“You Americans, you are so naïve,” Joseph Brodsky, a Soviet dissident who was also a Nobel laureate in literature, is supposed to have said to students of his at Columbia sometime in the seventies or the eighties. “You think evil is going to come into your houses wearing big black boots. It doesn’t come like that. Look at the language. It begins in the language.”
For people who take an idea like this seriously, the twelve hours following the release of the Supreme Court’s immunity decision might have served as a confirming event. Not only did justices, journalists, and politicians who objected to the decision systematically use language to misrepresent its empirical reality. In the process, they illuminated a new trend involving language and American law that threatens the republic.
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Despite the extreme language used to describe it, the Court’s decision was simple. It did not expand the president’s constitutional authority or turn him into a king; the president remains checked by Congress, which can impeach him, and the Supreme Court, which can overturn executive orders. The decision simply disentangled criminal law from constitutional law by saying the president cannot be checked in his constitutionally mandated duties by a criminal prosecution or the threat of one. It also said that the president’s actions can be prosecuted criminally should they not be specified in the Constitution and should they fall “within the outer perimeter of presidential duties.”
The vagueness of this last phrase earned critiques from Justice Barrett, in a concurrence, and Justice Jackson, in a dissent. But the deeper split between the three liberal justices (Sotomayor, Kagan, and Jackson) and six conservative ones (Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) was clear. Liberals believe that criminal law should intersect with presidential politics to keep the Executive accountable. Conservatives think this intersection corrupts the law by putting prosecutions in service of high-stakes power agendas.
Conservatives could make a case for the latter view based on the recent criminal cases against President Trump, undertaken by Democrat-linked special prosecutor Jack Smith, which created the conditions for this ruling in the first place. They could also base their argument on the flawed investigation of President Clinton in the 1990s and the intelligence agencies’ ousting of President Nixon in the 1970s over a crime that even liberal observers believed obscured the deeper crimes of the operatives who set Nixon up for a fall.
All of these arguments not only support the Court’s immunity ruling. They also make a strong case against the use of legal tools to achieve political ends, a strategy that even liberal commentators admit has been key to the Democrats’ effort to centralize power since the 1950s. This may explain why these arguments were systematically obscured on Monday in Washington, D.C.
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The obscuring began with Justice Sotomayor. Reading aloud from her dissent, a rare practice that signals intense disagreement, she created a small masterpiece of literal and figurative court theater. According to The New York Times, before beginning, she responded to Chief Justice Roberts’s empirical point that the decision “does not protect any particular president, but the presidency” by stating that “saying it so doesn’t make it so.” Having implied that six of her colleagues were operating a protection racket for President Trump, she began to read, and, according to The Times,
cut a note of exasperation through her lengthy speech, seemingly to sporadically add “imagine that,” “think about that,” and “interesting, history matters right?” as she read from her written words. When discussing and rebutting the majority, she looked several times to her colleagues on her immediate left, Justice Clarence Thomas and Chief Justice Roberts. They did not return her gaze.
Worse than the delivery was the content, which, as spoken and written, leaned and leans heavily on rhetoric. According to the dissent, which was joined by Justices Kagan and Jackson, the Court’s decision is “deeply wrong” and “troubling,” while its application to the specific case against Trump is “even more troubling.” Its approach is “draconian” and “extraordinary” with “no basis in law.” Its analyses are “dramatic” and “unprecedented,” “obviously wrong” and “nonsensical.” It “struggles” with one legal classification and has “no coherent explanation” for another. Readers should “feel free to skip over” some of the decision’s pages. These comments come only from pages 22 to 26 of a 30-page dissent. On page 30 alone, Sotomayor accuses the majority, repetitively, of a “single-minded fixation” as well as of creating “nightmare scenarios” and making the president “Immune. Immune, immune, immune.” She concludes, factually inaccurately, that “in every use of official power, the President is now a king above the law.”
The only thing matching the rhetoric is the legalese. On pages 22 to 26, there are six detailed references to past cases, including quotations. On those same pages, there are thirteen references to briefs to the Court or to passages from the majority’s opinion, with twelve quotations. One out of the nine paragraphs that constitute these pages is given over to a thought experiment about the president hiring a hitman. When mixed with the percussive rhetoric, the effect of this detail is hard to overstate. The result for the reader is disorientation, and the frightened awareness that an expert in a complicated field is outraged about an imminent harm. “We fearfully dissent,” is this dissent’s unprecedented, oft-quoted sign-off, the final line to be left ringing in readers’ heads.
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For anyone who believes in the law as a coolant on politics, Sotomayor’s delivery and dissent were assaults. They did not clarify the stakes at play; they obscured them. They did not lower temperatures, but raised them. Equally assaultive were the words of connected, sometimes purportedly bipartisan legal commenters like Neal Katyal, Dahlia Lithwick, and Norm Eisen, who picked up on Sotomayor’s opinion and used it as permission for their own rhetorical flights, bolstered with references to “isms” and “experts,” law and history.
“As an official representative of the legal commentariat,” Lithwick said, “I want to suggest that tonight’s a good news cycle to talk to the fascism and authoritarianism experts.” According to Katyal, “what the [decision] … says is that the law is not going to protect us against a nefarious president, the Constitution is not going to protect us, the Courts aren’t going to protect us.” According to Eisen, “we overthrew King George because we didn’t want a ruler to have this kind of absolute immunity.”
President Biden, whose White House has direct or indirect connections to some of these players, made this approach central to his speech to the nation that evening — another Hail Mary to shore up a sagging campaign, this time by asking his fellow Americans to believe that a coequal branch of government had, in the stroke of a pen, turned America into a monarchy.
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It might seem surprising to citizens who reasonably expect Supreme Court justices and legal reporters to at least give them accurate information about an important case that these operators systematically distorted the case instead. But this is surprising only because of category confusion. Despite being accredited lawyers, the approach of all of these practitioners is not to reason about the law: to clearly lay out for citizens the issues at play and to make a strong case for the merits of one side over the other. It is to use their expertise, expressed through extreme specificity, to hand down a party line, expressed through extreme rhetoric. The result of this approach, half-nitpicking and half-alarmist, is to make their point of view inarguable on any terms. In short, they are bureaucrats first, lawyers second.
Their tactics match those of an entire coterie of institutional operators who served in Washington in the Clinton, Bush II, Obama, and Biden administrations: Hillary Clinton, Lawrence Summers, Ira Magaziner, Susan Rice, Dick Cheney, and William Kristol, to name a few. Mostly lawyers but also academics, journalists, and consultants, these operators mixed narrow expertise with take-no-prisoners tactics in the name of emotive causes (universal health care, protecting the homeland, hope and change, build back better). Some of the more famous of them (Clinton, Cheney) were widely known for both their dramatic pronouncements (“it takes a village”; the Iraq insurgency is “in the last throes”) and their bureaucratic mastery of the “nuts and bolts” of government. “Intellectual imperialists” of the uniparty, their style has now made its way onto the Supreme Court, the ultimate arbiter of America’s constitutional system.
But this approach is not law. It is what the chroniclers of the decline of the Roman Republic whom our Founders studied knew to be bureaucracy: the use by an imperial government of legal apparatchiks who mix narrow statutes and broad rhetoric to justify sweeping stances against insider “enemies” that brook no compromise. That one side of our political aisle has made this its approach to law is a threat to representative government and the clear flow of information on which our Constitution’s framers knew it to depend.
Matt Wolfson, an ex-leftist investigative journalist, tweets at @Ex__Left and writes at Oppo-research.com.
Image: Gage Skidmore via Flickr, CC BY-SA 2.0.
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