Juristocracy Comes to America

In its latest round, the United States Supreme Court has delivered a shocking series of rulings that now puts it a par with the Thailand Constitutional Court, a third-world body whose nine members display a famously pliant approach to the administration of justice that has earned it the title of juristocracy, thriving on abuses of judicial review in support of interests clearly out of synch with both the wishes of the bulk of the citizenry and the country’s best interests.

Juristocracy is now a word that can be applied to the US Court, six of whose members are in thrall to the ultraconservative Federalist Society, and which appears to be in the service of former President Donald J. Trump, a parallel to the Thais, whose high court appears specifically to exist to prevent elected politicians from obtaining power without at least the tacit approval of the conservative royalists and their supporters. That is a danger to the United States and the international community of nations, including the ones in Asia.

As the nation passes its 248th birthday, the court appears to have lost its mandate for independent rule, much as the Republican Party itself has allowed Trump to flout its bedrock principles of fiscal prudence, government conservatism, free market capitalism, free trade, and deregulation of corporations. Consider some of the Thai court’s more egregious rulings. It has repeatedly ruled in favor of the concept of lese-majeste, or violation of the dignity of a ruler as the representative of a sovereign power or a detraction from or an affront to the dignity or importance of that ruler. That parallels the US Court’s decision, announced on July 1, on executive immunity which makes it all but certain that Trump will not stand trial on charges of seeking to overturn the last election by coup before voters decide whether to send him back to the White House in the next one.

“The relationship between the President and the people he serves has shifted irrevocably,” wrote Justice Sonia Sotomayor in a 29-page dissent. “In every use of official power, the President is now a king above the law.”

This is important now because of the distressing performance of President Joe Biden in his June 28 debate with Donald Trump. Unless there is something we don’t know, Biden’s performance demonstrated that at 81, he is unlikely to be able to govern for the next four years, and worse, that a landslide load of prospective voters no longer wants him to. Despite the protestations of his family and close advisers, there has been a flood of leaks that he is largely disengaged from governing. By showing his infirmity so publicly, he is paving the way to a return to power by Donald Trump, who has a proclivity for appointing hacks to the bench. Justice Clarence Thomas is 76, Samuel Alito is 74, Sotomayor is 70. Trump’s previous picks are young enough to last for decades on the court. Thomas and Alito could well step aside to allow Trump to set the court’s direction far into the future. There is plenty of mischief to do yet in the service of corporate and ultraconservative interests.

The court’s current decisions, already delivered, appear likely to give Trump unbridled power, and he looks likely to exercise it. He has already declared he would be a dictator “only on day 1” if he is reelected. His top advisers, particularly Steve Bannon and Stephen Miller, appear likely to seek to extend that dictatorship far longer, calling for the jailing of the former FBI director, the former health official Anthony Fauci and critics such as Liz Cheney, apparently without resorting to the due process of law. The nation’s highest court now says the president is immune from prosecution for any acts committed in his official capacity. There are likely to be plenty, if history is any yardstick. His previous presidency, hardly constrained, was already littered by illegalities including the only major coup attempt in the nation’s history and one that now he appears unlikely to be tried for.

Anybody who thinks there should be a chance of putting this man at the helm of the world’s most powerful nation, and the most dangerous, needs to be disabused of the idea. The historian Heather Cox Richardson wrote that the court’s decision “destroyed the principle on which this nation was founded, that all people in the United States of America should be equal before the law.” The rest of the world will not sleep easy with the United States in the hands of a man with no democratic moorings whatsoever, who now has been given carte blanche to rule as he sees fit, and with his stated affection for dictators like Vladimir Putin and Kim Jong-un, who will inevitably make a fool of him.

There needs to be an urgent decision to remove Joe Biden from the campaign and pass the baton to someone with a chance of winning. That is not going to be easy. Any candidate starting out now has little name ID, hasn’t been vetted on the national stage, will have to create a national organization and fundraising operation from close to scratch, manage to get Biden’s sizable war chest under his or her control, placate the Biden forces and unify a badly split party. Biden has to be convinced his time is over. But it has to be tried.

As one longtime Republican pol put it, shamefully there is not a single major conservative willing to stand up to Trump. “The Supreme Court has done everything in its power to delay criminal proceedings against Trump, the supposedly nonpartisan trial court in Florida has likewise acted as an arm of the Trump campaign, much of the mainstream media—including and especially CNN— has treated Trump as a normal political figure and bent over both forwards and backwards to avoid even the appearance that they might prefer democracy to authoritarianism, the business community has treated Trump and Trumpism with a deference that resembles a perverted version of Pascal’s wager, (a gamble regarding the belief in God’s existence) so it’s up to the Democratic Party. The Democratic Party must have painful conversations and consider previously unthinkable courses that will be fraught with risk. The Democratic Party will have to rally, as an institution, to save a country.”

That is equally important on an international level. The juristocracy appears determined to give America a man who proved once before that he was unfit to be president and is equally determined to prove it again.