First, a key conservative conceit embodied in the work of the Federalist Society has been severely damaged. Over several decades, it advanced the notion that desired results consistent with the right’s political agenda (yes on executive power and the prerogatives of organized religion; no on restrictive gun laws and access to abortion) could be obtained by invoking a cramped brand of jurisprudence. That proposition, it turns out, was oversold.
Over the past 40 or so years, a cottage industry of lobbyists, interest groups, law professors and activists posited that they had found a jurisprudential theory that construed the Constitution in ways that did not allow progressives to do progressive things and also did not prevent conservatives from doing conservative things. Teams of conservative lawyers, right-wing organizations, jury selection experts (who claimed to intuit the profile of favorable jurors) and others professed great skill in finding judges who had the desired mix of reverence for executive/police power, aversion to recognition of “new” constitutional rights, and preference for unregulated markets. The right-wing legal racket assumed that fidelity to a jurisprudential style that delivered desired results would trump the Constitution (which is often sweeping and open-ended when granting rights) as well as the courts’ institutional interests and their concern for principles of democracy. It turned out to be harder than some on the right have promised to guarantee results that conservatives favor.
This is not a matter of making “bad picks." Rather, the folly is in trying to stack the deck. The fact that the Federalist Society and its ilk do not have some jurisprudential crystal ball can be seen in Chief Justice John G. Roberts Jr.'s decision on the Affordable Care Act, in Roberts and Justice Neil M. Gorsuch’s protection of LGBTQ employees under Title VII of the 1964 Civil Rights Act, and in all nine justices rejecting the claim of absolute immunity. Once confirmed to the court, justices can prove terribly disloyal to the political machine that put them there; justices become jealous of the powers of Article III courts; and the real world intrudes. As to the latter, I find it hard to believe that after presiding over the Senate impeachment proceedings, listening to the disingenuous arguments and out-and-out misrepresentations from the president’s lawyers, Roberts did not come away suitably alarmed at the potential damage to our system of government. This crowd really has authoritarian pretensions. The judicial branch is the last thing standing in front of obliteration of separation of powers.
It turns out that one cannot game the Supreme Court, at least not entirely. The right-wing project to capture the courts turned out to be more cynical that the judges it attempted to groom; the latter have minds of their own and reputations they want to protect. Much has been said about Roberts’s well-placed concern about the court’s legitimacy, but Roberts is not the only one to worry about erosion of the court’s legitimacy over the long term and damage from identification of the court with one political party.
The second takeaway from this week’s rulings is that a corrupt president backed by partisan lackeys can do quite a lot of damage but not totally wreck the system so long as two critical guardrails remain: the media and the courts. These institutions are by nature antagonistic toward claims of absolute power. The professionals who populate the courts and the media think of themselves as caretakers of democracy. Both judges and journalists take pride in professional workmanship and feel a sense of responsibility for the fate of self-government and accountability of elected officials. Cynics imagine they are simply partisan creatures; in fact, they take their obligations seriously. (The risk is in taking themselves and their institutional interests too seriously — to the point of self-absorption.)
It is no mere coincidence that Trump rails more at courts and the media than any other institutions. Trump’s ire is so focused on them because these are the most effective obstacles to executive aggrandizement. They therefore pose a unique threat to a narcissist with authoritarian ambitions. In short, they generally cannot be threatened, bullied or bought.
To be certain, Republican senators have utterly failed to uphold their oaths and to act as a check on the president’s malicious and authoritarian aims. They routinely put partisan loyalty above country and their political agenda over respect for the Constitution. But so long as the courts and the media remain beyond the executive’s grasp, the system holds. That might be the most reassuring revelation since Trump took office.
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