Recommended: There's dozens of good takes on the most explicitly corrupt decision the Roberts-led Supreme Court has, to date, coughed up. My own favorite may be this one from Holly Brewer at The New Republic, which lays bare just how far back these no-longer-originalists needed to go to find justification for granting presidents near-total immunity for crimes committed while in office.
The Founders were hardly all wise or all knowing, but they did understand a history that we have now forgotten. There’s a reason that they so carefully included accountability for governors, and presidents, and wanted it for kings. They not only experienced abuses of power at the hands of royal governors, and at the whims of kings, abuses they recounted in the Declaration of Independence. They knew as basic history that this question was at the center of disputes over the actions of unrestrained monarchs during England’s two revolutions in the seventeenth century.
The 1686 case of Godden v. Hales affirmed the power of James II, king of England, to ignore all laws and not be bound by them. Like the decision in Trump v. U.S., the judges could cite no substantial precedent. Before the decision, James II personally interrogated the justices, all of whom held their positions at his pleasure. When it appeared that some of the 12 justices on England’s highest court might not rule as he wished, James II fired them and replaced them with other more amenable justices. After the decision, which cited “the King’s will,” James II’s actions became increasingly egregious, so much so that there was a revolution against him, called the “Glorious Revolution” because his soldiers refused to fight for him. The Convention Parliament that met afterward, in the spring of 1689, requested all of the records from the case be brought to them. They then fired all of the high court justices, levied fines on them, ruled that they could never again hold any office. They also decreed that no high court decisions from the reign of James II could ever be cited as precedent.
Today’s Supreme Court has just recreated one of the most despicable cases in English history, a case that signified the apex of absolutism in British history and was repudiated by a revolution for the damage it caused. Their language about presidents facing no responsibility for criminal actions if they are remotely related to their official responsibilities is substantially the same ruling for Trump that Godden v. Hales was for the king of England in 1686.
Given that less than a century later colonial Americans would themselves stage a revolution against another English king's exploitations, you can't plausibly argue that "leaders must be bound by laws" wasn't a top-of-mind concern for those tasked with sorting out the aftermath. It's about the least Originalist premise you could imagine.
So firing each of the justices who determined that it didn't matter what the Constitution said or what the nation's founders were explicitly attempting to head off does, now that the James II precedent has been brought up, sound like a good start. But this is how the Roberts court operates: the Supreme Court's pre-revolutionary cosplayers have been more than eager to push the theoretical thoughts of 17th century witch burners if the next few hundred years of legal advancement discredits the argument that they want to make. And it's more than a little maddening that this collection of prep school debate clubbers has the gall to display actual arrogance, even as they flub basic case facts and flit between supposed deeply held judicial ideologies to unmake whatever it is they've got it in their heads needs to be unmade this time around. They appear to think they're actually clever, these Brooks Brothers partisans, and have been getting increasingly pissy at the historians and legal experts who point out the absurdities in their arguments.
In this case, we know exactly what the founders would do with unrepentant loyalists to the British Crown's supposedly near-infinite powers: George Washington would have pointed a musket at Roberts' head and told him to either surrender or hope for a misfire.
This Roberts court notion that a collection of slave-raping colonial plantation owners was still too Woke, in their opinions of what a president ought to be able to get away with, is an insanity. That it was done explicitly, quite explicitly and intentionally to sabotage the multiple prosecutions of a seditious conspirator who sent a mob after his own vice president—it's so brazenly corrupt that it feels like the court is now just thumbing its nose at the last quarter millennium of history. To be in the tank for Donald Trump, of all people?
Holly Brewer
Read it at The New Republic.
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