“The Senate will convene as a court of impeachment.”
“The chaplain will lead us in prayer.”
“The sergeant at arms will deliver the proclamation.”
“The majority leader is recognized.”
Otherwise, he sits and watches. He rests his chin in his hand. He stares straight ahead. He sits back and interlocks his fingers. He plays with his pen. He takes his reading glasses off and puts them on again. He starts to write something, then puts his pen back down. He roots around in his briefcase for something — anything? — to occupy him.
Roberts’s captivity is entirely fitting: He is forced to witness, with his own eyes, the mess he and his colleagues on the Supreme Court have made of the U.S. political system. As representatives of all three branches of government attend this unhappy family reunion, the living consequences of the Roberts Court’s decisions, and their corrosive effect on democracy, are plain to see.
Ten years to the day before Trump’s impeachment trial began, the Supreme Court released its Citizens United decision, plunging the country into the era of super PACs and unlimited, unregulated, secret campaign money from billionaires and foreign interests. Citizens United, and the resulting rise of the super PAC, led directly to this impeachment. The two Rudy Giuliani associates engaged in key abuses — the ouster of the U.S. ambassador to Ukraine, the attempts to force Ukraine’s president to announce investigations into Trump’s political opponents — by allegedly contributing funds, some of disguised origins, to the president’s super PAC and other U.S. campaign entities. Their ties to foreign sources of funds have been under investigation by federal prosecutors.
The Roberts Court’s decisions led to this moment in indirect ways, as well. The court’s 2013 ruling in Shelby County gutted the Voting Rights Act and spurred a new wave of voter suppression. The decision in 2014′s McCutcheon further surrendered campaign finance to the wealthiest. The 2018 Janus decision hobbled the ability of labor unions to counter wealthy donors, while the 2019 Rucho ruling blessed partisan gerrymandering, expanding anti-democratic tendencies.
The consequences? Falling confidence in government, and a growing perception that Washington had become a “swamp” corrupted by political money, fueled Trump’s victory. The Republican Party, weakened by the new dominance of outside money, couldn’t stop Trump’s hostile takeover of the party or the takeover of the congressional GOP ranks by far-right candidates. The new dominance of ideologically extreme outside groups and donors led lawmakers on both sides to give their patrons what they wanted: conflict over collaboration and purity at the cost of paralysis. The various decisions also suppress the influence of poorer and non-white Americans and extend the electoral power of Republicans in disproportion to the popular vote.
Certainly, the Supreme Court didn’t create all these problems, but its rulings have worsened the pathologies — uncompromising views, mindless partisanship and vitriol — visible in this impeachment trial. And Senate Majority Leader Mitch McConnell (R-Ky.), no doubt recognizing that the Supreme Court’s conservative majority is helping to preserve his party’s Senate majority, has devoted much of his career to extending conservatives’ advantage in the judiciary.
He effectively stole a Supreme Court seat by refusing for nearly a year to consider President Barack Obama’s eminently qualified nominee, Merrick Garland, to fill a vacancy. And, expanding on earlier transgressions by Democrats, he blew up generations of Senate procedures and precedents requiring the body to operate by consensus so that he could confirm more Trump judicial appointees.
It’s a symbiotic relationship. On the day the impeachment trial opened, the Roberts Court rejected a plea by Democrats to expedite its consideration of the latest legal attempt by Republicans to kill Obamacare. The court sided with Republicans who opposed an immediate Supreme Court review because the GOP feared the ruling could hurt it if the decision came before the 2020 election.
Roberts had been warned about this sort of thing. The late Justice John Paul Stevens, in his Citizens United dissent, wrote: “Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.”
Justice Stephen Breyer, in his McCutcheon dissent, warned that the new campaign finance system would be “incapable of dealing with the grave problems of democratic legitimacy.”
Now, we are in a crisis of democratic legitimacy: A president who has plainly abused his office and broken the law, a legislature too paralyzed to do anything about it — and a chief justice coming face to face with the system he broke.
An earlier version of this column imprecisely described the alleged actions of two associates of President Trump's personal lawyer Rudy Giuliani. This version has been updated.
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