The Supreme Court?

Shannon Bohrer

(10/2024) During Trump's presidency, he had the opportunity to appoint three justices to the Supreme Court. Since then, the court has made several decisions that are divisive and contentious, one of which reversed a previous decision that was thought to be settled law, and another creating a new and totally unexpected law.

On June 24, 2022, the U.S. Supreme Court reversed the previous Roe. V. Wade, a decision made in 1973. In their ruling, the court left the decision to allow or ban abortions to each state. A states' rights issue! That decision has been contentious and has resulted in individual states either limiting, banning, or reaffirming a woman’s right to an abortion. The opposition to banning and limiting abortion care is framed as health care, as it should be. In states that have held ballot referendums, the voter’s choice has been to ensure a woman’s right to have an abortion.

The decision to reverse Roe. Vs. Wade is an important topic in the upcoming presidential election. It is thought to be the primary concern for many voters. However, another decision by the Supreme Court has the potential to restrict or even eliminate our democracy. Without a viable democracy, there would be no guarantees for any rights, including women’s health care.

On July 1, 2024, the U.S. Supreme Court decided that the former president was immune from prosecution for official acts. Additionally, the Chief Justice stated that the former president "working with the justice department officials to push for investigations into certain state election results… fall under the umbrella of 'official acts'". The ruling refutes the long-standing principle that no one is above the law.

Earlier this year, the U.S. Supreme Court overturned a Colorado Court decision to take the former president off the ballot. The Colorado Supreme Court was following section 3 of the 14th Amendment, prohibiting elected officials "from holding future office if they took an oath to support the Constitution and ‘subsequently engaged in insurrection’." The U.S. Supreme Court stated there would be potential issues of state disqualifications. So much for states' rights. The Colorado Supreme Court, in making their decision said the former president had engaged in an insurrection. The U.S. Supreme Court did not refute the conclusion that the former president had engaged in an insurrection, so that ruling still stands.

The U.S. Supreme Court refused to allow the states to make decisions that could affect the election, and then they made a decision that could affect the election. Special Prosecutor Jack Smith asked the court to accept the Immunity case on December 11, 2023. Then, on July 1, 2024, 203 days later, they gave a decision. Was 203 days a delay tactic by the court for the benefit of the former president? The reality is there is no other plausible explanation.

Virtually every judicial expert, which included current and retired judges, had predicted that the Supreme Court would affirm the lower court’s decision that the president did not have immunity. Before reaching the Supreme Court, the trial court and the appellant court had decided that the president does not have immunity. So, what happened?

The Supreme Court’s decision to involve itself in a presidential election is not new. When the Supreme Court decided Bush V. Gore, stopping a recount of election results in the State of Florida, it was considered a landmark decision. The Florida Supreme Court ordered a recount on December 8, 2000. On December 9, the Supreme Court ordered a stay, i.e., stop the count. Then on December 12, they decided in Bush's favor in just four days. While the Supreme Court likes to cite states’ rights, and voting is a state right, yet the Court felt the need to intervene. Four days for Bush in 2000 and two hundred and three days for Trump, from late 2023 to 2024.

If voting is a state rights issue, then why interfere with the Florida and Colorado Case? We all believe we know the answer, but could there be other judicial justifications? Legal experts in various media outlets have denounced the decision.

In response to the Supreme Court’s decision on immunity, the American Bar Association (ABA) created a task force for "American Democracy." The ABA obviously believes the President does not have immunity. Judge (retired) Luttig and Jeh Johson chair the task force. Judge Luttig has an outstanding reputation in legal circles, and Jeh Johnson is a former secretary of Homeland Security.

The ABA president, Mary Smith, said the committee would study the issues and "Provide actionable recommendations for reform." Adding, "Clearly, our American Democracy is not as strong as we once thought and there are those who seem determined to push it to the breaking point.’" What factors need to exist for the American Bar Association to be alarmed?

The Society for the Rule of Law, a nationwide organization, is also concerned for our democracy. On July 12, just eleven days after the Supreme Court decision on immunity, The Society gathered more than 2400 signatures from attorneys, law students, judges, and concerned citizens on a "New Statement of Principles." The principles affirmed the respect for the law, stating that the law and our legal institutions are being threatened.

The Society for the Rule of Law’s "Statement of Principles [is] to Preserve, Protect, and Defend the Constitution, the rule of law, and American Democracy." Accordingly, everyone enacting and enforcing the laws has a duty to do so. The principles include respecting elections, honoring the truth, and speaking the truth, supporting the principle that no one is above the law, and opposing efforts to undermine legitimate courts and individual justices.

If Trump were to be elected, the safeguards, including the separation of power between the president, the judicial branch, could be in jeopardy. If the Attorney General classifies the actions of the president as official acts, then anything the president would do would be official business and protected with immunity. With no checks and balances, the office of the president could resemble an autocracy - and probably will if Trump is elected.

The revolution that created this country held the idea that no one was above the law. In England, the King was the law, and in America, the law was the King. The founding fathers structured a diverse government to prevent someone from holding too much power. They feared another king, and the Supreme Court may have upended that premise.

During Chief Justice John Roberts's Senate confirmation hearing in 2005, he said, "the president in ‘fully bound’ by the law and he Constitution." Adding that not even the president is above the law. In future confirmation hearings, maybe we should ask if the Supreme Court is bound by the law?

"A body of men holding themselves accountable to nobody ought
 not to be trusted by anybody." - Thomas Paine