The Attack on Democracy Is Already Underway

The Supreme Court isn't waiting for Donald Trump to destroy the ability of the American people to get what they ask for.

White House photo by Andrea Hanks

There has been some head-scratching in the last few days about a seeming contradiction in the decisions the Supreme Court’s conservative supermajority handed down at the end of its term: On one hand, they ruled that the president is immune from prosecution for his official and quasi-official acts, because it’s so important that he be free to take “bold and unhesitating action” without worrying about whether, in his unhesitating boldness, he might be committing crimes for which he might one day be held accountable. On the other, they issued a series of decisions restraining the executive branch’s authority. Quite the contradiction!

Except it isn’t. The immunity decision and the executive power decisions, which reached something like a final victory last week in a case called Loper Bright v. Raimondo, are perfectly complementary. It’s all about the ability of the American right to prevail over democracy itself. 

At its most fundamental level, here’s how representative democracy is supposed to work: 

1. The voters choose a leader, who has campaign on the things they’re going to do.

2. That leader’s administration pursues the policies they ran on.

3. If the voters like the results, they reelect the leader. If they don’t, they elect someone else.

Conservatives have never been completely comfortable with that system, because it means that sometimes they don’t get what they want. So a few decades ago, they came to a profound realization. That “checks and balances” stuff you were told about in grade school? It’s a joke. The judiciary’s power to check the other two branches is way, way more substantial than any of the other checks the system contains. What’s the ability to impeach a judge next to the power to strike down any law Congress passes? Not only that, if you seize control of the judiciary, you can hold on to that control for decades, no matter what the public or the other branches of government think. 

Which means the Supreme Court is the key to everything. Control it, and there’s almost nothing you can’t do. So conservatives began planning, working, raising money, scheming and plotting, in significant part through the Federalist Society but in an effort that ultimately included the entire Republican Party. Their victory is now all but complete.  

Our new sort-of democracy

That thing where the voters choose a president, they pursue their policies, and the public decides if they like the results? That now exists only so far as the six conservative justices like the outcomes that are produced. Here’s how the system works now, once a Democrat is elected president:

1. The Democratic administration makes a policy decision.

2. Republicans — maybe some state attorneys general, maybe some billionaire-funded interest groups — file suit in a district court with a Republican-appointed judge to stop it.

3. The judge rules that the administration has no authority to make the policy decision it did.

4. An appeals court dominated by Republican judges affirms the lower court decision.

5. The Supreme Court affirms the appeals court.

Consider just a few recent pieces of news:

• The Federal Trade Commission issued a final rule banning noncompete agreements for most workers, which started as a way for companies to protect trade secrets but spread like a virus to the point where even fast food workers were being forced to sign contracts upon taking their job forbidding them from working for other fast food restaurants in the area. The decision was extremely popular. So business interests filed suit in Texas, where a Trump-appointed judge stopped the ruling from taking effect. 

• After the worst mass shooting in history was carried out with semi-automatic rifles fitted with bump stocks in 2017, the ATF judged that the devices met the definition of machine guns as provided in the relevant law, and banned them. At the time, one poll showed support for the ban at 82% of Americans; another put the figure at 73%. But the Supreme Court decided that its expertise in the technical details of firearm construction and operation was superior to that of the ATF, and struck down the agency’s interpretation of the law. 

• Confronting the issue of crippling student debt — 43 million Americans owe a total of $1.6 trillion dollars as of the latest statistics — the Biden administration has moved aggressively to forgive debt and restructure payments. After a surreal oral argument in which the conservative justices made clear they just didn’t like the policy choice the administration had made, the court struck down one such debt forgiveness program. The administration has continued to enact other kinds of debt forgiveness, and every time conservatives file legal challenges that are supported by Republican-appointed judges.

Those are just a few recent examples in a long string of cases in which the court just didn’t like the policy outcomes the executive branch was producing, so it decided to nullify them. This culminated in the decision in Loper Bright, which didn’t get nearly the attention of the Trump immunity case (which we’ll get to in a moment) but which is much more far-reaching. 

In Loper Bright, the court overruled a principle it established back in the 1980s called “Chevron deference,” which states that if a law is ambiguous, the courts should defer to executive agencies when it comes to enforcing it. That made sense, because Congress can’t possibly foresee every specific situation a law will cover, and the agencies are the ones with the expertise to resolve the questions that arise. 

In her dissent, Justice Elana Kagan noted the kinds of questions that have to be resolved: When does an alpha amino acid polymer qualify as a “protein” under the FDA’s regulation of “biological products” in the Public Health Service Act? How does the Endangered Species Act’s designation of “distinct population segments” apply to Washington State gray squirrels? Should Medicare’s requirement that reimbursements be adjusted to reflect hospital wages in different “geographic areas” be defined by city, county, or metropolitan area?

The idea that a judge with zero expertise (perhaps aided by one or two recent law school grad clerks) would be better equipped to make those determinations than agencies with extensive experience and knowledge is absolutely bonkers. But now all those decisions will be up to judges. The purpose is to make the courts into the place where all policy gets made, or at the very least where any policy right-wing judges don’t like can be vetoed. And they’ve shown that they will use this power with, shall we say, bold and unhesitating enthusiasm. 

The result, almost every observer agrees, will be a flood of lawsuits challenging regulations and agency determinations — and for good measure, the court made the statute of limitations on such challenges essentially infinite so they can obliterate any agency rule they like, no matter how longstanding it is. 

This has been described as a “power grab” producing a “neutered” executive branch, but that’s only half right. The executive branch under Republican presidents will still have all the power it wants, so long as it is using that power to produce conservative policy outcomes. Republican administrations will be allowed to make policy as they see fit, and Democratic administrations won’t. What the electorate voted for is irrelevant.

These f-in guys (White House photo by Shealah Craighead)

Where policy meets presidential immunity

Seeing the court’s decision in the Trump immunity case, one might have asked whether they thought far enough into the future. Sure, they want Donald Trump to be able to take bribes, stage coups, and generally crime his way through another term, but what if a Democratic president did the same? Might they come to regret making the president a king, if a Democratic president could do it too?

No, they won’t. The right doesn’t worry about a Democratic despot in the Oval Office, for two reasons. First, for all they wail “Tyranny!” whenever a Democratic president issues the most trivial executive order, they know Democrats fundamentally respect the law and are bound by a sense of propriety. Republicans don’t fear that a President Harris or President Whitmer would respond to right-wing protesters by asking their secretary of defense “Can't you just shoot them? Just shoot them in the legs or something?” as Donald Trump did when protesters took to the streets in the wake of George Floyd’s murder. When they claim that Joe Biden is ordering the IRS to audit their taxes and might send a death squad to murder them, they’re revealing their desires, not their fears. 

The second reason they don’t worry is that if a Democratic president did commit crimes, the Supreme Court would handle it. This Calvinball Court would find an exception, a loophole, a heretofore hidden penumbra that allows them to clothe in the language of legal authority the real rule: Our side gets to do what it wants, and your side doesn’t. Just as the court finds that agencies doing conservative things under a Republican president are acting within their authority but agencies doing liberal things under a Democrat president are not, if a Democratic president ever committed a crime, the court would rule that the crime was not sufficiently “official” and therefore he could be prosecuted. And everyone knows it. 

So yes, Donald Trump is a profound threat to democracy. But he can’t destroy it without the cooperation of the six conservative justices on the Supreme Court. And they’re already on the case.