The conservative-majority U.S. Supreme Court concluded its annual session with a highly controversial decision on presidential immunity, at the heart of an election campaign seen by progressives as decisive for American democracy.
The decisions of the last few days will be historic. On the field of presidential immunity as well as on the freedom of action of federal agencies, the rupture was hailed by Republican parliamentarians as “the beginning of the end of bureaucracy.”
The Court split on each of these cases along ideological lines: the six conservative justices versus the three progressives.
Of all the decisions of the session, the last one, on Monday, granting the president broad criminal immunity, “is truly dizzying,” Steven Schwinn, a professor of constitutional law at the University of Illinois at Chicago, told AFP.
It is a resounding victory for Republican candidate Donald Trump against Democratic President Joe Biden, as the ruling further delays his federal trial for illegally trying to overturn the results of the 2020 election and jeopardizes some other lawsuits against him.
“Deeply politicized”
“That the decision was made along purely partisan lines only underscores what all observers note, namely that this Court is deeply politicized,” Schwinn notes.
“It appears to constitutionalists and, increasingly, to public opinion, as another political institution that takes not legal decisions, but political decisions,” he adds.
“The conservative members of the Court are perfectly willing to use their political power and numerical superiority to impose constitutional and legislative changes that have long been on the conservative agenda,” he concludes.
On the most sensitive social issues such as the right to abortion or the carrying of weapons, the Court has, however, issued more consensual rulings than its spectacular reversals of jurisprudence in June 2022.
But in a Quinnipiac University poll released a week ago, nearly two-thirds of respondents (63%) say the Supreme Court’s decisions are primarily driven by political considerations, compared with less than a third (32%) who say they are primarily driven by legal considerations.
A majority (54%, against 37% of the opposite opinion) disapprove of the way in which it carries out its mission.
“Designed to be unpopular”
“The Court already had a big image problem before this session because of the scandals involving [les juges Samuel] Alito and [Clarence] “Thomas,” recalls Asha Rangappa, a former FBI agent and law professor at Yale University.
Both men, the most conservative members of the court, have been criticized for the largesse they received from Republican billionaires, including in the form of trips and vacations, and the political activism, on the Republican side, of their wives.
“But with these decisions, it is difficult to escape the conclusion that the judges are dressing up the result they were seeking from the start with legal reasoning” for more political reasons, continues Asha Rangappa.
By contrast, conservative law professor Jonathan Turley says the Supreme Court’s most vocal critics, both commentators and politicians, wrongly believe that “justice is a mere extension of politics and subject to the whims of the majority.”
“The Supreme Court was designed to be unpopular, to take politically unpopular but constitutionally right positions,” he wrote in an op-ed published in the New York Post, calling its decision on presidential immunity “balanced.”
Electoral law specialist Richard Hasen, for his part, criticises the President of the Court, John Roberts, for having, through this decision, intended to prevent future abusive prosecutions against the head of the executive, “written off a current threat to democracy”.
“These justices are focusing on an abstract problem that might arise for presidential powers in 2072 or 2114,” he wrote on Slate. “Not on the problems the United States faces today because of Donald Trump and his allies’ attempted subversion of the election in 2020.”