The Case Against Democracy: and Here it comes, plowing toward us

NOTE: I am writing this blog with a back pain that may prevent me from getting it down in the unmitigated fury and unregenerate hatred which it calls forth in any person for whom the ultimate meaning of the United States is to be a political democracy; which, all shortcomings understood to be an enduring aspect of an imperfect polity; yet is the envy of the whole planet for changed freely elected leaders (or in some cases peacefully reelecting them) 39 times over a period of two hundred thirty-six years.

That incredible sea change is what took place s at 5 pm yesterday, February 28, 2024, a date that shall live in infamy–a sentence last uttered on December 8, 1941…to wit:

“Supreme Court Agrees to Hear Trump’s Immunity Claim, Setting Arguments for April” — that is, agreeing–at least four justices, but quite probably more–to either rule for Trump and thus overthrow the democratic order, converting the United States from a democracy to an autocracy; or rule in any way in a trial so stalled out that it will not conclude until Trump’s trial for insurrection has resulted in either an acquittal or a seizure of power. Those will be the choices they propose. The ruling scum.

In the most horrendously anti-democratic decision in the Nation’s history, the Republican Party’s Supreme Court has agreed per the Times Supreme Court correspondent Adam Liptak, that “The former president’s trial on charges of plotting to subvert the 2020 election will remain on hold while the justices consider the matter.”

Really? “Consider the matter?” Are they engaging in group discussion abut whether the President has the power to send Seal Team 6 to assassinate a rival? Surely Justice Thomas or his wife will be able to give them a list….

This is in fact the worst decision in the history of the Supremely Corrupt Court. Why do I say that?

Until yesterday, there was no competition about that matter. Dred Scott v. Sanford surely won that prize. Why? For those who are unfamiliar with the details, Dred Scott was a freed slave living in Illinois, which under the Missouri Compromise was a “free state.” Mr. Sanford sued for Scott’s arrest and return on the grounds that Scott was not a “citizen” and therefore not a legitimate subject of the law: in fact not a person in any legalist sense of the words: but just a slave. Who had to be returned to his rightful position of slavery.

The worst decision, yes. in the Supreme Court’s history. But why? Foregoing all moralisms, it was a declaration of civil war. John Brown had tried, and been executed by–by the North he hoped to represent. In fact, though, “everyone” knew that only one event after the betrayal of Dred Scott would mean Civil War: the election of Abraham Lincoln as President.

I don’t think Joe Biden, in the hopeful event, will come on board with the same explosive flare, and he won’t be rearming Fort Sumter. In fact, however, if Trump becomes the Commander-in-Chief, as the Court’s conspiracy (6 Republicans) seems to exist for the purpose of allowing that to happen, then the American experiment, as various historians and observers have called it, will be at an end.

That is, the Supreme Court’s response to would-be Furher Trump put the Republican justices in the unusual position of deciding another aspect of the former president’s fate that could be as decisive as any verdict: whether and how quickly Mr. Trump could go to trial. That, in turn, could affect his election prospects and, should he be re-elected, his ability to scuttle the prosecution.

That is, it takes only four votes to add a case to the court’s docket but five to grant a stay, which they have effectively done — and that math almost certainly played a role in their calculations. Let’s just say that outcome does not pass the smell test.

Am I going overboard with Trumpery? The fact is, there was no reason for the Court’s majority (?) to create a trial schedule, as they have done, which is arranged so as to make Trump’s actual trial take place as late as possible–i.e., past his putative reelection–which will be taking place in the presence of armed MAGA forces wherever they can reach.

So make no mistake about it.: The heat is on. It’s on women, who are in the sights–might as well be gunsights-of the rabid evangelical Christians and Christian nationalists who are the totalitarians of sex and gender. Hitler is their guide; and when they (all men in this case) march in Nashville they’ve stepped across the line–with no one standing up to stop them. And now as for the overweight, over-reacting Hitler himself–here he comes, and until and unless they do something different to separate themselves from him–that is where they are, the vicious, murderous enemies of the people: of we the people. But maybe no more.

If Mr. Trump’s “radical claim were accepted,” Jack Smith wrote, “it would upend understandings about presidential accountability that have prevailed throughout history while undermining democracy and the rule of law — particularly where, as here, a former president is alleged to have committed crimes to remain in office despite losing an election, thereby seeking to subvert constitutional procedures for transferring power and to disenfranchise millions of voters.”

That’s it.

Yes, when I was young and eager and a budding Con Law Scholar, the highlight of any seminar was a heated, serious debate about, as the “Realists” had it, whether a justice’s decision was essentially in the end a result of how he (yes) felt about what he had for breakfast that day; or whether, quite contrarily, there was some underlying meaning in “The Law,” some inescapable principle that not only appealed, but in a sense demanded to be heard, because it was the ultimate content of a constitutional democracy.

It was no accident, as we might have put it, that after decades of dilly-dallying, Gideon v. Wainwright, gave us “a landmark U.S. Supreme Court decision in which the Court ruled that the Sixth Amendment of the U.S. Constitution requires U.S. states to provide attorneys to criminal defendants who are unable to afford their own.” See the movie, “Gideon’s Trumpet,” a moving account starring Henry Fonda (admittedly a stretch). That was The Law–it could be moved in the direction that our History commanded. Commanded.

This is The Law? A thought that cannot help but come to mind: where is John Brown when we need him?