of “process” that have led to this low respect. I will address the content of unsatisfactory rulings in future blog postings, but I will briefly point out two problematic processes.

In early 2016, President Obama nominated Merrick Garland to the Supreme Court. Leading Republican senators (McConnell, Graham, et al) refused to even bring the nomination to the Senate. They argued that nominees should not be approved by the Senate during a presidential election year. In October 2020, Trump nominated Amy Coney Barrett to the Supreme Court even though early voting had already begun in some states! Instead of being consistent with their 2016 policy, Republican leaders brought her nomination to the Senate. This was blatant hypocrisy! Instead of denouncing this hypocrisy, many “pro-lifers” applauded it. They appealed to the unethical maxim of the “end justifies the means” (conservative justices who would overturn Roe v. Wade). I am disillusioned with leaders like McConnell and Graham who pushed through this nomination out of season, but also with those “Christians” who supported this double standard.
Over a period of twenty years, Supreme Court Justice Clarence Thomas has received millions of dollars in gifts from conservative billionaire Harlan Crow. He was required to report these gifts on governmental financial disclosure forms, but he did not do so. Although every other court in the United States has a Code of Conduct which specifies actions that are permitted or prohibited for their justices, the Supreme Court has no such Code and has repeatedly refused to implement such a code.

Although we affirm that “no one is above the law”, these two examples show how some SCOTUS Justices have demonstrated they are not subject to the norms of everyday citizens. In upcoming posts, I will analyze how Monday’s ruling on Trump’s claim of “total immunity” is extremely dangerous for our country.

Is Affirmative Action “Racist”?

Is Affirmative Action “racist”?

Conservative media commentators frequently label Affirmative Action as “racist”. I understand why they want to do this. They are applying a word that has a negative connotation to a policy they don’t like. Nevertheless, that label is neither accurate nor helpful. Racism is essentially defined as “prejudice, discrimination, or antagonism by an individual, community, or institution against a person or people on the basis of their membership in a particular racial or ethnic group”. The important words are prejudice, discrimination, and antagonism. Affirmative action policies did distinguish Afro-Americans from other races, but was it was designed to help level the playing field for black Americans, not to implement prejudice against them. Applicants from other ethnicities were at a relative disadvantage, but it was usually minor. This was an unintentional consequence and is sometimes known as collateral damage.

It is helpful to look at collateral damage in similar situations. Whenever an organization gives a benefit to a certain category of people, those not in that category are at a relative disadvantage, but this is not necessarily “wrong”. For example, many restaurants give a “Senior Citizen” discount to customers who have reached a certain age (usually 62 or 65). Younger customers pay more than senior citizens for the exact same meal, but we don’t denounhce this preference based on age as “age-ist”.

Many people acknowledge “financial need” as a valid criterion for considering educational scholarships. As a result, richer students pay more than students with financial aid scholarships for the same education. Should we label this collateral damage based on financial need as “classist”? Few would do so.

There might be valid reasons for opposing affirmative action, such as trying to demonstrate with evidence that the playing field has now become level. But just labeling it as racist is not accurate nor useful. May we use language in ways that enable good communication and not distort it.

The Supreme Court: What Happened to Conservatives and Freedom?

Yesterday the Supreme Court issued a ruling that essentially overturned Affirmative Action. Universities and colleges, both public and private, can no longer use race as a criterion for admission purposes. In the last 24 hours, much has been said and written in favor and against the decision. Nevertheless, there has not been much commentary regarding the ruling and its relationship to freedom. This is somewhat strange because it was the six conservative justices who united to overturn Affirmative Action. Conservatives claim to enhance freedom. They usually rail against the intromission of big government in the affairs of its citizens. They have violated their convictions with this decision.

During my teaching career, I have taught at various institutions of higher education. Two of those schools are Wheaton College and Whitworth University. Both are private schools, and both believe that greater diversity (economic, racial, and social) in their student body and faculty leads to better education. (Wheaton College had strong abolition values at its beginning and has included African American students since the mid nineteenth century.) Now, both schools are formally prohibited from seeking racial diversity on their campuses. Their institutional freedom has been curtailed. The ruling unnecessarily reduces freedom. On this particular aspect of institutional freedom of action, most people agree that the conservative majority on the Supreme Court got it wrong.