America's Gathering Storm

 

By David K. Shipler 

              It’s too bad that Supreme Court justices and other government leaders aren’t required to live for two or three years in some dictatorship before they take office in the United States. Better yet, in one of the countries that have used democracy to undermine democracy. Then perhaps they would recognize the signs of a gathering storm, when the friction of the air seems to change and the wind turns ominous.

              The Supreme Court and the Republican Party are laying the ground for autocracy. They are corrupting the constitutional interplay among the three branches of government, among the shared and competing interests in a complex society, and therefore among the rulers and the ruled.

              The Republicans have abdicated the key role that political parties must play in every free society—filtering out extremist demagogues. And the radical right on the Supreme Court has now granted broad immunity to presidents who commit crimes with “official acts.” This junction of political and judicial mischief could not come at a more perilous time, with a Republican authoritarian poised to return to the presidency carrying a coherent ideological blueprint he did not have in hand his first time around. He would commit felonies against democracy virtually unfettered. This is the perfect storm.

One has to assume (though perhaps wrongly) that Chief Justice John Roberts and his right-wing followers on the Court do not understand fully what they are doing. One would like to believe that if they and their comrades in the Republican Party had even a passing knowledge of other countries’ tragic descent into authoritarianism, they would desist. They would realize that when they strip away restraints on a president, a future left-wing leader could also use the new latitude to dictatorial ends. Indeed, President Biden could do so today. We are lucky that he is not so inclined.

In insular America, cautionary tales from abroad are rarely noticed, it seems. Donald Trump and his collaborators are following the authoritarian playbook used to convert pluralistic political systems to autocracies in Hungary, Venezuela, and elsewhere as described by Steven Levitsky and Daniel Ziblatt of Harvard in their book, How Democracies Die.

They note that while military coups were responsible for establishing most despotic regimes  during the Cold War, “There is another way to break a democracy,” which has since grown more prevalent than military takeovers. “Democracies die at the hands not of generals but of elected leaders—presidents or prime ministers who subvert the very process that brought them to power,” they write. Dismantling democracy can be rapid, as under Hitler in 1933, but more often “democracies erode slowly, in barely visible steps.” (Listen to an interview with Levitsky here.)

After winning free elections in Venezuela, for example, Hugo Chavez arrested opposition politicians and judges, closed a major TV station, and abolished presidential term limits so he could rule indefinitely. But 51 percent of Venezuelans polled several years later rated their democracy 8 or higher on a scale of 1 to 10.

Viktor Orban of Hungary began as a liberal democrat and morphed into a semi-autocrat. He packed the Constitutional Court by expanding its members from 8 to 15 and changed the rules so his party could appoint judges unilaterally. “After winning a two-thirds parliamentary majority in 2010,” Levitsky and Ziblatt note, “the ruling Fidesz party used its supermajority to rewrite the constitution and electoral laws to lock in its advantage” through gerrymandering and banning campaign ads in any but the government-run TV station.

Trump loves Orban. Hosting him at Mar-a-Lago, Trump indulged in a rhapsody of praise: “There’s nobody that’s better, smarter or a better leader than Viktor Orbán. He’s fantastic.”

Manipulating elections, suppressing the media, and coopting the courts are elements in undermining the democratic process. The dynamics of democracy can suffer not only by strengthening the executive branch beyond accountability but also by concentrating authority in any one branch to the detriment of the others.

Judge David Tatel, recently retired from the federal Court of Appeals for the D.C. Circuit, sees the Supreme Court executing a massive power shift to the judiciary from the elected branches—Congress and the presidency. The new restrictions on regulatory agencies are the most dramatic examples, because government regulation of private industry is anathema to the Republican-appointed justices.

The decision on presidential immunity also reworks the lines of authority. Tatel told me in a recent conversation that he thought it would now be highly difficult for the executive’s Justice Department to prosecute former presidents. Even though they can be charged with crimes involving “unofficial acts,” or some “official acts” that are not core constitutional powers, no evidence can be admitted that touches on their official duties or motives. That unprecedented exclusion, an invention of the Republican-dominated Court, would hobble the executive branch of its normal function to bring criminal charges.

In his opinion for a 6-3 majority, Roberts suggests that the immunity will protect presidents from political prosecutions by successors, which is exactly what Trump ridiculously claims is happening to him in the four criminal cases he faces. Revenge trials of former leaders are artifacts of crude autocracies, never seen in the U.S.—but apparently conceivable to a highly politicized Court.

Taken together, giving the president freedom to commit crimes but not to protect the public from corporate-created hazards might seem contradictory. But the right-wing justices are only hypocritical, turning on their principle of enhancing the power structure at the expense of the little guy. It’s amazing that millions of little guys vote for this.   

In a series of rulings curtailing the regulatory powers of government agencies, the Court has arrogated to itself the prerogative of micro-managing detailed, technical rules across the entire scope of protections established by decades of developing expertise. Last month the Court threw out a 40-year-old precedent set in Chevron vs. Natural Resources Defense Council that required courts to give deference to expert agencies where Congressional legislation was ambiguous. That respect for expertise in a highly technical world of rapid change had allowed regulations to keep pace with evolving science and engineering.

Tatel saw this coming, having closely watched the Court and having seen some of his key decisions overruled by “conservative,” Republican-appointed justices.  “Anyone concerned with the environment—or with safe medicines, unadulterated food, or cars that drive safely—has very good reason to worry about where this Supreme Court is headed,” he writes in his book, Vision: A Memoir of Blindness and Justice. (Listen to interviews with him here.)

Both new regulations and old will come under the Court’s microscope. It has effectively assigned itself the power to review any existing regulation, even those long in force, by revising the statute of limitations. The Court has ruled that the clock starts running not with the regulation’s adoption but with the injury to the particular party. So a business can be created to violate a rule and then sue, no matter that countless businesses before have been governed by the regulation for many years.

This canny twist illustrates that while the Republican-appointed justices on the Supreme Court might be ignorant of many things—including the course of incipient dictatorship—they are not stupid. They went to the best law schools. Their clerks are graduates of elite institutions. They know how to fashion an opinion by beginning where they want to end up and working backwards to concoct the justifications. They are intellectually dishonest and, at the same time, smart in a narrow and self-interested way. Honest history will not judge the judges kindly.