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'This Court Is Not Going to Protect Us From Donald Trump' Janine Jackson ([link removed])


Janine Jackson interviewed Vox's Ian Millhiser about the Supreme Court's protection of Donald Trump for the March 8, 2024, episode ([link removed]) of CounterSpin. This is a lightly edited transcript.

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Janine Jackson: The Supreme Court ruled this week that states can't keep Donald Trump off of presidential ballots, despite his myriad crimes and active legal entanglements. But as New York Times columnist Thomas Edsall noted ([link removed]) , the more politically consequential decision came on February 28, when the court set a hearing on Trump's claim of presidential immunity for his role in fomenting the violent January 6, 2021, effort to overturn the election, for the week of April 22.

Edsall suggests the delay is a gift to Trump and a blow to Biden, because a failure to hold a trial means Democrats won't be able to “expand voters' awareness of the dangers posed by a second Trump term.” A trial, you see, would produce a lot of reporting about Trump's role in the insurrection that could inform and presumably sway voters.
NYT: 'This Could Well Be Game Over'

New York Times (3/6/24 ([link removed]) )

I think it's fair to ask ourselves why journalists couldn't do that reporting anyway, whether the "surprisingly large segment of the electorate" that Edsall says has "either no idea or slight knowledge of the charges against Trump" couldn't just possibly learn about those things from the press corps, even without the shiny object of a trial to focus on.

Ian Millhiser reports on the Supreme Court and the Constitution, even when former presidents are not in the dock, as a senior correspondent at Vox ([link removed]) . He's author of, most recently, The Agenda: How a Republican Supreme Court Is Reshaping America ([link removed]) , and also, relevantly, 2015’s Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted ([link removed]) . He joins us now by phone from Virginia. Welcome back to CounterSpin, Ian Millhiser.

Ian Millhiser: Good to be here. Thanks so much.

JJ: Your February 28 report is headlined “The Supreme Court Just Handed Trump an Astonishing Victory.” ([link removed]) So please spell it out for us why it's a victory, and why it's astonishing to a longtime court watcher such as yourself.
Vox: The Supreme Court just handed Trump an astonishing victory

Vox (2/28/24 ([link removed]) )

IM: I had assumed that the courts were going to try to stay neutral on Donald Trump, and neutral on the election, and so what neutrality means is, we knew from the oral argument in the ballot disqualification case that the courts weren't going to remove Donald Trump from the ballot. We already knew that wasn’t going to happen. But I thought the flip side of it was that the Supreme Court wasn't going to actively try to boost Trump's candidacy by delaying his trial, by pushing it until after the election, but that's what they did.

By scheduling this hearing in April, the trial can't happen until after the Supreme Court resolves this immunity appeal, and so they made the decision to, the practical implication of this is, that the trial almost certainly will not happen until after the election, if it happens at all.

When the Supreme Court hands down such a consequential decision, it's supposed to explain itself. The way the Supreme Court works is that when it does something, the majority of the justices who agree with one outcome write an opinion explaining why they did what they did, and then the justices who dissent write a dissenting opinion explaining why they disagree. And the court didn't even have the decency here to explain why.

I mean, maybe there's some possible justification for pushing Trump's trial until after the election, but at the very least, they owed us an explanation for why they handed down this extraordinarily consequential decision. And the fact that they thought that they could do this without explaining themselves, I think raises very serious questions about whether the Supreme Court will be neutral on the question of whether Donald Trump or Joe Biden should win the 2024 election.

JJ: Well, I think people understand that the law does not equal justice in the way that we might understand it, but it sounds like you're saying this is messed up on the level of law itself.
Vox: A 19th-century anti-sex crusader is the “pro-life” movement’s new best friend

Vox (4/12/23 ([link removed]) )

IM: When you look at the long arc of US history, the law doesn't always resemble the law. In 1870, we ratified the 15th Amendment. That's the amendment which says the government is not allowed to discriminate on the basis of race when deciding who was allowed to vote. And that amendment was in effect for maybe five years during Reconstruction, and then it just evaporated.

For 90 years, the Supreme Court did not enforce that. We had 90 years of Jim Crow, 90 years of Black people being told they did not have their equal citizenship rights, even though it's right there in the Constitution, saying explicitly that they're supposed to have it. Because politically there wasn't enough support for giving Black people the right to vote, and the Supreme Court just went with those political winds.

If you look at the history of the First Amendment, during war time, people were thrown in jail during World War II because they opposed the draft, because they gave a speech opposing the draft. For most of the late 19th and early 20th century, there was very aggressive enforcement of something called the Comstock Act ([link removed]) —which is still on the books; this could come back at any time—which bans pretty much any kind of art or literature or anything that in any way involves sex. People were tried and convicted for selling the famous portrait The Birth of Venus ([link removed]) . It's a nude portrait. People were convicted of crimes because they sold reproductions of famous works of nude art, despite the fact that we have the First Amendment.

So the reason I'm describing this long history here is, I think we Americans need to have a realistic sense of what we can expect from the courts. The courts don't always ignore the law. They don't always follow the political winds. I can point you to plenty of examples of the Supreme Court being courageous against powerful political—I mean, the reason why Nixon had to resign is because the Supreme Court ordered ([link removed]) him to turn over incriminating evidence.

So the Supreme Court sometimes follows the law. It sometimes does the right thing. But if you look at the long arc of American history, all I can say about the Supreme Court is "sometimes." And apparently sometimes is not now. Sometimes is not now.

This court is not going to do anything to protect us from Donald Trump. It has made that perfectly clear. It doesn't matter what the Constitution says. It doesn't matter that there's an entire provision of the 14th Amendment saying ([link removed]) that if you are in high office, and you engage in an insurrection, you can't hold office again—doesn't matter. Supreme Court's not going to enforce that provision.

And that doesn't mean that we should all abandon hope, but it does mean we cannot rely on the courts at all. Donald Trump will be defeated at the ballot box if he's defeated anywhere.

JJ: I'm going to bring you back to hope in just a second, but I just felt a need to intercede. My ninth grade government teacher was convinced, and not without cause, that we really weren't going to retain very much from his class. And he had one thing, which was that every now and again he would just randomly holler out, “What's the law of the land?” And we would yell back, “The Constitution!” That seems more painful than quaint right now.
Ian Millhiser

Ian Millhiser: "When the chips are down, the Constitution is only as good as the worst five people who sit on the Supreme Court."

IM: Yeah, we like to tell ourselves a good story about the United States. One of the purposes of public schools is to inculcate enough a certain sense of what our values should be. The nation we aspire to be is a nation where the Constitution matters. The nation that we aspire to be is one where somebody who tries to overthrow our government does not get to serve in government ever again. That is who we hope to be.

I think it is right that our public schools try to inculcate those values in us, because the way that you get Supreme Court justices who will actually share those values is by having this massive civic effort to teach us all that the Constitution matters and that we should enforce it.

But when the chips are down, the Constitution is only as good as the worst five people who sit on the Supreme Court. If those people did not internalize the lesson that you and I learned in the ninth grade, there's nothing we can do about it.

JJ: And I'll just bring you back: You've said it before, when I spoke to you last time ([link removed]) , you said it doesn't surprise you that this institution that's always been controlled by elites has not been a particularly beneficent organization in American history. That's before Clarence Thomas ([link removed]) . That's before the guy who likes beer ([link removed]) . This is the history of this Supreme Court.

And so while we can and should be outraged and worried and more, what we can't be is surprised that the Supreme Court is not swooping in now to save us from Donald Trump and whatever, heaven help us, a second Trump presidency might usher in. So let me just ask you again, finally, what is to be done? Because giving up is not an option.

IM: I think a lot about a line from President Obama's first inaugural address ([link removed]) , where he said, “We must choose our better history.” The United States has always had two histories. We have always, always, aspired to be a nation where we have political equality, where we can follow the rules of the road, where we have a Constitution. “We hold these truths to be self-evident that all men are created equal”: Those are the words that created our nation. That has always been one of our histories.

And the other history is that we enslaved people. The other history is Jim Crow. The other history is Jim Crow–like treatment of Asian Americans out on the West Coast. The other history is Korematsu ([link removed]) . The other history is Clarence Thomas flying around ([link removed]) on all these billionaires' jets.

And that has always been our history too. We have always faced a choice between, “We hold these truths to be self-evident that all men are created equal,” and the other thing. And sometimes we have elections where that choice isn't as readily apparent. This is an election where that choice is immediately apparent.

JJ: All right, then. We've been speaking with reporter and author Ian Millhiser. You can find his work on the Supreme Court and other issues on Vox.com ([link removed]) . Ian Millhiser, thank you so much for joining us this week on CounterSpin.

IM: Thank you.
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