Reasonable doubt

In a major ruling from the U.S. Supreme Court on July 1, it held that American presidents have presumptive immunity from criminal prosecution for official acts. President Joe Biden responded in a speech attributing the decision to a pattern of Court attacks “on a wide range of long-established legal principles in our nation.” And on the Court itself, Justice Sonia Sotomayor dissented that the ruling isn’t just wrong—a mockery of the principle that everyone is equal before the law—but profoundly dangerous, inviting presidential tyranny. 

But many opponents of the decision claim it isn’t just wrong, or dangerous, but ultimately corrupt—the result of the Court having come under the control of a right-wing political faction: The Democratic Senate Majority Leader Chuck Schumer called the body the “MAGA Supreme Court”—a jibe associating it with the political movement around the former president Donald Trump—adding that “political influence trumps all in our courts today.” The reaction to a recent Court decision limiting the U.S. federal government’s authority to regulate businesses has been similar. It’s now conventional wisdom on the political left that the Court has been seized by a group of extreme conservatives.

On the right, meanwhile, it’s long been conventional wisdom that American society’s core institutions—not just higher education and the media but the state itself, including the court system—have been captured by a left-wing clique. It’s an idea Trump has invoked regularly. Now, facing several prosecutions, he argues the Democrats are using the legal system against him in a political “witch-hunt”—an argument popular among his supporters and at least plausible to others beyond them.

What to make of these competing claims?

Christopher W. Schmidt is a professor of law at Chicago-Kent College of Law. To Schmidt, there’s nothing new as such in today’s incursions of politics into the courts. It happened dramatically in the Civil Rights Era of the 1950s and ’60s, for example. And it’s happened chronically in subtler ways before and since. What’s new is how unwilling and unable the institutions around them are to support them—the Supreme Court, above all. When its integrity was challenged during the Civil Rights Era, the American legal profession, the mainstream media, and a bipartisan political center all rallied behind it—effectively. Now, with the politicization of the Court intensifying, support for it, and its fundamental legitimacy, is thinner and more fragmented than ever. Yet these institutions, and the public at large, are no less interested in it. To the contrary—making the Court a focal point of nearly relentless controversy …

Gustav Jönsson: What do you make of the view, in light of these recent rulings, that the U.S. Supreme Court is acting in effect as the agent of a political faction?