The Court Has Invited the Democrats to Do Their Worst

The US Supreme Court's immunity decision, released yesterday, was even worse than almost anyone expected.  It has already led to a flood of analysis, the best of which was Professor Dorf's column here yesterday afternoon.  Because he did the heavy lifting by reading and commenting on the Court's terrible decision (as well as the very good dissents), I consider myself liberated from having to engage in case analysis.  Instead, I will ask what happens next, focusing on the most extreme possibilities.

To put my reactions here into some context, I should note that yesterday was especially meaningful for me personally.  As I noted in a column almost a year ago, I had long since come to the conclusion that the US is doomed politically, which in turn led me to negotiate an early retirement from my position as a professor at the University of Florida.  At that point, I did what many people often idly threaten to do: I moved to Canada.  Although it was unclear at the time whether this would be a permanent move, it is now much more likely than not that I will be here for the duration.  Maybe not, but probably.

In any event, yesterday was July 1, which was the first official day of my retirement.  I will again be a visiting professor this coming year at the University of Toronto, but I do not want (and, to be clear, was never in negotiations to secure) a regular faculty position there.  I am not only one of the very few people whose situation allowed me to pick up and move, but I am in the very fortunate position of being able to do the academic work that I love to do without needing a regular faculty position.  U of T is evidently happy to have me around to teach a class and to sit in on some workshops, and I am happy not to have to attend faculty meetings or serve on committees.  If this is retirement, it certainly beats playing golf.

Again, however, yesterday was a momentous day by virtue of my becoming technically jobless for the first time in decades.  Note: I am not "unemployed" in the statistical sense, because that status requires a person to be actively seeking work.  I am, for all intents and purposes, out of the labor force.

July 1 is also Canada Day, which Vancouver-based Global News described with a video over this headline: "Canada Day 2024: Canadians celebrate 157 years of unity and pride."  The zeal of the convert being what it is, I am surprised that I was not chugging maple syrup and wearing a Toronto Blue Jays jersey.  Eh?

As I noted above, however, the First of July then became important for another reason.  Six Republican-appointed politicians in robes on the US Supreme Court proved that I had been right all along.  As I celebrated being jobless and completing my first year of unity and pride, I spent much of the day absorbing what had just happened in the country of my birth.  Decades of dirty politics by Republicans and shockingly minimal reactions by Democrats led to the point where the Court endorsed an assault on the rule of law that only a few months ago seemed impossible to imagine.  There had been a consensus that the Court's Republicans were likely to reach a defensible outcome but to try to help Donald Trump simply through delay, delay, delay.  Instead, three days before their country's celebration of its independence from England, they decided that the US President must henceforth be a King.

A friend called me this morning and asked playfully: "So, I bet you're feeling pretty smug about what just happened, aren't you?"  You bet.  That particular Supreme Court opinion was simply shocking and truly unexpected, but it is very difficult not to look at where the US is today without saying: "Called it!"  But because I am not truly retired and will continue to write legal and policy commentary for years to come, the best thing to do now is to ask how the non-fascists in the US should respond to the immunity case -- as well as the Court's litany of other atrocities this term, from shredding the administrative state to keeping Trump on the ballot.

After watching hours of commentary and reading reams of analysis about yesterday's decision, I did note that a small but important number of commentators have pointed out that the immunity that the Court has invented for the President took effect yesterday and will continue to be available to the occupant of the Oval Office henceforth.  Unless something unexpected happens, that person will continue to be Democratic President Joe Biden through January 20, 2025.  (I suppose that I should say "... at least through ... ," but because I continue to believe that the outcome of the 2024 election will not matter in determining who the President will be after that date, why bother?)

The few commentators who have noted that it is Biden who now enjoys all-but-absolute immunity have fallen into two camps.  One group simply points out that Biden could now break the law, leaving it unclear how he could do so or what would happen next.  The other group, prominently including Rachel Maddow, noted in passing that Biden now has unchecked power but simply assumed that he would never abuse that power.  Because Democrats have always been timid and hesitant, the Maddow view reasonably says, in essence: "Sure, in theory he could go wild, but he won't; so let's talk about something realistic."

I have not to this point seen anyone explore any specific things that an unleashed Dark Brandon might decide to do that he otherwise would not have done before this decision came down.  But it is worth thinking about the options in some detail.  As it happens, after the Court heard oral arguments in the immunity case two months ago, I wrote two columns here on Dorf on Law in which I discussed an anti-Republican version of "extremism in defense of liberty" and whether Democrats should "become what we despise."  Even based on the oral arguments alone, it was sensible back then to think about the ugly side of what Biden or another Democratic President might do if handed this blank check.

The irony of such a situation is that it requires a person to conclude that the threat of lawlessness is so immediate that it is necessary to break the law.  It is not "burning the village to save the village," because that leaves the village destroyed -- but at least not communist, making that merely a variation on "better dead than red."  Here, the idea would be to save the village by adopting the illegal means that the village's attackers are using.  In the context of a hot war, that could mean going as far as ordering summary executions and other similarly horrifying measures.  In less extreme situations, it might mean doing a better job than one's opponents of bribing people or engaging in election-related crimes.

Even that, however, does not fully capture what the fight-fire-with-fire people would be trying to do, to say nothing of how difficult it would be to accomplish.  After all, one could be tempted to say that the other side is so corrupt and so committed to destroying the rule of law that the only response is to seize power and keep it in perpetuity.  The reluctant autocrat would say, in essence: "I didn't want to be a dictator, but better me than him."  And that could be the right call, depending on how bad the other would-be dictator is and whether the "good guys" are able to resist the corrupting temptations of absolute power.

But any effort on Democrats' part in 2024/25 to stop a Trumpian takeover of the US would almost certainly be carried out -- genuinely, not merely rhetorically -- in the service of preserving democracy and the rule of law in the future.  That, in turn, means treating this year's political crisis as a true one-off, a threat so great that it requires doing illegal things in order to make sure that we have a functioning legal system after this year.  This would not be an abandonment of our commitment to pluralist constitutional democracy but a genuinely anguished decision to do something that would otherwise be absolutely unthinkable.

What could that include?  Vice President Harris could do on January 6, 2025 what former VP Mike Pence rightly refused to do on January 6, 2021: claim power to set aside some slates of electors, sufficient to put a Democrat in the White House.  Or the President could order that the electoral votes from Texas be confiscated and not delivered to Congress's joint session on the 6th.  Democrats could prevent boards of electors from certifying Republican votes.  Democrats could simply fake vote totals.  Basically, everything that the Trump people reportedly thought about doing in 2020/21 would be available later this year and in January.

And then, of course, there is the Seal Team Six option: political assassinations, ordered by the President and carried out by people who are willing to obey what would otherwise be illegal orders (assuredly with the promise of pardons for all involved).  As everyone knows, Trump's lawyer argued in open court that a President could do that and not be prosecuted unless he was impeached and convicted -- by members of Congress who could be targeted before the vote by another kill order from the President, by the way.  (The Court rejected that particularly weird variation, but the open killing thing is still there.)

One of the talking points that has emerged on left-leaning TV in the last 24 hours is that the Democrats' best response is to win the election by making it clear to the American people that the only safeguard left in the wake of the Court's immunity ruling is to elect people whom we can trust never to abuse their power.  That plays well on TV, and I certainly applaud the idea.  Certainly, even a Democratic Party that (unlike the current one, which Maddow has surely described accurately as being incapable of going as low as Republicans) was willing to go down and dirty would say such things at least until Election Day.

But if the alternative-reality Democratic Party that suddenly learns to play hardball finally comes into existence, it almost certainly will not need to engage in outright violence to hold onto power.  It should surely be possible to change election results -- or, more likely, to prevent the other side from changing election results -- without having to do anything so extreme.  The only thing that they would need to do is to stick to their plan, which would usually be difficult but might be made significantly more likely by the threat of the Democrats' political extinction if Trump were to return to power.  And Trump, we should recall, has promised not to be restrained if he gets the chance to take vengeance on his enemies.

We should also, however, ask whether any of this hinges in a real sense on the content of the immunity decision.  After all, even if the Court had never taken that case or never issued that insane ruling, Trump's threat to America has been crystal clear.  We have not wanted to talk about the Democrats ever going to the dark side, but we have known all along that it is possible for Democrats to do what Trump would be eager to do.  Now that the Court has ruled, it is clear that Trump's reign of terror would be even worse than we imagined.  That extreme danger thus raises the stakes, making it sensible for people who truly do not want to have to break the law to decide that the time has come.

Do I think Democrats will reach that breaking point?  No.  If they were to do so, do I think it would go well?  No.  If they roll over and let Trump back in the White House, do I think that would go well?  Gulp.  In any event, I can honestly say that I never imagined that this is what I would be thinking about in my retirement.