So a few days back, the Supreme Court shocked observers by effectively putting the most important of Donald Trump’s trials - regarding his attempt to overturn the 2020 election results - on indefinite hold with a series of delays, ostensibly to allow justices to consider some flimsy legal arguments from Trump’s legal team about presidential immunity to prosecution.
As Ian Millhiser
wrote at the time, Trump’s goal - which SCOTUS seems to be helping with - is to delay the DC trial until after the 2024 election. If Trump wins, he can then order the Justice Department to drop the charges.
Millhiser followed up today
with another piece suggesting that this sort of judicial acquiescence to popular authoritarianism has plenty of precedence in American history.
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.