The combination of recent Supreme Court rulings on presidential power with the Democratic Party’s nomination crisis in the wake of Joe Biden’s disastrous debate performance has significantly improved Donald Trump’s prospects — not only his odds of once again becoming president, but also of enacting a sweeping authoritarian agenda.
Trump’s debt to the six-member conservative majority on the Supreme Court is twofold.
First, their delay. By waiting until the last day of the court’s term to issue their decision on Trump’s immunity claims, the justices effectively prevented prosecution of federal criminal charges against him before the election.
“By shielding Donald Trump from standing trial before a jury in two of his felony cases,” Michael Podhorzer, a former political director of the AFL-CIO, writes in a post on his Substack, Tipping the Scales, “Trump’s three appointments to the Supreme Court, along with the even more MAGA Justices Alito and Thomas and Judge Aileen Cannon, have already irreparably interfered in the 2024 election.”
Second, the substance of the July 1 ruling in Trump v. United States has convinced Trump and his allies that they will face few legal obstacles if they pursue a radical reconstruction of government — a “second American Revolution,” in the words of one loyalist — if Trump regains the White House on Nov. 5.
“In a sweeping decision that constitutionalizes the modern reality of the imperial presidency, the U.S. Supreme Court has established near-total criminal immunity for Donald Trump’s official acts while he was president,” Noah Feldman, a law professor at Harvard writes in a July 2 Bloomberg column, “Emperor Trump?”
“The Supreme Court has gutted the historic effort to hold Donald Trump legally accountable for his efforts to overturn the 2020 election,” Feldman goes on to say, pointing out that
A president tried to break our democracy by overturning the results of an election that he lost, and the Supreme Court has responded by protecting him from criminal prosecution. Our founders would be horrified. The Caesars would nod in approval.
At the same time, Trump’s main political adversary, the Democratic Party, is enmeshed in a grim struggle over whether Biden has the cognitive ability to be president for another four years or whether he should withdraw from the race.
Biden’s miserable debate performance and the internecine dispute since has already cost the besieged Democratic nominee 2.8 precious percentage points in national polls, according to RealClearPolitics.
Equally important, the Republican advantage in the generic congressional vote has been increasing, albeit by small numbers — from 0.5 points to 1.5 points — a trend, if it holds, that suggests that Republicans could hold the House and win back the Senate, assuring Trump smooth legislative sailing if he wins a second term.
The shift in focus to Biden’s infirmities has pried public attention away from Trump’s vulnerabilities, undermining a core Biden campaign strategy.
As my Times colleague Reid J. Epstein wrote on July 8,
From the outset of President Biden’s re-election campaign, the plan for winning was to make former President Donald J. Trump so unpalatable that voters uneasy with the incumbent would vote for him anyway.
But now Mr. Biden is stuck in a political tailspin, with an abysmal debate performance highlighting his inability to make a case against Mr. Trump and prompting a collective national hand-wringing about his ability to do his job while an increasing number of House Democrats say he should leave the race.
Luckily for the Democrats, Trump and his allies are undermining their own campaign strategy by pushing onto center stage the most contentious aspects of the MAGA agenda.
The controversy over remarks by Kevin Roberts, president of the Heritage Foundation and the organizer of Project 2025 — a detailed set of policies and proposed appointees for a second Trump administration — epitomizes this development.
Roberts boasted of victory during a July 2 appearance on Stephen K. Bannon’s “War Room,” the day after the Supreme Court issued its immunity decision.
“We are going to win, we’re in the process of taking this country back,” Roberts bragged.
“We are in the process of the second American Revolution,” Roberts told viewers, adding, more ominously, “which will remain bloodless if the left allows it to be.”
Roberts pointed out the ways in which the Supreme Court’s presidential immunity decision eliminated key legal hurdles restraining Trump’s power to exercise executive authority:
We ought to be really encouraged by what happened yesterday, We know the importance of the executive being able to do his job. And can you imagine any president, putting politics off to the side, any president having to second guess, triple guess every decision they’re making in their official capacity?
Roberts committed a cardinal sin in political competition: allowing his exuberant celebration to become a story in the mainstream media.
In attempting to quash the controversy, Trump’s political instincts failed him. In a July 5 post on Truth Social, Trump dissociated himself from Project 2025. “I know nothing about Project 2025. I have no idea who is behind it,” Trump wrote, two patently false claims. “I disagree with some of the things they are saying and some of the things they are saying are absolutely ridiculous and abysmal. Anything they do, I wish them luck, but I have nothing to do with them.”
To say that Trump’s efforts to mute discussion of Project 2025 was mishandled is an understatement.
Comparing Nexis data on the first week of June with the first week of July, the number of media mentions of Project 2025 shot up from 163 to 820.
In effect, Trump was doing the Democrats’ work for them.
In addition, on July 8, The Washington Post quoted a Biden campaign official: “It is really important that voters understand that Donald Trump in a second term would be far worse, far more dangerous and far more extreme than he was even in his first term,” T.J. Ducklo, a senior Biden campaign adviser, told the Post. “That is a core argument that we are making and must continue to make to voters, and Project 2025 is one of the most effective ways we can make that point.”
In fact, there is considerable overlap between Trump’s public commitments and the drastic policies proposed by Project 2025, and few areas of disagreement.
Both Trump and Project 2025 call for the elimination of civil service protection for roughly 50,000 federal workers who set and enforce federal policies, turning these key jobs into patronage appointees.
Project 2025 also calls for the enactment of “the most robust protections for the unborn that Congress will support” and for elimination of “the terms sexual orientation and gender identity, diversity, equity, and inclusion (“DEI”), gender, gender equality, gender equity, gender awareness, gender-sensitive, abortion, reproductive health, reproductive rights” from “every federal rule, agency regulation, contract, grant, regulation, and piece of legislation that exists.”
Trump has rejected pressure to support federal anti-abortion legislation, leaving the issue up to the states. But he has already been more than willing to use executive power to excise both the language and the practice of diversity, equity and inclusion.
In his first administration, Trump barred federal contractors from conducting racial sensitivity training, and the Office of Management and Budget ordered federal agencies to identify any critical race theory and white privilege training in order to cut off funding of programs that suggest the “United States is an inherently racist or evil country or that any race or ethnicity is inherently racist or evil.”
With the chances of a Trump victory in November growing, I asked a number of scholars and political experts for their interpretation of the current political situation and what they foresee if Trump returns to the White House on Jan. 20, 2025.
Lanae Erickson, senior vice president at Third Way, a centrist Democratic think tank, pointed out in an email that the Biden debate debacle reinforced one of the Republican Party’s prime narratives:
Republicans have been trying to make the case that Democrats are the party of chaos: chaos at the border, chaos in blue cities, chaos in the economy with inflation and rising prices. However we move forward, we need to reassure swing voters that we are capable of restoring order, not fuel the perception that we’re chaos monsters.
For Biden “to prevent Trump 2.0,” Erickson continued,
It’s not enough to run hundreds of millions in ads, hold scripted rallies, and give a convention speech; the candidate himself, Joe Biden, must be able to forcefully and persuasively, in all venues including extensive media interviews, prosecute the case against Trump, as well as sell Democrats’ vision for progress.
Whether he is capable of making that case is the defining political question of this moment.
Jody Freeman, a law professor at Harvard, warned in an email that no one should bank on the Supreme Court to constrain the excesses of a second Trump administration:
The current supermajority of conservative justices has enacted such sweeping change in the last few years, all in the direction of rolling back fundamental protections for women’s rights, civil rights and the public health, and more broadly doing everything imaginable to disable the federal government (which they depict in the most negative terms) — all of which aligns with a radical right-wing agenda — that I am having difficulty seeing them as anything but partisan political activists.
This led her to suggest that
It seems entirely plausible to me that they will wind up enabling the emergence of an authoritarian president — especially with their decision to grant nearly blanket immunity from criminal prosecution to presidents for “official” acts, which the court reads broadly. Not only will Trump perceive this as carte blanche to do unspeakable things, but so will his supporters and enablers.
Richard Pildes, a law professor at N.Y.U., contended by email that even if the Supreme Court were to attempt to limit Trump’s actions in a second term, Trump is very likely to inflict significant damage:
There’s no doubt a re-elected Donald Trump would test the boundaries of institutions. Institutions are a product of law and softer factors, such as longstanding institutional practices and institutional culture, as well as norms about the proper considerations institutions should take into account in decision-making.
Even assuming courts enforce the law, there would still remain large areas of discretion various institutional actors would have, where these softer factors would also come into play. That’s where personnel particularly matters. Would the heads of important departments and agencies, and the 4,000 or so political appointees within them, be committed to upholding the proper role and boundaries of various institutions, or would they be prepared to override those constraints out of personal loyalty to a President Trump?
Trump has announced plans to again seek to convert roughly 50,000 top civil service jobs into patronage appointments, an initiative that “would upend the civil-service system that’s been in place since 1883 and further politicize the administrative side of the federal government,” Pildes noted.
A second Trump term could provoke a test of power between the executive and judicial branches of government, Pildes suggested:
It would not surprise me if there’s a direct confrontation between the courts and a re-elected Donald Trump. Judicial orders always are directed at subordinate officials to the president, but would a President Trump order his officials not to comply with a court order? Would those officials refuse him and adhere to the court order? If they did not, we would face a rule-of-law crisis, because the most basic element of the rule of law is that government officials comply with the orders of the courts.
Guy-Uriel Charles, a colleague of Freeman’s at Harvard Law School, argued in an email that
American democracy is at a very vulnerable point. We are a divided and fractured society attempting to build a multiracial, multicultural, multireligious, multiethnic democracy amid deep partisan polarization and significant economic inequality.
A Trump presidency presents a risk because Trump has shown a willingness and an uncanny ability to exploit those divisions. A populist demagogue can easily exploit and prey on these vulnerabilities and leave us more divided than we already are.
In addition, Charles wrote, a second Trump administration would be very different from the first, when he was essentially “an outsider and institutionalist Republicans were not willing to help him govern. Some of them saw their role as keeping him in check.”
Since then, Charles continued,
Trumpism has been institutionalized and normalized within the Republican Party. Trump is the unquestioned leader of the Republican Party. Trump will have the full talent and cooperation of the Republican establishment at his disposal.
Charles dismissed the idea that the Supreme Court would rein Trump in:
I don’t see the court as an ally or foe. Chief Justice John Roberts has generally resisted the notion that the court has a special responsibility for advancing democracy.
Nobody watching the court closely will expect the institution to protect American democracy from authoritarianism. The court is more like an ostrich. Institutionally, it is sticking its head in the sand and pretending that its rulings are nonideological and apolitical.
Kenneth W. Mack, also a law professor at Harvard, wrote by email that “A second Donald Trump administration could possibly threaten the survival of American democracy as we know it.”
For example, Mack argued,
Trump has promised to put his political opponents on trial — singling out President Biden and his family for instance. He’s given the American people every reason to take him seriously on that score, and it’s hard to see what, other than a Justice Department willing to push back against that impulse, would stop him from at least indicting some of his perceived political enemies — as a vengeful payback for what he believes are politically motivated indictments of himself.
What would happen, Mack asked,
if a victorious President Trump ordered the Federal Bureau of Investigation or the Justice Department to interfere with, say an election to Congress or a gubernatorial election?
The Supreme Court, in its recent presidential immunity decision, has told him that he’d likely be immune from future criminal liability for such actions, and the court has shown a willingness to look at questions of presidential power in a manner that would promote rather than moderate Trump’s vengeful impulses.
Will the Supreme Court defer to extreme uses of the presidential power to override civil service protections and to put the federal bureaucracy to partisan and authoritarian purposes? The court has shown a willingness to defer to broad presidential authority in its immunity decision.
While some scholars have compared the threats to democracy posed by a Trump presidency to the breakdown caused by the Civil War, Mack argued that the two are very different: “In the Civil War, both the Union and the Confederacy purported to uphold the continuity of American institutions, at least as each side’s government interpreted them,” adding that neither side “saw itself as fundamentally changing how government worked”
A second Trump presidency, Mack maintained, “seems entirely different, given that Trump and his backers have pledged to undermine core institutions that preserve modern American democracy.”
It’s difficult to say, Mack commented, “what would be a greater challenge for democracy — maintaining it while conducting a civil war or having a president who is committed to undermining it, in concert with possible allies in the federal bureaucracy, the judiciary and Congress?”
Jack Goldstone, a professor of public policy at George Mason University, was perhaps the most pessimistic of those I contacted: “Democracy in the United States — though few realize it — is already dangerously undermined. Democracy shifts to dictatorship first slowly, then suddenly.”
The forces undermining democracy in America, Goldstone wrote in his email, include declining trust in institutions, the failure of wages to keep pace with the growth in gross domestic product, rising inequality and resentment toward immigration.
“So the basic conditions for weakening democracy have already been building for decades,” in Goldstone’s view, while “the guard rails to protect democracy have eroded as well.”
This erosion, according to Goldstone, has diminished the strength of
(1) an informed citizenry; (2) a political elite committed to uphold the principles of democracy; and (3) a judicial system, especially the Supreme Court, that is determined to defend and protect the core principles of democracy, including equality of all citizens under the law, the impartial administration of justice, and adherence to the letter and spirit of the Constitution. All three of these are in the process of being trashed.
In this environment, Goldstone wrote:
It will only take a president who wants to take authoritarian control to complete the transition. Trump is clearly such a president, and his election — backed by think tanks who have planned what to do with near absolute power to restore a socially conservative, corporate-friendly, Christian-led America — will almost certainly end democracy as we have known it.
In short, Goldstone continued, “democracy will soon be over in the U.S. if the G.O.P. sweeps the November elections.”
In the case of Donald Trump, it is far more dangerous to underestimate than to overestimate his capacity to wreak havoc.
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