In the last few days, the Supreme Court delivered two body blows to anyone hoping that former President Donald Trump might face consequences for his attempt to overthrow the 2020 election.
On February 28, the Court ordered the most important of former President Donald Trump’s four criminal trials to be put on hold indefinitely. Then, on the following Monday, the Court effectively neutralized any attempt to disqualify Trump from serving as president again, under a provision of the 14th Amendment which prevents former high-ranking officials who “have engaged in insurrection or rebellion against” against the United States from serving in high office again.
The decision to place Trump back on the ballot, after Colorado’s Supreme Court deemed him disqualified, will not surprise anyone who listened to the oral argument in that case — although the Court handed Trump a far more sweeping victory than he seemed likely to receive after that argument. The Court’s decision to delay the trial, however, was much more surprising.
Many Court observers, including myself, were shocked by the February 28 order because it appeared to rest on the flimsiest of pretexts. The ostensible reason why the Court ordered Trump’s trial paused is so the justices could spend the next few months considering Trump’s argument that he is immune from prosecution for any “official acts” he engaged in while he was still president.
This is an exceptionally weak legal argument, with monstrous implications. Trump’s lawyers told one of the judges who ruled against this immunity claim that a former president could not be prosecuted, even if he ordered “SEAL Team 6 to assassinate a political rival,” unless the president was first successfully impeached and convicted (by lawmakers that, under Trump’s argument, the president could order killed if they attempted to impeach him).
There are, of course, historical examples of the Supreme Court behaving less deferentially toward presidents who thumb their nose at the law. The most well-known is United States v. Nixon (1974), the Court’s decision ordering President Richard Nixon to turn over tape recordings that implicated him in a crime, eventually leading to Nixon’s resignation.
The decision to halt Trump’s trial, however, fits within a different judicial tradition, which is no less robust and no less prominent in the Supreme Court’s history. The judiciary is a weak institution, staffed by political officials who are often reluctant to stand against popular authoritarian policies or movements. Indeed, the justices themselves often belong to those movements.
This is the tradition of Korematsu v. United States (1944), where the Court stood side by side with a popular, wartime president who ordered tens of thousands of Americans sent to internment camps for the sin of having the wrong ancestors. And of Debs v. United States (1919), where the Court condemned a prominent union leader and political candidate to 10 years in prison for giving a speech opposing the draft.
And it is the tradition of the Civil Rights Cases (1883), where the Court, at the very moment that white supremacists were consolidating an authoritarian regime that would rule the South for generations, declared that Congress had done too much to protect Black people and that they should no longer treat freedmen as “the special favorite of the laws.”
A written Constitution and the courts that are supposed to enforce it are weak guarantors of a liberal democratic society. The Supreme Court of the United States does not always align itself with authoritarian policies and movements, but it does so often enough that it cannot be counted on as an ally in a conflict between constitutional democracy and something more sinister.
And the Court is particularly ineffective in standing up against figures like Trump, who enjoy broad (if not necessarily majoritarian) political support.
Constitutional rights and other legal safeguards are worthless in the face of a sufficiently powerful political movement
For 49 years, the right to an abortion was a constitutional right, affirmed over and over and over again by the Supreme Court. And then, one early summer morning, the right disappeared.
The American people woke up on June 24, 2022, with their right to an abortion intact. Before noon, it was gone.
This did not happen because of any substantive change to the Constitution. The Constitution in 2022, when Roe v. Wade was overruled, was identical to the Constitution in 1973, when Roe was first handed down (save for a minor, irrelevant amendment concerning congressional pay).
Rather, Roe fell because the minority of Americans who oppose abortion organized. They took over one of America’s two major political parties. And then they installed their operatives on the Supreme Court of the United States.
In fairness, one plausible explanation for Roe’s fall is that it rested on a debatable interpretation of the Constitution’s text. The Constitution protects both enumerated (meaning that they are laid out explicitly in the document’s text) and unenumerated rights, and the Ninth Amendment explicitly forbids courts from construing the Constitution to deny the existence of unenumerated rights. But the fact that the Constitution does not specifically mention abortion has always given Roe’s opponents a powerful rhetorical argument against it.
Do not think, however, that a right is secure because it is explicitly protected by the Constitution. Certainly, nothing in African American history supports this Pollyanna-ish assumption. And the Supreme Court’s history is riddled with cases giving the back of the hand to rights specifically enumerated in the Constitution.
The 15th Amendment, for example, was ratified in 1870, five years after Union forces defeated a separatist rebellion dedicated to the cause of slavery. It provides that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”
But this amendment ceased to function the minute popular support for Reconstruction faded. Black people’s right to vote, at least in states that were determined to deny them that right, lay dormant until 1965, when Congress passed the Voting Rights Act. And in the long century between these two legal reforms, the Supreme Court often made itself complicit in white supremacy by giving its blessing to Jim Crow voter suppression.
Indeed, the Court aligned itself with Southern racists even before Reconstruction collapsed as part of a corrupt deal to install President Rutherford B. Hayes in the White House in 1877. Two years earlier, in United States v. Cruikshank (1875), the justices tossed out the criminal convictions of several members of a white supremacist mob that used guns and a cannon to kill a rival Black militia defending the right of freedmen to elect their own leaders.
Black people, the Court said in a decision that should send shivers down the spine of anyone familiar with the history of the US South, “must look to the States” to protect constitutional rights such as the right to vote or the right to peacefully assemble.
Nor is the Supreme Court’s haphazard approach to constitutional rights limited to the rights of Black people. The Constitution says quite explicitly that no one may be denied “the equal protection of the laws,” and it forbids “unreasonable searches and seizures.” That didn’t stop Korematsu from holding that American citizens could be incarcerated solely for having Japanese ancestry.
Or witness nearly the entire history of the First Amendment, which was often powerless, not just against federal suppression of wartime speech, but against something as mundane as people who don’t like nude art. For much of the late 19th and early 20th century, art and literature depicting human sexuality was a frequent subject of criminal prosecution under the federal Comstock Act — a law, it is worth noting, that is still on the books — or under similar state laws.
In one case, an art gallery owner was successfully prosecuted for selling reproductions of Alexandre Cabanel’s masterpiece The Birth of Venus.
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So the idea that Donald Trump, and the MAGA movement he leads, would crumble simply because there’s a law saying that his actions are forbidden was always naïve. When powerful political movements conflict, the Court honors the law maybe some of the time. And it is just as likely to align itself with an authoritarian faction as it is to choose the rule of law.
It’s not even clear that the Supreme Court is capable of standing up for the rule of law in the face of a sufficiently determined opposition
Even before the US Constitution was ratified, one of the early Republic’s greatest statesmen saw that the courts are a paper tiger. The judiciary, Alexander Hamilton wrote in the Federalist Papers, “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” It doesn’t even have the authority to enforce its own decisions, and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
The Court’s two most famous decisions — one its most celebrated, and one its most reviled — confirm that Hamilton was correct. The courts are weak, and it is far from clear that they can stand up to a strong political movement even when they want to.
Consider Dred Scott v. Sanford (1857), the odious pro-slavery decision that declared that Black people are “beings of an inferior order” with “no rights which the white man was bound to respect.” This decision is now widely viewed by scholars as an attempt to resolve sectional tensions over slavery by handing down a sweeping, comprehensive judicial declaration of the rights (or lack thereof) of enslaved people.
And wow did the Court fail in this mission. As the historian Robert McCloskey wrote about the period following Dred Scott, “the tempest of malediction that burst over the judges seems to have stunned them; far from extinguishing the slavery controversy, they had fanned its flames and had, moreover, deeply endangered the security of the judicial arm of government.”
In the very next presidential election, the nation elected President Abraham Lincoln, a man whose commitment to abolitionism developed only gradually, but whose contempt for Dred Scott was apparent in his very first act as president. In his first inaugural address, Lincoln revealed his intent to openly defy the Court’s decision:
[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
And Lincoln followed through on this threat. His State Department issued a passport to a Black man, flouting the Court’s declaration that Black people cannot be citizens. More significantly, he also signed legislation banning slavery in US territories, mocking Dred Scott’s conclusion that enslaved people do not escape from bondage after entering a free territory.
It should go without saying that Lincoln is the hero in this narrative and the justices who joined the Dred Scott decision are the villains. Elected officials should not have deferred to such a monstrous decision, and the American people were right to elect a leader who would defy it. Rather, my point is that, when the judiciary took a firm stand on the most contentious issue facing the nation in 1857, it had no ability to sustain its decision against a powerful political movement that found that decision repugnant.
A similar narrative played out nearly a century later, with the Supreme Court taking the opposite side. In Brown v. Board of Education (1954), the Supreme Court famously held that racially segregated public schools are “inherently unequal,” placing a unanimous Court in opposition to the Southern racial apartheid that characterized that region ever since the 15th Amendment ceased to function.
But Brown was enforced unreliably in its first decade on the books, and enforcing it required extraordinary resources that were far beyond the judiciary. President Dwight Eisenhower had to send the 101st Airborne Division to protect Black students attending a historically white high school in Little Rock.
At least initially, moreover, Brown accomplished virtually nothing in the states most determined to resist it. As legal historian Michael Klarman has documented, only 40 of North Carolina’s 300,000 Black students attended an integrated school five years after the Court’s decision. In Nashville, just 42 of the city’s 12,000 Black students were integrated six years after Brown. By Brown’s 10th anniversary, only one in 85 Black children in the South attended an integrated school.
Brown most likely made life worse for African Americans in the South, at least in the short term, by reinvigorating terrorist groups like the Ku Klux Klan. A major reason why no one even filed a lawsuit seeking to integrate a Mississippi grade school, until eight years after Brown, is that anyone who agreed to be the plaintiff in such a lawsuit risked being murdered.
The landscape did shift in 1964, but not because of anything the Supreme Court did. That was the year Congress passed legislation permitting the Justice Department to sue segregated schools, and also permitting the federal government to withhold funds from schools that refused to desegregate. Two years after this bill became law, the number of Southern Black students in integrated schools increased fivefold. By 1973, 90 percent of these same students were in desegregated facilities.
So the Court was unable to achieve integration in the face of a powerful white supremacist political movement in the South. It was only after a more powerful movement gained the sympathy of the federal government, and enlisted Congress and the Executive in the fight against segregation, that Jim Crow began to crumble.
There is a lesson here for all who hope to defeat Trump’s authoritarian movement.
No one is coming to save us from Donald Trump. We have to do it ourselves.
It’s sometimes difficult to look at the rematch lining up this November without despair. Trump literally incited an insurrection that attacked the US Capitol and tried to overthrow the nation’s democratically elected government. President Joe Biden, meanwhile, is an 81-year-old man whose polls suggest that he could lose to Trump.
And so we are now hearing a cacophony of calls for some kind of deus ex machina — or, at least, some way to up the odds that American voters will not make the kind of mistake that is not easily reversed.
What if the Democrats simply replace Biden at the DNC, presumably with some as-yet-unidentified savior who is simultaneously younger, more popular, and more capable of uniting the party’s disparate factions? Or maybe the 14th Amendment, with its provision forbidding insurrectionist former officials from seeking high office, will neutralize Trump’s candidacy — as if the 14th Amendment has ever been a reliable bulwark against autocracy.
Or perhaps Trump would be criminally prosecuted, and a conviction would so disqualify the former president, in the eyes of the electorate, that democracy would be saved. But after the Supreme Court’s decision on February 28, we can’t count on that outcome either. We can’t even be sure that there will be a trial.
No one is coming to save us — not the courts, not the Constitution, and certainly not a process for choosing candidates that has not been used since the 1960s.
Donald Trump will be defeated, if at all, in November at the ballot box. The only thing his opponents can do to make that happen is to vote for Joe Biden, and to encourage others to do the same.
There is no other solution.
Update March 4, 11:15 am ET: On Monday, the Supreme Court ruled in Trump v. Anderson that Donald Trump will not be removed from the 2024 presidential ballot, despite his role in the January 6 insurrection. This article, which originally ran on March 2, has been updated to reflect this new development.
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