After the U.S. Supreme Court handed down its controversial 6-3 presidential immunity ruling in Trump v. the United States, progressive legal expert Elie Mystal emphasized that it was important to make a distinction between "qualified immunity" and "absolute immunity." The High Court, Mystal warned, has given U.S. presidents "absolute immunity" from criminal prosecution for "official" acts — not merely "qualified immunity" — and is, in essence, encouraging presidents to break the law with impunity.
In an article published by The Nation on July 8, Mystal argues that as bad as other Roberts Court decisions have been, this one is especially damaging.
"Folks, we can't 'come back' from this," Mystal laments. "There is no presidential order or legislative action that can undo all of the evils committed by the Supreme Court. This is different from what's happened before."
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Mystal continues, "In 2012, when the Court gutted the most important piece of legislation in American history, the Voting Rights Act, there were immediate calls for Congress to pass legislation restoring what the Court took away.… Similarly, in 2022, when the Court took away a constitutional right for the first time in American history and overturned Roe v. Wade, there were immediate calls for Congress to pass legislation restoring what the Court took away…. This time, there's no legislative fix for the problems the Court has created."
Mystal argues that the Roberts Court's GOP-appointed majority has become "drunk on their own power" and now "rules the country in unchecked, unaccountable fashion." One possible solution, according to Mystal, is packing the Court.
"There are only two ways to deal with this Supreme Court: ignore its rulings or flood it with new justices who will give back the power this court has stolen from the rest of us," Mystal explains. "The first option, most likely, leads directly to civil war — one where the rule of law can be imposed only by military force under the sole discretion of whoever happens to be the president, assuming that president commands the loyalty of the military."
Mystal adds, "Democracy cannot long exist if laws have meaning only when the president decides to enforce them at the point of a gun. The second option, court expansion, is the normal, peaceful, constitutional solution to a court that no longer believes it can be checked by other institutions."
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Elie Mystal's full article for The Nation is available at this link.
