“If the President does it, it’s not illegal.” Back in the Watergate days, we used to hoot at that assertion, because we recognized it as a formula for dictatorship. And we’re a country of laws, not of men, or so said the civics textbooks. In our back pocket was the ultimate argument, the courts. And the Constitution, which with its separation of powers and brokering of functions, protected us from would-be dictators. We slept securely with that knowledge.
So Kennedy, the occasional swing vote on the Court, has retired. Within a few months– probably before the midterms– we will have to come up with answers to the slogan, “If the President does it and the Supreme Court condones it, it’s not illegal.”
The newspapers are all about the likely outcomes for Roe v. Wade. An important liberty was established by that decision, but not the only liberty. Let’s not forget what else might happen.
First, corruption, gerrymandering, voter suppression, the quashing of civil liberties, draconian anti-immigration measures and other devices to ensure an aging minority of very rich people retains the whip hand in this country. The Bill of Rights will be declared unconstitutional by a majority on the Court that won’t care about stare decisis, case law, controlling instances and other technical matters where law regulates itself (boiling down to such imperatives as “face the facts” and “be consistent”). The First Amendment will be reconstrued in ways that limit permissible speech and cripple the investigative powers of the press. The Second Amendment’s “well-ordered militia” clause will be reinterpreted restrictively, enabling the unlimited possession of arms by bands of irregulars, call them Tontons Macoutes or Siloviki, who terrorize the unarmed population in support of whatever the dictator’s hate campaign of the month is. And so on. If you want to know the future, look to Russia these days, or perhaps the Israel-Gaza relationship: an utterly asymmetrical power ratio between the rulers and a significant party of the ruled, and a lot of pillage going on with the approval of rubber-stamp courts.
But so long as there is enough to eat, five hundred channels of television, and some ongoing celebrity scandal, people will be cool with it, I guess. Those who aren’t cool with it are likely to put up resistance, and it will hurt. I don’t want anybody to get hurt, which is the deep reason for my belief in democracy and the separation of powers: they make it possible to mediate conflicts without the spilling of blood.