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IN ANY OTHER COUNTRY  
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Michael Podhorzer
July 9, 2024
Weekend Reading
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_ The Roberts court has completely remade federal elections to
advantage Republican interests—in nearly every instance on a
straight party-line vote. This amounts to decades of election
interference to shielding Trump from legal accountability.... _

Jan. 6, 2021, Trump supporters, organized by the then-president,
arrive at the Capitol, in an effort to prevent the "orderly transfer
of government." Actions which the Supreme Court has now ruled Donald
Trump has limited immunity from prosecution for his , role in the
attempted coup. Photo credit; John Minchillo/AP // The Press
Democrat(Santa Rosa, CA)

 

Let’s try a thought experiment. Suppose you heard that in another
country, a defeated former president who had attempted a coup was
granted immunity for that coup by six Supreme Court judges, half of
whom he had appointed; that this attempted coup included a
widely-televised, deadly assault on the nation’s capitol intended to
prevent the certification of his defeat in the last election; and that
the Court’s immunity ruling came just months before a next election
in which this defeated president is once again a candidate, seeking to
recover the powers he previously abused.

WHAT WOULD YOU EXPECT THE FOCUS OF NEWS REPORTS ABOUT _THAT_ SUPREME
COURT’S RULING TO BE? 

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Debating whether the ruling itself aligns with the history and
traditions of that nation’s legal system, or

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Explaining the Court’s role in an ongoing authoritarian coup.

THE FACT PATTERN IN THE FOREIGN NATION

Let’s add more details to this scenario.

CONSIDER THAT THE DEFEATED PRESIDENT’S LOSS IN THE LAST ELECTION
WAS:

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Decided by the second-largest popular vote margin in the last six
elections, and by the defeated president’s loss in five key states
he had narrowly won in the previous election

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Independently confirmed _by the defeated president’s own
copartisans_ at many levels, including: 

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Monitors at every voting place 

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Members on every canvass board assenting to the count 

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Governors certifying the results in both of the key, narrowly-won
states where the president’s party held that office 

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Validated by courts, which rejected over sixty legal cases brought by
the defeated president or his allies – with many rulings made by
judges appointed by him or his copartisans 

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Acknowledged as valid by the Senate majority leader, also a copartisan

THE DEFEATED PRESIDENT TRIED TO OVERTURN THE RESULTS OF THIS
THOROUGHLY-VALIDATED ELECTION BY:

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Pressuring his Justice Department to baselessly claim there was fraud,
even after his own attorney general investigated those claims and told
him they were “bullshit”

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Attempting to bully a copartisan secretary of state to illegally
“find” him the votes he needed to win, in a telephone conversation
which was recorded and released to the public

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Pressuring his copartisan vice president to unconstitutionally
overturn the results

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Summoning supporters who believed his lies to come to the nation’s
capital city – and then, knowing that those supporters were armed,
inciting them to “fight” for their country as they moved toward
the Capitol building, where they: 

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Breached the building, an act that had not occurred for more than two
centuries, and then only by a foreign army

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Brutally assaulted police officers, one of whom died the next day,
four of whom later died by suicide, and 140 of whom were injured, in
many cases severely 

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Built nooses to hang the vice president for refusing to go along with
the defeated president’s blatantly unconstitutional plan

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Rejecting pleas from his family, senior staff, copartisan
congressional leaders, and cabinet members to urge his followers to
stand down for 187 minutes, while watching the attack on TV

THREE AND A HALF YEARS LATER – even as the defeated president
continued to claim the insurrectionists were patriots and political
hostages, and even after he promised to pardon them (and otherwise act
as a “dictator on day one”) if reelected – HE WAS GRANTED
IMMUNITY FROM ALMOST ANY CRIMINAL PROSECUTION BY SIX JUDGES ON THE
SUPREME COURT.

_THOSE SIX COPARTISANS EITHER ACTED IN ALIGNMENT WITH THE DEFEATED
PRESIDENT AND HIS ATTEMPTED COUP, WERE NOMINATED BY THE DEFEATED
PRESIDENT HIMSELF, AND/OR HAD A HISTORY OF PARTISAN OR IDEOLOGICAL
ACTIVITY._

THEY INCLUDED:

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_THREE JUSTICES THE DEFEATED PRESIDENT HIMSELF APPOINTED, INCLUDING:_

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ONE JUSTICE WHOSE appointment was only made possible by his
copartisan legislative leader’s unprecedented decision
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block any consideration of the previous president’s nominees for 9
months before the next election

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A SECOND JUSTICE WHO was confirmed despite unresolved allegations
that he had lied
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prior misconduct, the investigation of which was cut off by the
president
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and who also:

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Worked on the legal team
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the interests of an earlier copartisan president’s successful effort
to get the Supreme Court to intervene on his behalf. That intervention
stopped legitimate votes from being counted in the state whose
governor was that presidential candidate’s brother, and whose
secretary of state was that candidate’s state campaign chair. A
dissenting justice of that president’s own party said this case was
wrongly decided,1
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subsequent tabulations by a media consortium indicated that if the
count had continued, his opponent would have won the state and the
presidency.

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Later served as associate for an independent counsel who investigated
a prior opposite-party president.2
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failing to find evidence of the financial impropriety that was the
original justification for the appointment of an independent counsel,
this independent counsel broadened his investigation into this
opposite-party president to include consensual sex, setting him up for
perjury that the independent counsel would argue to be grounds for
impeachment.3
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Testified at his Supreme Court confirmation hearing
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“No one’s above the law in [this country], that’s a foundational
principle. … We’re all equal before the law. … The foundation of
our Constitution was that…the presidency would not be a monarchy.
…[T]he president is not above the law, no one is above the law.”
Yet, he rejected this core component of the nation’s law to aid the
defeated president, and effectively pardon him for some of his past
crimes, by declaring for the first time in the nation’s history that
he has absolute immunity for “official acts.”  

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A THIRD JUSTICE WHO: 

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Had her nomination rammed through one week before Election Day,
after: 

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The same copartisan Senate majority leader who engineered her
appointment had, four years earlier, refused to consider the opposite
party’s nominee because 9 months was too close to the next election

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Tens of millions of people had already voted

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Polls (accurately) forecast the later-defeated president who nominated
her would lose

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The defeated president said
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to his own pending election and to this justice’s nomination): “I
think this will end up in the Supreme Court. And I think it’s very
important we have nine justices.”

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Had, as a law firm associate, helped assist
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earlier copartisan president who had relied on the earlier Supreme
Court to stop the vote counting and put him in office

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_TWO JUSTICES WITH BLATANT CONFLICTS OF INTEREST: _

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ONE (AND THE FOURTH VOTE FOR IMMUNITY) WHO: 

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Flew insurrectionist flags at his home and beach house, which the
justice lied to reporters about 

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Took and didn’t report gifts of private jet travel from a
billionaire supporter of the now former-president

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Refused to recuse himself despite a federal statute requiring him to

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Was caught on tape
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that, regarding the battle between the political right and left in his
country, “One side or the other is going to win … there are
differences on fundamental things that really can’t be compromised.
They really can’t be compromised. So, it’s not like you’re going
to split the difference.”

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Testified at his confirmation hearing
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“There is nothing that is more important for our republic than the
rule of law. No person in this country, no matter how high or
powerful, is above the law.” Yet, he rejected this core component of
the law to aid the defeated president and effectively pardon him for
some of his past crimes by declaring for the first time in the
nation’s history that he has absolute immunity for “official
acts.”  

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AND THE OTHER (THE FIFTH VOTE): 

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Whose wife was actively encouraging the effort to reject the
legitimate results of the election – in direct communication with
the defeated president’s chief of staff as it was happening, hoping
for its success – and was a major activist in league with the groups
supporting the insurrection

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Who broke federal laws by not reporting millions of dollars worth of
gifts from billionaire supporters of the former president and his
party

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Who then refused to recuse himself despite clear guidelines requiring
him to

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_AND FINALLY A CHIEF JUSTICE (THE SIXTH VOTE) WHO: _

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Was part of the legal team
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the earlier co-partisan president who was installed by the earlier
Supreme Court, helping to prepare the legal arguments and providing
strategic advice

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Said at his confirmation hearing
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“I believe that no one is above the law under our system and that
includes the president. The president is fully bound by the law, the
Constitution, and statutes.” Yet, he wrote the edict rejecting this
core component of law to aid the defeated president, and effectively
pardon him for some of his past crimes, by declaring for the first
time in the country’s history that the president has absolute
immunity for “official acts.”  

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Rebuffed calls for him to urge the recusal of the two conflicted
justices or even explain why they should not be recused

AND ALL SIX JUSTICES HAVE CURRENT OR FORMER ASSOCIATIONS WITH, AND
WERE NOMINATED AT THE BEHEST OF, A BILLIONAIRE-FUNDED, IDEOLOGICALLY
MOTIVATED ORGANIZATION
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Spent millions of dollars on the campaigns to confirm each of the six
justices – whose later decisions resulted in likely billions of
dollars worth of corporate deregulation 

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Has a mission to pack the Supreme Court (and lower courts) with
political operatives who are dependably sympathetic to its theocratic
and pro-corporate agenda – a project now nearly complete, but whose
legacy will only be secure if the defeated president is elected again
this year (
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he could turn this project’s 6-3 majority into a 7-2 majority with
much younger justices)

THIS SIX-JUSTICE FACTION _TOOK JUST TWO MONTHS_ TO REVERSE A STATE
SUPREME COURT DECISION THAT HAD BARRED THE DEFEATED PRESIDENT FROM THE
BALLOT FOR BEING AN INSURRECTIONIST (which was unambiguously
prohibited by this nation’s Constitution) – and in the process
went further by weakening the country’s constitutional protections
against insurrectionists.

_THIS SAME JUDICIAL FACTION PROVIDED THIS SAME DEFEATED PRESIDENT DE
FACTO IMMUNITY _AFTER A FEDERAL GRAND JURY INDICTED HIM FOR ELECTION
SUBVERSION_ – _DELAYING HIS TRIAL UNTIL AFTER THE NEXT ELECTION,
BY: 

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Refusing to accept a case six months ago that would have decided much
earlier whether and how an insurrection trial could proceed

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Intervening to delay the insurrection trial four months ago – which
would have otherwise begun within weeks – by setting aside the
unanimous rejection by a bipartisan appeals court of the defeated
president’s claims to absolute immunity – _the same question the
Supreme Court had just refused to consider_ 

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Delaying hearing the defeated president’s appeal until the last
possible day of oral arguments – two months later (the same amount
of time that it took for the _whole process_ of putting him back on
the ballot)

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Delaying yet another two months, until the very last day of the
session, to announce the final decision, ensuring that no verdict
would be returned before the defeated president was nominated by his
party 

THEN THIS SIX-JUSTICE FACTION PROVIDED THIS DEFEATED PRESIDENT _DE
JURE_ IMMUNITY FOR SOME OF THE CHARGES AGAINST HIM, INCLUDING BY
BARRING CRITICAL EVIDENCE. 

RESPECTED LEGAL EXPERTS ACROSS THE IDEOLOGICAL SPECTRUM CONDEMNED THE
RULING. For instance:

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A “profoundly made-up (and deeply misbegotten) evidentiary
holding” (Steve Vladeck
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Georgetown University law professor)

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It “cast aside the text, structure and history of the Constitution
in favor of gauzy concerns.” (Kate Shaw
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University of Pennsylvania Carey Law School professor who clerked for
Republican appointees Justice John Paul Stevens and Judge Richard
Posner)

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“It jettisons the long-settled principle that presidents, like all
others, are subject to the operation of law.” (Shaw
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“I don’t recall an occasion when a lawyer in a big case made a
major concession to his client’s apparent detriment—which he’d
obviously deliberated over prior to making and decided his credibility
as an advocate required it—and yet an appellate court second-guessed
the lawyer.” (Andrew McCarthy
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legal analyst at the arch-conservative National Review, expressing
surprise that the Court did not accept the concessions that Trump’s
own legal counsel John Sauer, under pointed questioning by none other
than Justice Amy Coney Barrett, made regarding allegations that the
so-called fake-electors scheme would be considered a private act and
would therefore not enjoy immunity) 

SO, ASK YOURSELF: IF THE ABOVE CHAIN OF EVENTS HAPPENED ANYWHERE
OUTSIDE THE UNITED STATES, WHAT WOULD OUR NEWS COVERAGE AND NATIONAL
CONVERSATION ABOUT IT LOOK LIKE?

I’ve been writing extensively at _Weekend Reading _about how to
make our national conversation reflect this full scope of the crisis
we face.

Below are recaps of a few key insights.

CONTEXTUAL AMNESIA

I’ve seen plenty of media analyses that critique the ruling as
poorly reasoned or dangerous. Yet almost none of them make clear that
this is not an error, but part of an ongoing constitutional
counterrevolution.

“Contextual amnesia” is what I call it when an individual forgets
or overlooks relevant information. The media eagerly printed exposés
of Alito’s flag flying and other isolated controversies, and called
for him to recuse himself from consideration of the January 6th cases,
but – once the cases were handed down, flushed that context down the
memory hole. To the extent they hint at anything other than honest
jurisprudence, it’s that the justices are “conservative” in
their ideology. 

But these justices are not “conservative.” As I’ve explained
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their rulings do not adhere to any consistent legal principle, much
less a “conservative” one. They are enablers of plutocracy and
theocracy, ready to twist the Constitution beyond recognition for
their desired outcome
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using what I call the “Originalist Con
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to give those contortions an air of legitimacy.

A MINORITY COURT

Often, countermajoritarian provisions of the Constitution are
justified as necessary to protect a minority from the passions of the
mob. But the Federalist Society court has been doing the opposite –
upending democratically enacted laws in favor of that minority at the
expense of the majority – and often at the expense of
democratically enacted laws to protect the basic civil and human
rights of other minorities
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It is not defense or judicial restraint; it is offense and judicial
counter-revolution. It has transformed the Supreme Court into the most
powerful national legislating body in the United States for more than
a decade.  But, unlike the Congress, it faces no democratic
accountability and operates largely in secret. 

Moreover, the Federalist Society court wields its power despite being
confirmed by senators who represent less than half of the U.S.
population. All but one of its six members were nominated by
presidents who did not win a majority of the vote in their first
election. Five of the six MAGA justices – Alito, Thomas, Barrett,
Gorsuch and Kavanaugh – are the only five of the 116 justices to
serve on the Supreme Court to have been confirmed by senators
representing less than one half of the US population. 

The panel on the left shows how dramatically different the situation
was just 24 years ago, when, with the exception of Thomas, every
justice on the Court was confirmed by senators representing at least
two thirds of the US population, and six were confirmed by senators
representing 90 percent of the US population.

In previous eras, Supreme Court justices took care to reach consensus
when overturning major precedents with profound impacts on our lives.
Not anymore. 

The Roberts court has completely remade federal elections to advantage
Republican interests—in nearly every instance on a straight
party-line vote.

This has amounted to decades of election interference
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helping return the former Confederate states to one-party rule, to
shielding Trump from legal accountability before ballots are cast in
November. 
 

Notes: 

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[[link removed]]. The
endorsement of that position by the majority of this Court can only
lend credence to the most cynical appraisal of the work of judges
throughout the land. It is confidence in the men and women who
administer the judicial system that is the true backbone of the rule
of law. Time will one day heal the wound to that confidence that will
be inflicted by today's decision. One thing, however, is certain.
Although we may never know with complete certainty the identity of the
winner of this year's Presidential election, the identity of the loser
is perfectly clear. It is the Nation's confidence in the judge as an
impartial guardian of the rule of law." -John Paul Stevens, _Bush v.
Gore _dissent

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[[link removed]]. And was
most likely the Starr grand jury leaker
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although it hasn’t been formally proven.

3
[[link removed]]. Kavanaugh memo
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_[MICHAEL PODHORZER is the former political director of the AFL-CIO.
Senior fellow at the Center for American Progress. Founder: Analyst
Institute, Research Collaborative (RC), Co-founder: Working America,
Catalist. He publishes Weekend Reading
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* Supreme Court
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* SCOTUS
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* Roberts Court
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* Donald Trump
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* MAGA
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* Right-wing agenda
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* Fascism
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* Judicial Coup
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* Election interference
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* Confederate rule
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* Presidential Immunity
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* Capitol coup
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