Biden Needs to Pack the Supreme Court Now. Then he needs to petition for a rehearing of Trump v. United States.

And he needs to do it before the election, if he really wants to save the Republic

I normally write about physics, philosophy and mathematics. I do have definite political views, but I prefer to share them only within the context personal discussions, leaving public political debates to the pundits. But after yesterday’s landmark decision by the Supreme Court in Trump v. United States, I feel compelled to wade into this area publicly, even if only with reluctance.

In case you haven’t heard, the Supreme Court decided on a case involving Trump’s claim of absolute immunity as president of the United States in his role in the January 6th, 2021 attack on the US Capitol. The court held that

Under our constitutional structure of separated powers, the nature
of Presidential power entitles a former President to absolute immunity
from criminal prosecution for actions within his conclusive and preclu-
sive constitutional authority. And he is entitled to at least presump-
tive immunity from prosecution for all his official acts. There is no
immunity for unofficial acts.

The immunity applies not only to Trump, but also to Biden and all future presidents.

It is hard for me to express just how catastrophic I perceive this ruling to be for the long-term survival of the republic. Sooner or later-and if Trump becomes president again, most likely sooner-a future president will use this to, in all but name, appoint himself Führer of America; it is an inevitable consequence of the fact that the ruling overthrows an arduously attained principle of the constitution, that all people are equal before the law. As of this ruling, the president is not equal to anyone else. He is above the law. Sooner or later, someone with enough greed and hunger for power who comes into the office will use this ruling to pull the trigger.

Trump’s first term gave only a small taste of the kind of actions we can expect from future presidents even before the eventual, final and inevitable worst-case scenario occurs. According to the watchdog organization Citizens for Responsibility and Ethics in Washington (CREW), Trump had 3400 conflicts of interest in his first term. These ranged from using his official platform to promote his businesses to charging officials for stay on his properties during official visits. More recently, Trump was reported to have pressed oil executives to give 1 billion dollars to his campaign, and in exchange he would pass executive orders or push legislation favorable to their profits. This would be at the expense of literally everyone else on the planet, since his actions would likely accelerate the calamitous consequences of climate change around the world.

Though highly unethical, much of this is probably legal, courtesy of prior disastrous decisions by the Roberts Court, most notably its Citizens United ruling. But while perfunctory, there still existed a few constraints on funneling money into politics up until now, such as requiring the use of political action committees to do what basically amounts to legal bribery. As of yesterday, the scope of legal bribery has likely been expanded to allow for a president to ask industry executives or any other ultra-rich donors to deposit money directly into his bank account in exchange for favorable official treatment, so long as the claim that the president did this in his constitutional purview goes through. And there is ample evidence that conservative judges are willing to let even the most absurd claims go through, so long as it aligns with their ideology. A particularly egregious recent example of this is the conservative Alabama in vitro fertilization (IVF) ruling.

But never mind those judges and their reckless, meritless ideological opinions. Yesterday’s ruling is more destructive to our democracy than all of their decisions combined. As Justice Sotomayor wrote in her dissenting opinion,

Whether described as presumptive or absolute,
under the majority’s rule, a President’s use of any official
power for any purpose, even the most corrupt, is immune
from prosecution. That is just as bad as it sounds, and it is
baseless.

and

The Court effectively creates a law-free zone around the
President, upsetting the status quo that has existed since
the Founding. This new official-acts immunity now “lies
about like a loaded weapon” for any President that wishes
to place his own interests, his own political survival, or his
own financial gain, above the interests of the Nation.

and

Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune [..] Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done,[..]. In every use of official power, the President is now a king above the law.

Now imagine a president who is intolerant of criticism and invokes the Insurrection Act to send the military to confront protests unfavorable to him. If, in his capacity as commander-in-chief, he orders the protesters shot, he now has immediate legal ground to claim immunity: he can simply claim that he did this within his “conclusive and preclusive constitutional authority” to protect the country against a national security threat, an insurrection, and that will be that.

I you don’t believe this, consider that we have already seen countless small-scale analogs of this every time a police officer needed to do practically nothing more than to claim that they feared for their life in order to get off for killing someone, whether they really did fear for their life or not. This evident societal blind trust in what authority figures claim has arguably already been normalized in America, particularly in the cases of those authority figures literally killing people.

The Military has killed civilian American protesters before, as when the National Guard was activated to confront protesters against the Vietnam war at Kent State University in 1970. The guard shot four protesters and wounded nine. Though eight of the shooters were charged, everyone was acquitted. And, as if to foreshadow the abject ethical gap between what today’s conservative judges profess and what they actually do, the presiding judge wrote:

It is vital that state and National Guard officials not regard this decision as authorizing or approving the use of force against demonstrators, whatever the occasion of the issue involved. Such use of force is, and was, deplorable.

right after clearing them of responsibility for the massacre.

The idea that the president of the United States might order the military to intentionally hurt American protesters is no longer merely hypothetical. In a stump speech late 2023 in Iowa, Trump all but promised that he will send the military into cities “to fight crime”. Now, imagine, just as happened in Kent State, the military begins to fire on protesters, but now hundreds die. Immune!

We are rapidly approaching a perfect storm that will transform the United States from a flawed democracy to a fascist state. These days, the term “fascist” is unfortunately thrown around all too loosely, both by the left and the right. This waters down its meaning and further contributes to our inability to see what we are approaching head-on.

When I use the this term, I mean something very specific, based on characteristics common to past regimes which are near-universally accepted as fascist, such as Mussolini’s Italy, Hitler’s Germany, Franco’s Spain and Pinochet’s Chile. The elements common to all of them are:

1. Slavish obedience to a leader figure at the top of an authoritarian, hierarchical power structure.
2. Self-justification in terms of nationalism, tradition and religion.
3. Self-definition in terms of supposed superiority over antagonist groups, usually ethnic minorities, LGBTQ, immigrants, leftists and liberals.
4. Endorsement of government control over media, academia, corporations and labor.
5. Endorsement of illegitimate methods of acquiring and maintaining political power, such as restricting the voting ability of people who are likely to be opposed, rigging elections and refusing concessions when losing fair elections.

All five of these elements characterize the Republican party of today, so when I call it “fascist”, I do not mean it in a polemical or rhetorical sense but in a literal and definitional one, because what today’s Republican party stands for precisely matches what I understand that term to mean.

The perfect storm we are approaching has at least the following elements:

1. A candidate for president who has given ample evidence of his complete lack of ethical standards or concern for upholding and defending the constitution, and who demands complete loyalty while giving none, leading one of the two main parties which satisfies reasonable criteria for being fascist.
2. A rival candidate who is as of now widely perceived as too old to be fit for the job, leading a party that appears to be increasingly fractured as we approach election day.
3. A substantial portion of the population, perhaps between one fourth to one third, which has adopted an attitude which unequivocally puts the fascist party’s candidate for president ahead of the constitution.
4. The existence of an ultra-rich donor class which owns an appreciable portion of the entire American society’s resources and which financially supports in a significant way a transition to a fascist state, either for its own further enrichment or for ideological reasons.
5. The existence of a concrete and extensive blueprint for turning the United States into a fascist Country-Project 2025-, ready to be implemented by fascists who gained valuable experience in government service during Trump’s first term.
6. The existence of a number of government employees with power at the local, state and federal level, most notably conservative judges, who have adopted a fascist ideology in guiding their official actions.
7. The Supreme Court Decision in Trump v. United States, which essentially gives carte blanche to a sufficiently power-hungry and sociopathic occupant of the highest office to end the republic.

Whatever political alarm bells there are, they should be ringing loudly and incessantly by now!

On the last point, I’d like to mention that though it is not widely known today, conservative German courts and judges in the Weimar Republic were key allies in the Nazi Party’s rise to power. Buttressed by a profoundly illiberal intellectual foundation devised by a conservative German constitutional lawyer, the Weimar judges would routinely let off lightly murderous right-wing terrorists undermining the republic while fiercely prosecuting communists. The final nail in the Coffin of the Weimar Republic was arguably a decision by the German Constitutional court to legitimize an unconstitutional coup d’Etat of the Prussian government by chancellor von Papen in July 1932. It was legitimized by the conservative court because the coup replaced a democratically elected social democratic government by one run by von Papen and his conservative and authoritarian cronies. This would pave the way for Hitler’s appointment to chancellor less than a year later.

One does not need to be constitutional lawyer to understand that yesterday’s ruling by the Supreme Court violates our constitution, and I cannot help but be reminded of the Weimar Republic’s highest court’s foolish but fateful decision to violate its own constitution.

One has to also keep in mind that most dictators commit the atrocities for which they are most remembered only after they had already been in power for a while. Had Hitler been out of power before 1939, six years into his reign but before the start of World War 2 and the holocaust, he would probably be remembered today only as a minor historical figure.

Just because Trump’s first four years looked a lot like the clownish caricature of a dictator’s reach for power, it does not mean that now, with a fascist system and infrastructure all but ready to be put into place, a second Trump term won’t be far more oppressive, bloody and destabilizing for the entire world.

So, what can be done about it?

I, an ordinary citizen in a nation of about 330 million people, can do comparatively nothing beyond trying to raise awareness and using my vote to help prevent the fascists from coming to power. But I can at least suggest an idea on how those who have far more power than I might be able to do something significant about it. The idea is very daring and highly controversial, but I think that we are already beyond the point at which any relatively uncontroversial action could save the republic.

I am not a lawyer and my idea should not be taken as legal advice. Rather, it is a suggestion to seriously consider various possibilities surrounding an idea to save the republic from the consequences of the aberrations of the Roberts Court.

In my view, Joe Biden needs to increase the number of justices of the Supreme Court, and then immediately submit a petition for a rehearing of Trump v. United States so that the newly constituted court can reverse it. And he needs to do it before the November elections to prove to the public that this power grab was intended to curtail the president’s permanent power to break the law with impunity.

The constitution does not specify the number of Supreme Court Justices, and in fact their number has varied over time until it was set to consist of a Chief Justice and eight Associate Justices by an act of Congress in 1869. The term “Court Packing” was coined to refer to the Judicial Reform Procedures Bill of 1937; this bill reflected the response of the administration of Franklin D. Roosevelt to a lot of resistance from the Supreme Court to the implementation of his signature New Deal Policies.

The central provision of the bill would allow the president to appoint an additional justice for every member over the age of 70, up to a maximum of six justices. The bill eventually failed.

More recently, “court packing” has come to refer to any effort to manipulate the court. Indeed, a move by the fascist party in which it removed a stipulation devised to block Merrick Garland’s appointment to the Supreme Court nine months before the end Obama’s presidential term in order to allow Amy Coney Barrett to become Associate Justice during the last three months of Trump’s presidential term has been called “court packing”.

Court packing has a major problem: it tends to de-legitimize the court, violates the system of checks and balances and thereby hurts democracy. This is an excellent reason for why it should only ever be considered as a last resort, if at all. However, as of now, I would argue, conditions have been newly set so that this consideration no longer applies.

My argument is three-pronged and can be summarized as follows:

A US Supreme Court which

a. puts itself in a position to become complicit in future criminal activities, or

b. categorically violates “Equal Justice under law”, or

c. fails to uphold its sworn duty to defend the constitution, particularly in situations that could lead to its complete dismissal,

can only do so by forfeiting its own legitimacy. The Court’s decision in Trump v. United States does all three and therefore forfeits its legitimacy. And a court which already lacks legitimacy cannot be de-legitimized.

The first prong:

Think about it: why do we consider a court to be legitimate? Why do we ever consider any party to whom we have given the privilege of judging a matter for us legitimate? It has to be an expectation that the judgments will be dispassionate, fair, and considered. When we consider criminal matters, it has to be, in addition, an expectation that the judgment will uphold the rule of law, which is to say, that it opposes the breaking of law, or, in other words, that it opposes criminal acts.

By granting absolute immunity to the president to allow him to break the law, to commit virtually any criminal act with impunity, so long as it is within his constitutional purview, the Roberts Court removes the legal incentive for the president not to commit certain criminal activities. But by doing that it, in effect, puts itself in a position of becoming complicit in the future commission of those criminal activities, since they would likely not have been committed if the prospect of punishment, applicable to everybody else, still existed. And a court that puts itself in the position to be complicit in the commission of criminal activities has no legitimacy to be lessened or lost.

The second prong:

As a nation in which Native Americans, African Americans, Women and other minorities suffered for a very long time from various forms of discrimination and inequity, the principle “equal justice under law” was hard fought for and attained at a great cost to the Nation. These four words are engraved at the entrance of the supreme court, and the Supreme Court itself claims on its website that

EQUAL JUSTICE UNDER LAW”-These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States.

The Roberts Court decision violates this in a categorical manner because it creates a new category of citizens-American victims of crimes by the president sanctioned under Trump v. United States-who suffer a lack of both equal justice and equal access to the law. A court which fails to fulfill its self-professed “ultimate responsibility” is a court which fails to fulfill the very purpose of its existence. It cannot therefore be considered legitimate.

The third prong:

The Constitutional Oath taken by a prospective Supreme Court Justice is

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Trump v. United States reflects a direct violation of the sworn duty of Supreme Court Justices to defend the constitution because it violates it. It is not just a small violation but of the worst kind, because there is a straight conceivable path from Trump v. United States to a dictatorship that renders the constitution as a whole moot. If the oath is to mean anything, such a wholesale violationby the Courth has to be interpreted as forfeiture of its legitimacy.

All three prongs lead to the same conclusion, that the Supreme Court has forfeited its legitimacy. Even before yesterday’s decision, the Roberts Court has issued rulings that have the effect of hollowing our democracy out from within, such as decisions which constrained the voting rights of the poor and the minorities, and decisions which expanded the powers of corporations while reducing that of ordinary Americans.

In addition, most of the fascist Justices on the Supreme Court were already under a tarnished legitimacy cloud. As mentioned, Justice Barrett came to the court under a fascist court packing scheme. Justice Kavanaugh joined the court despite credible allegations of sexual assault. Justice Thomas was caught basically secretly accepting bribes for over 20 years, and Justice Alito has been also basically secretly accepted bribes while failing to disavow if not outright endorse strongly partisan views which some have likened to “almost treason”.

I find that much of the field of law, and of the activities of lawyers and judges, consists of socially constructing reality. For example, we call judges “your honor”, rise when they enter the court, let them direct the proceedings and obey their rulings because it is all supposed to entrench a reality of the court system as one which rightly demands our respect and submission.

But socially constructed reality is, in the final analysis, nothing more than make-believe. It is not like the law of gravity, where no amount of newly created laws, or rulings on laws, will change the fact that if you step off a cliff, you will fall. The make-believe is useful so long as it benefits society by helping it function harmoniously and in a manner that helps each of its member develop their potential and pursue their happiness.

However, now, the Supreme Court, abetted by politicians, lawyers and the media, has socially constructed a reality which demands that a blatantly unconstitutional ruling be treated as though it were constitutional, and that justices who passed a ruling which blatantly violates our constitution should still be treated as if they followed the constitution. Furthermore, the violation is so significant that it is bound to eventually bring about nothing short of the end of the Republic. It is time to call out the Emperor’s new clothes.

Supreme Court Justices are neither Gods nor prophets nor saints. At the end of the day, they have the same bodily needs and functions as everybody else. They are subject to the same biases, mistakes, moral shortcomings and other flaws as any human, sometimes even more so. And they have previously passed many rulings which were subsequently found to be in error, sometimes egregiously so.

One of the most profound erroneous rulings of the Supreme Court, Dred Scott v. Sandford, according to Wikipedia,

is widely considered the worst in the Supreme Court’s history, being widely denounced for its overt racism, judicial activism, poor legal reasoning, and crucial role in the start of the American Civil War four years later.

Perhaps it would not have been possible, but would it not have been worth the effort to explode the make believe of socially constructed reality and acknowledge that by making this decision, the Taney court forfeited its legitimacy, and use this as a springboard for reconstituting it to a Supreme Court more faithful to its fundamental role and responsibility toward the constitution and the American people, rather than allowing the socially constructed reality to persist and draw the American people inexorably toward a civil war that would cost over half million American lives and scar the Nation to this day?

We are only at the beginning of understanding a Supreme Court decision which may well eventually dwarf the horrible and tragic costs of Dred Scott.

The fact that the Roberts Court cannot even get itself to formulate and uphold a code of ethics is not just crystal clear evidence of how benighted, corrupt and unfit to defend the constitution it is, but highlights how a lack of any check on the powers of the Supreme Court will eventually doom our Republic. (I personally would be in favor of a constitutional amendment that allows for a National referendum on recalling Supreme Court Justices, but that is a completely different topic.)

Normally, in order to change the Judicial composition of the Supreme Court, Congress has to pass a bill to that effect. Since Democrats control the Senate but not the House, and the fascists will under no circumstance support this move, there seems to be no possible prospect to go this route.

Instead, Biden could simply issue an executive order authorizing himself to appoint Justices to the Supreme Court, using Trump v. United States to argue that he is doing so under his constitutional purview to protect the Republic. This is a blatantly illegal maneuver, and under any other circumstances, I would have been strongly opposed to it. But precisely because it vividly demonstrates just how dangerous the Roberts Court ruling is, and because it is intended to eliminate this danger before it causes major harm to the Republic, I endorse it for this particular and peculiar situation, and then only if it is immediately followed up with a petition for rehearing Trump v. United States with the intent to have it overturned. Without the petition, I would be immediately against it, as I want neither a dictator who belongs to the fascist party, nor one who belongs to the Democratic party.

A petition for a rehearing is possible but usually not made because it is most often denied. But a reconstituted court in which the six justices who violated the constitution can be overridden and which understands the dangers of Trump v. United States would surely grant it so as to remove this new power of the president. And by removing the permanent power of the President to commit criminal actions with impunity, the court would begin the long process of rebuilding the legitimacy that the Roberts Court so foolishly squandered. The idea that packing the court could paradoxically help build its legitimacy, is not that new, by the way.

The biggest problem with this route, as best as I can tell, is that presidential executive orders are subject to judicial review. Since the order would ultimately affect the very entity that has the authority to review it, this would surely amount to a constitutional crisis. But I would argue that the constitutional crisis is already here; it began, at the latest, with the Supreme Court’s blatantly unconstitutional and antidemocratic ruling in Trump v. United States. I would use the lack of legitimacy argument given above to argue that the Supreme Court has voided its authority to review this executive order. However, here is where an actual constitutional lawyer with technical expertise could advise how realistic this idea is, and what further considerations need to be taken account of.

Also, it has to be kept in mind that the loudest voices condemning this move, the fascists, are themselves not interested in saving the republic at all, but are using the crisis as a pretext for their own pursuit of power which, if successful, will in the end lead to the destruction of our Republic. This can be seen by the fact that an analogous power grab by Trump, not to eliminate a dangerous power of the presidency but to extend his power and finances would be welcomed and cheered by the fascists, as they have done with other grabs by Trump.

I am under no illusion that this would be a very risky maneuver, not the least because in the longer term, it could be used by the fascists as an excuse to replace the republic with a fascist state. That is why under any other circumstances, even if followed by my favorite candidate, I would be vehemently opposed to it. But the republic now faces a serious existential threat. Should we just hope and wait until the cancer kills the body, or should we take extreme action to to render the cancer less harmful? At bottom, fascism is a particularly dreadful form of intolerance, and intolerance can only be fought with intolerance to intolerance.

The Democrats, under the leadership of Biden, had more than three years to convince the American public that not only do Trump and the Fascist Party represent exclusively the interests of Trump and those in the top fraction of a percent in wealth, respectively, but that they, the Democrats, are working in the public’s interest. I see this as their most basic political responsibility. The fact that Trump has been marginally ahead of Biden in surveys in the last few months is evidence to me that they have so far failed at fulfilling it.

A failure to meaningfully counteract fascist propaganda coming from conservative media, reinforced by algorithms that lead to the creation of fascist echo chambers and information bubbles; a continued insistence on touting a good economy that must feel like gaslighting to those who can barely make ends meet, a failure to prevent significant amounts of inflation, and a continued failure to meaningfully separate support for Israel from support for Netanyahu are all likely costing the Democrats a tremendous amount of votes, and Biden’s failure to present the persona of a mentally agile candidate at the presidential debates (and elsewhere) may well end up sealing our fate.

What I am proposing here is a virtually unprecedentedly bold and fraught move. Unfortunately, Joe Biden is not exactly known for carrying out bold moves, and the Democrats are not exactly known for having strong spines, so it is extremely likely that this idea will remain just that.

But if it was carried out successfully so as to overturn Trump v. United States and help prevent further fascist rot of our republic, then the only previous action by a US president that I can think of which is at least half-way similar is Abraham Lincoln’s decision to prevent the Secession of the South.

Surely, at the time Lincoln made his decision, there must have been fears that it would lead to the end of the Republic or perhaps that he might be doing this out of hunger for power, rather than a sense of patriotic duty. But nowadays, we consider him among the greatest of our presidents precisely because he made the difficult and risky decision to save the Republic and followed through. Joe Biden is not currently a great president, but if he succeeds in averting the existential threat of fascism, he may yet become one.

If you feel that this idea is worth being discussed, please share it with others, especially with those who have a good knowledge of law, politics, philosophy and history. Maybe even if this idea is too far out or preposterous, it will lead to other, more feasible ideas that could be implemented to counteract the fascist threat our society currently faces.