Suddenly, our democratic Republic is under siege from a reckless and unlawful administration bent on upending the constitutional order. Republicans with thin majorities in the House and Senate are silent, out of fear or solidarity or both. Early resistance has largely taken the form of emergency law suits aimed at blocking the lawless actions of Trump loyalists, with the expectation that the showdown over the unfolding coup will eventually play out in the Supreme Court.

For a more comprehensive understanding of the forces that shape the current court and its decisions, the Spectator presents this discussion recently convened by the Court of History, a non-profit whose purpose has been to expose the false history of originalism and textualism in Constitutional jurisprudence, and to promote civic education on the emerging threats to the Constitution and the rule of law

Contributors include Sidney Blumenthal, author, presidential advisor, and co-founder of Court of History; Rep Jamie Raskin; Norman Ornstein, of the Heritage Foundation; Lisa Graves, executive director of True North Research and a regular contributor to the pages of The Washington Spectator; Mark Medish, a former senior director on the National Security Council and co-author of the influential Washington Spectator series Dancing in the Dark; and Sean Wilentz, the Princeton historian.

– Ed.

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Sidney Blumenthal: Welcome. We have held convenings on originalism and the latest distortions of the law culminating in the presidential immunity decision, and the Christian Nationalist movement’s effort to take over the courts as an instrument of its Theocratic agenda. Please consider this discussion as a broader orientation on the Trump administration’s assault on the forms and substance of the Constitution.

Just recently we’ve seen the form of the Advise and Consent function of the Senate subverted, in the nomination of Pete Hegseth for Secretary of Defense. Senator Joni Ernst of Iowa—a Republican with a history of being sexually assaulted, who had made that her issue and who had focused particularly on women in the military—was the target of a systematic campaign of intimidation, and she caved. So were other witnesses, with the Trump team consciously using the Brett Kavanaugh playbook that they developed in Kavanaugh’s confirmation hearing. Ernst refused to meet with women veterans who were victims of sexual abuse. The FBI did not interview other witnesses who demanded to be interviewed, including Hegseth’s second wife. And Senator Roger Wicker, the Republican chair of the committee, forbade a customary second round of questions to protect the unfit nominee.

We also have a nominee for Attorney General who felt constrained to say who won the 2020 election, and an FBI nominee who published hit lists, so we are at a unique moment in our history. The only comparable examples I can think of are the Alien and Sedition Acts of 1798, and of course it’s telling that Trump wishes to revive the zombie law of the Alien War Act of 1798 for his migrant roundups.

The other example I can think of is when President-elect James Buchanan, elected in 1856, conspired with members of the Supreme Court before his inauguration to ensure the majority opinion in Dred Scott that would forbid the Congress from passing any law to prohibit slavery’s extension into the territories. The intent was to crush a new Republican party, a very different Republican party, but instead it galvanized it and eventually Lincoln was nominated and elected. So we’ll see what happens four years from now.

We have assembled a superb panel on the eve of shock and awe to explain the threats to the Constitution and how the rules of the game will be bent and changed. Our first panelist is Congressman Jamie Raskin of Maryland, the ranking member of the House Judiciary Committee who was a member of the House Select Committee to Investigate the January 6th Attack on the United States Capitol.

Jamie Raskin: I was thinking back to Bush v Gore (in 2000), and everybody could tell right then—when the Supreme Court intervened to stop accounting of more than 100,000 ballots and declared the election over—that the Court had inserted itself right into the political process. But we need to think about the more subtle and structural ways that the Supreme Court has distorted and thwarted democratic politics in America.

There’s the 2013 decision, Shelby County v. Holder, where the court essentially dismantled the Voting Rights Act by invalidating the pre-clearance formula (see “The Supreme Court vs. Black Voters in Alabama,” Washington Spectator). We saw it recently in Trump v. Anderson, where the court dismantled the traditional power of the states—which the Supreme Court had always insisted upon—to control ballot access.

The Justices were horrified at the idea that a candidate could be excluded from the ballot under the very plain, original meaning of Section Three of the 14th Amendment, because they said it might lead to a checker board situation where the presidential ballot looks different in Colorado than it looks in other states. This of course is the system they’ve insisted upon for decades and decades, and which is why even in this election, Bobby Kennedy, Jr. appeared on the ballot in a bunch of states and was taken off in other states, and Marianne Williamson appeared on some states and not on other states. That is the American system.

There’s a whole series of Supreme Court decisions like this that channel and distort and thwart the democratic process, and people need to understand the ways the Roberts court has been putting its thumb on the scale to affect our politics. We have therefore not just an ethical crisis on the court, which is infamous and which the public has a very clear understanding of, but we also have a major constitutional and doctrinal and philosophical crisis too, as the court acts like a corrupt liquor board in the suburbs of Chicago.

There is no attempt to rationalize any of the doctrine anymore. Textualism is out the window, as we saw for example in the presidential immunity case. Originalism is out the window, as we also saw in the presidential immunity case. The court’s decisions can only be understood through a completely partisan prism, and that’s generous because it’s not really a political party, it’s one guy whose interests are consistently advanced by the workings of the court.

We have therefore not just an ethical crisis on the court but we also have a major constitutional and doctrinal and philosophical crisis too, as the court acts like a corrupt liquor board in the suburbs of Chicago.

When Donald Trump has had to go up against judges who are not under his spell, or not his appointees or under his party control, when he’s gone up against juries, he’s lost. With all of the cases that come before Trump-named justices, he’s won. Though I will say that there have been Trump-named judges who were part of the more than 60 federal and state court judges who rejected and repudiated every bogus claim of electoral fraud and corruption that were brought after the 2020 election.

So for a while at least, the courts are not going to be our ultimate salvation here, and certainly not if we’re talking about going up to the Supreme Court,. There are clearly some excellent district courts and circuit courts that are still behaving like judges, but really the Constitution is going to have to be defended in every other pocket of government. Not just in the judicial branch, but as much as we can in the House and the Senate at the federal level. The Democrats on the House Judiciary Committee are going to stand strong. We can go to the Democrats in the Senate with our friend Senator Whitehouse. They’re also going to stand strong, and of course, they have the filibuster right now, which will be a meaningful check, at least for a while, against everything the Republicans want to do.

But you know, more significantly, we’re going to have to have people everywhere standing up for the Constitution—in legislatures and city councils and school boards and universities, labor unions, businesses, and of course, historians and academic civil society, the not-for-profit sectors, it’s going to take everybody standing together as constitutional patriots to get us through this period.

So thank you for taking that view from eternity, as Spinoza recommended, giving us the long historical perspective that’s going to help us get through this.

Sidney Blumenthal: I’d like to introduce Norm Ornstein now, who is an eminent American political scholar at the American Enterprise Institute, and co-host of the Words Matter podcast. He is the co-author with Thomas E. Mann of It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism.

Norman Ornstein: Thanks so much, Sid, and thanks to everybody who is a bulwark against tyranny and oligarchy. I did notice that the most searched word after President Biden’s farewell speech was oligarchy, I’m hoping a lot of people found out what it was and will be alarmed. And let’s all be very grateful that we have Jamie Raskin as a bulwark protecting our democracy and now serving as the ranking member on the House Judiciary Committee.

The framers at one level gave significant power to a president, but also recognized full well that we could end up with somebody who would tilt towards tyranny. They built in all kinds of guardrails—or hoped that there would be guardrails—against those things happening. My greatest unease, my greatest fear, my connection to reality right now is that the guardrails are disappearing, and that’s true across the board. We know that they are disappearing inside the government. Jamie talked about the Supreme Court and it’s very clear that there are at least four and far more often five Supreme Court justices who will cave to Donald Trump and try to put limits on Democratic presidents.

I will make a prediction right now about their Chevron decision, which dismantled the power of executive agencies and said that they had to be specifically directed by Congress. When we see agencies under Trump, including the FCC with a runaway radical Brendan Carr taking over who will try to intimidate television stations and other outlets, I would bet you that this Supreme Court will find a way to let that happen. Or they’ll refuse to take a case that would put that agency and others back in the same place, put limits on executive power.

Donald Trump has issued a whole series of executive orders and actions, some of which are blatantly illegal, and I would bet this court turns a blind eye to them. I’m going to come back to a strategy in a moment, but let me also add that we have a Congress that is supine. We don’t just have compliant Senate, but let’s also add something you didn’t mention, but we need to, which is a Speaker, Mike Johnson, taking a call from Donald Trump and removing Mike Turner as the chair of the Intelligence Committee, a MAGA guy but one who stood for the integrity of the intelligence community and its professionals and who stood up to Vladimir Putin and his invasion of Ukraine. He was removed and replaced with somebody who is going to be fodder for Donald Trump and by extension for Vladimir Putin, and that is a profoundly disturbing action that follows on many others.

But I also want to say that, while Jamie said good things about Democrats in the Senate and deservedly for Sheldon Whitehouse, let’s also note that Democrats had the majority in the Senate for two months from November fifth until January third and failed among other things to hold pre-confirmation hearings on some of these monstrous nominees.

For example, holding a hearing on Pete Hegseth would have enabled them to bring in the victims of sexual assault, including the alleged, I will say, rape victim, who was given a substantial settlement by Hegseth for a nondisclosure agreement, and who refused to give up that agreement. But she did courageously agree to come in and testify anonymously—to avoid those death threats, the ones that we know go back to Christine Blasey Ford— to enable lengthy questioning. They could have included, of course, some of these other horrible nominees.

Nor were there hearings during that time on the Schedule F Executive Order—which is going turn us back to the worst part of the spoils system, and which I believe is also illegal. We have a web of protections for civil servants, and that schedule, for those who don’t know it, will enable Trump to basically remove at will experts and career civil servants and replace them with his flunkies. There are numerous other illegal actions, including those that will be enacted on detention and deportation, and in many other areas.

And I should also note that the problems with Congress go back much further. We have emergency powers that Congress has never taken away, going back many decades. The Telecommunications Act of 1934 gives the president the authority, if he declares an emergency, to in effect take over electronic communications networks, radio, television, and any others that he can. Under the Transportation Act, he can take over the airlines, the railroads. This was all done by Congress under the assumption that we would have a president who believed in his oath of office and would only do such things when there was a genuine emergency. We could go back to the Insurrection Act as well.

Donald Trump has legal powers that he should not have and has a congress and a court that will grant him illegal actions because they will be suppine to him. And at the same time, where we would hope we would have pushback from a free press and civil institutions and civil society stepping up to the plate, we are seeing the opposite.

Oligarchs who control our major media outlets are genuflecting to Donald Trump—and not just the Washington Post’s Jeff Bezos, who gave $1 million to Trump’s inaugural, which is going to go into the pockets of the Trumps, and then gave $40 million to Melania Trump for a farcical self-produced biographical film. And of course, you have all of these oligarchs giving money and having prime seats at the inaugural, so the press corps cannot be relied upon. And I fear very much that in the aftermath of the TikTok decision at the Supreme Court, and with the actions that Trump is likely to take, that we may very well see Elon Musk or his agents buying TikTok, and having control over both TikTok and Twitter. And of course with Mark Zuckerberg basically giving in on Meta and Facebook, we are not going to have the kind of pushback that we need.

So just finally a couple of points. The Republicans have had in Amarillo, Texas a single district judge, Matthew Kacsmaryk, who issued multiple nationwide injunctions on cases brought by the far right where they knew they could get the outcome that they wanted, and then ultimately have a Supreme Court rubber stamp them.

Democrats now need to find—not a district, there is no single district like Amarillo—but there are jurisdictions where there are two or three judges where with a lawsuit you can get a nationwide injunction to block schedule F until it can be adjudicated. And while the Supreme Court may not go along, at least we can show what kind of a lawless and unconstitutional act this is.

And do that for other instances, including by the way this law that Congress is about to pass with help from some Democrats, that would enable detention of undocumented people who have not even been charged or formally accused of any crime, including aan accusation, say, of jay walking. So we need to have action on that front.

Oligarchs who control our major media outlets are genuflecting to Donald Trump—and not just the Washington Post’s Jeff Bezos, who gave $1 million to Trump’s inaugural, which is going to go into the pockets of the Trumps, and then gave $40 million to Melania Trump for a farcical self-produced biographical film

And at the same time, the senate Democrats need to fully use the powers available to them that Republican senators did. That includes not just the filibuster, but the blue slip to block executive appointees, the way that we saw Tommy Tuberville, Josh Hawley, Tom Cotton and others deny and block scores of Biden nominees. And if Republicans throw those things out, it shows exactly where they are and then there will be opportunities, God help us if there are elections where we can recapture a majority, or maybe we can undo some of the untold damage that we’re likely to see over the next two years or four years.

Sidney Blumenthal: Now I’d like to introduce Lisa Graves, who is the executive director of True North research and managing director of Court Accountability, and these two groups have been absolutely central in exposing the ethics crisis of the Supreme Court. She previously served as the Chief Counsel for Nominations on the Senate Judiciary Committee under Senator Patrick Leahy, and Deputy Assistant Attorney General at the Department of Justice during the Clinton administration.

Lisa Graves: Sidney asked me to talk a bit about Russ Vought, but I also wanted to place my comments in the context of the work I primarily do, which is around the Supreme Court. What Norm said I think is exactly right—in terms of the likelihood that this Supreme Court, thjs Roberts court, this court that has been captured as Senator Whitehouse has so well documented, that this court is unlikely to stand up to most of the things that Donald Trump is seeking to do.

And we know that in part because John Roberts literally paved the way for Donald Trump to be elected last year. He did so by the intervention in that Colorado case that Norm mentioned, where the court stopped the state of Colorado from enforcing the plain language of the 14th Amendment. The Roberts Court and Roberts himself intervened in trying to take down one of the major charges facing the people who assaulted the Capitol on January 6th, and the effort to interrupt that official proceeding of the counting of the Electoral College votes, and of course, most significantly, the literally unprecedented, outlandish and outrageous decision to grant Donald Trump immunity from criminal prosecution, sending a signal to voters that Trump did nothing wrong and in fact could do nothing wrong as long as it was cloaked in official acts. It is indeed, the most profoundly disturbing decision ever issued by the Supreme Court, standing alongside Dred Scott in terms of just the hubris, the arrogance and the destructive impact of the decision.

We’ll see what happens as a result of it, because now Donald Trump enters the White House having taken the oath of office that has been greatly diminished in terms of what it means to faithfully execute the laws by a man who has now been given immunity not to do so. And then within seconds of taking that oath that Roberts will administer, Donald Trump signed into law executive orders that were written by this secret group with Russell Vought and others to basically destroy longstanding legal traditions in the United States by invoking emergency powers in an array of ways.

So we have a Supreme Court that has been captured, that is behaving as Representative Raskin said, not merely as a partisan court, but as a court in service of one man, in service of Donald Trump. As Norm mentioned, we are going to need courts that have integrity, judges with integrity to stand up and protect the rule of law. Yet at the same time, because of this Roberts court, we are entering a new period in which now we’re at this divergence, this point where we’re going to have rulings by the court that are unjust, that are inconsistent with our long constitutional history, and inconsistent with longstanding precedent, in service of this oligarchic authoritarian leader, who now will hold the White House.

And most significantly, (you have) the unprecedented, outlandish and outrageous decision to grant Donald Trump immunity from criminal prosecution, sending a signal to voters that Trump did nothing wrong and in fact could do nothing wrong as long as it was cloaked in official acts. It is indeed, the most profoundly disturbing decision ever issued by the Supreme Court.

As Norm mentioned and as Sidney mentioned as well, one of the things that we’re going to be seeing is this fight for what’s known as Schedule F. We have a website called Project2025admin.com that includes material about this particular proposal as well as the individuals involved. And on courtaccountability.org we also have material about Russ Vought and also this notion, this other related issue which we can talk about briefly on empowerment—that is, who has the power to spend money in our government and where that money goes.

The schedule F issue is a genuine assault on the functioning of our government. Russ Vought with Donald Trump at the end of 2020 tried to put this plan in place, to basically change whether people who work in our government are civil servants or not, or whether they’re merely political appointees who don’t have to go through the career appointments process, the merits process for determining whether they’re qualified. Instead, not content with having four to five thousand political appointees already that are part of The Plum Book that he can appoint, they want to add another 30, 40, maybe 50,000 employees to designate them as political so that they can put their cronies in place.

The list that they’ve already compiled includes toxicologists and administrative assistants, people who have no policy-making role but have jobs to implement our laws, and this cuts across government. It includes not just the Office of Management and Budget that Donald Trump has installed Russell Vought in, but all the agencies, OSHA, affecting worker safety, our atmospheric agencies and oceanic agencies where we’re obviously confronting substantial challenges in terms of climate and weather. All the agencies that deal with emergency, FEMA Emergency Management, the Justice Department, the FBI, agency after agency will be larded with people who are loyalists.

This is not just a return to the patronage of years in the past, a hundred or more years ago, as Norm mentioned, but in fact poses tremendous threats to the implementation of basic policies, Social Security, Medicare, Medicaid, veterans rights. How are these programs going to be implemented, especially when you have people hand-picked by Trump, including Vought who has sought to vilify anyone who is a Democrat, anyone who voted for a Democrat, anyone who is a progressive. It is of course the right of civil servants to have their own political beliefs while they’re implementing our laws.

What the Trump administration chaffed under in the first four years in the first administration was the notion that there would be anyone who would actually follow the law, serve the law, follow the rules of the Justice Department, rather than just do whatever Donald Trump declared he wanted and needed from his loyalists. And so Russ Vought, who has described himself as a Christian Nationalist, who has described himself as someone who wants to infuse his Christian ideology into our law, who wants a total ban on abortion, who has a hysterical sort of opposition to the notion of our federal agents and agencies doing the work of the American people versus doing exactly what they want on this loyalist plan, he is a profound threat to the functioning of our government.

The schedule F issue is a genuine assault on the functioning of our government. This is not just a return to the patronage of years in the past, a hundred or more years ago, as Norm mentioned, but in fact poses tremendous threats to the implementation of basic policies, Social Security, Medicare, Medicaid, veterans’ rights.

I’ll just end, I suppose on what might be a positive note, or I guess it is for me, I’ve been taking some solace in recent weeks in thinking about what Albert Camu spoke about, about finding in the middle of winter an invincible summer. One of the things we have to do as we move forward in facing this crisis in our Constitution, in our nation’s future, is try to cultivate that invincible summer, no matter how intense the winds are that are raging to try to move America in the wrong direction and take us away from the rule of law and the advance of justice.

Sidney Blumenthal: I should note that Lisa has completed a manuscript on John Roberts and his court, and it will be published by Hachette in September. It’s called Without Precedent and we’re going to do some work around it and it will be subject of future webinars at the Court of History.

Mark Medish is a lawyer, he served in the Clinton administration and on the National Security Council as the senior director for Russian and Ukrainian affairs. In 2020, he co-founded Keep our Republic, a nonpartisan civic organization to promote trust in the electoral system, particularly on the state level.

Mark Medish: Back in early 2020, Donald Trump made a very interesting boast that he had powers that people weren’t aware of. This was in the spring of 2020, COVID had just started, the Black Lives Matter movement was underway. and he made this somewhat sweeping and ominous statement, and the important thing to understand in the spirit of situational awareness is that he was right. The president has quite enormous executive powers, including emergency powers, that are actually not that well understood. I will take a few minutes just quickly to outline the architecture of those powers in the Constitution, and why it’s so important that the use or abuse of those powers risks doing really serious damage to what we understand as the operating system of the republic, as we’ve known it in modern times.

If these powers are not interpreted and implemented in good faith, we could be confronting a major constitutional crisis, and there have already been warning signs that that this might lie ahead. In giving talks, I try to emphasize to people that for Trump 2.0, he has declared he wants a paradigm shift. I’m not sure he uses that phrase, it’s an overused metaphor, but it’s a paradigm shift not only about substantive policy areas. It’s also a paradigm shift about the methods of governance and power. And that’s what I really want focus on because it has to do with, again, the good faith reasonable interpretation of laws and the respect of norms, and that’s what I think is at risk.

There are basically two pathways for executive powers in the Constitution. One is Article One, which is about Congress, and the other is Article Two, which is about the Presidency. Under Article One, Congress may delegate powers to the president, and those delegations are of course reviewable by Congress. It is their duty and responsibility to review, the powers are revocable by Congress and they can be checked by courts. There’s a slew of pertinent statutes and some have already been referred to, I’ll try to mention the most important ones in a moment.

The other pathway is Article Two, which is about the presidency, and that is about the inherent powers of the president. Those can’t really be checked so well by Congress, they could be checked by courts, but if they’re inherent powers of the presidency, they are what they are and they’re a bit of a black box.

The president has quite enormous executive powers, including emergency powers, that are actually not that well understood. If these powers are not interpreted and implemented in good faith, we could be confronting a major constitutional crisis, and there have already been warning signs that that this might lie ahead.

So on the Article One pathway, the powers were really accumulated from the Second World War. It started under FDR, and then in the Cold War, there was a fairly massive expansion of presidential powers. And in the wake of the Vietnam War and the disclosures about CIA activities and the abuses of the Nixon administration, there is an effort to bring order to all these powers, and something called the National Emergencies Act (NEA) was passed in 1976 as a rubric for presidential emergency powers that are delegated by Congress. It was an attempt to rein in the powers,

Unfortunately, the way it’s played out, the NEA has really given a lot of license to presidents, and Congress rarely exercises its authority or responsibility to review or check the president. The president has full discretion to declare emergencies, and the result is that we have over 40 national emergencies that are still underway that have been declared over the past 40 or 50 years.

Those declarations of emergency are technically presidential findings that the emergency exists, and then executive orders are issued pursuant to that. Those are just standing grants of authority. They are delegated, but the president basically enjoys them unless Congress inserts itself as Congress has almost never done. In fact, only one emergency that I know of has actually been terminated and that was the COVID emergency.

Under the National Emergencies Act there are about 120 statutes of emergency powers in which the moment the president declares an emergency, that entire bookshelf or annex of powers is available to the president, and these include some really significant ones. I think the Insurrection Act was already mentioned, the Communications Act, the Transportation Act, those all have emergency powers in them, and the Alien Enemies Act.

And then a very important one that hasn’t been mentioned, which is the International Emergency Powers Act, which was passed in 1977 and gives the president sweeping powers to seize assets and freeze financial transactions and the like, including those of Americans. The moment an emergency is declared, and the president has full discretion to do that, this whole array of powers is available and the question is, who checks the powers? We don’t have great answers on that.

Let me just jump over to Article Two, which creates the presidency. Article Two is really the black box in terms of potential emergency powers. The central issue is the idea of a set of inherent powers in the presidency that are not spelled out, in other words raw executive power that necessarily comes with the office. There is a constitutional basis for arguing that there are such powers because of the way the vesting clauses are written in Articles One and Two. The distinction in the vesting clauses in legislative powers and executive powers is as follows:

“All legislative Powers herein granted shall be vested in a Congress of the United States” vs “The executive Power shall be vested in the President of the United States of America.”

So it is a matter of interpretation. The limiting language “granted herein” makes it plausible and colorable to argue that there are inherent executive powers in the presidency, unlike the legislature. The Article Two reference to commander-in-chief further supports that notion, and of course, commander-in-chief has been invoked as a phrase over and over again to justify expansive presidential actions, and on a bi-partisan basis.

And this is another thing I want to emphasize, that over the decades, no matter how much civil liberties-oriented people protest the expansion and potential abuse of presidential powers, whichever party is in office has wanted to protect presidential powers. There has not been a great willingness to rein in presidential powers, even when Democrats have been president. Here I must alert people that there was a big attempt, and Jamie Raskin played a lead role in this, to put a cap on the National Emergencies Act to amend it so that a declared emergency would automatically end after 30 days or 60 days and would have to be affirmatively renewed.

The Biden administration did not support the authors of that amendment, and it was partly because the Biden administration used emergency powers as a legal authority for debt forgiveness for student loans. So I want to emphasize this is a really complicated area, not only in terms of legal interpretation, but also politically it’s been quite fraught.

Now back to Article Two on the inherent powers. These are really tied to national security, they were developed at the height of the Cold War when there was fear there could be nuclear war, a weapons of mass destruction crisis, a shutdown of electronic communications and the like. And work was done to create the legal authority for the president basically to declare martial law and to suspend the writ of habeas corpus. They’re on a bipartisan basis over crossing administrations. The Justice Department has developed a legal theory about these powers that is potentially very, very expansive.

So it takes me back to the beginning. The concern about good faith interpretation, reasonableness, comity, that has been the hallmark of our successful Republic for decades and generations, and that, unfortunately, is what is at risk today in the context of enormous presidential powers that are very hard to check.

Sidney Blumenthal: I’d like to turn now to my friend and colleague, Sean Wilentz. Sean is co-chair with me of the Court of History, he is the George Henry Davis 1886 Professor of American History at Princeton University. His books have won among other awards, the Bancroft Prize for The Rise of American Democracy. He is doing a book now on the fall of American slavery, and he has also written a book called Bob Dylan in America. Sean also contributes his work across the length and breadth of American journalism, from The New York Times to Rolling Stone to The New York Review of Books..

Sean Wilentz: I want to speak very, very briefly as an historian because I think that history is not only at stake here, but the lack of understanding of where we are historically is actually a big problem that we have to face, which is to say that people think that we’re in a normal political situation, that there was an election, Trump did win fair and square, the Republicans now control all three branches of the federal government, that’s the way democracy is supposed to work.

There’s never been an experience in American history like we are going through now. Nothing. Because what we’re going through is a rather systematic attempt to use the institutions of democracy in order to destroy democracy. That’s something that in modern European history you can find all over the place. But this has never happened before in American history.

Sid cited early on the Alien Extradition Act, yes, but, you know, it came and went, and indeed, the aftermath of Dred Scott was that Abraham Lincoln was elected president. We are in a very different situation historically than anything previous. The crisis that people ask me about always is, are we on the brink of another Civil War? Is this the situation that we have?

It’s much different than that. The Civil War was not only about slavery, it was also about secession. That’s what the Confederates were trying to do. They were seceding from the rest of the country. By the time we got to 1860, people had been talking about secession for a very long time. People could envisage what secession is like going all the way back practically to the founding, The New Englanders wanted to secede in 1784 over Thomas Jefferson. In the 1830s, Andrew Jackson had to stand up against the secessionist attempts or at least nullification attempts by the South Carolinians. So people were used to this idea. They may not have liked it, but they were used to it.

We’re not seeing secession now. What we’re seeing is the takeover by these regressive forces of the US government and the attempt basically to destroy democracy. They have the power to do so in ways that have just been spelled out quite chillingly.

Imagine the difference here, imagine if on March 4th 1861, Jefferson Davis was inaugurated president of the United States. That’s what we’ve got, that’s what we were facing now. We didn’t face it then. The one thing that is kind of like what it was like then is the Supreme Court. They had Roger Tony; we have John Roberts. To the extent that the court has been the engine of the preliminaries to this basic coup d’etat, there are historical lessons that are similar to what happened. But in every other respect, it’s not about secession. It’s about takeover. It’s about something that we’ve never faced before until now.

But the first step is to undo the idea of normality. We are not in a normal situation, we have to point that out and break through the media in particular, break through the idea that all of the trappings are there, it all looks like normality. It is not. and as an historian, I think that’s the one thing that stands out much more clearly than anything else.

And this is where the Court of History comes in actually, because the court is our beat if you will. It’s precisely there that is so much the engine of what’s going on. The court is the center of action in a lot of this stuff, and we are there to try to point that out and do what we can to stand up against it. But until, I think, the American people, and this includes the vast majority of very knowledgeable people, understand that this is an abnormal situation, that we are not where we have been at any other point in our history, that this is not just because it looks legitimate, doesn’t mean that it is legitimate.

We have to actually talk about the Constitution in different ways, because the Constitution is going to be talked about in formalistic ways, and people are going to retreat into the rule of law, which is important. We have to revivify an understanding of the Constitution which has been lost, which is that the Constitution is there to protect certain basic rights, certain basic values that the founding was based on. We can’t retreat simply into formalism about that, we actually have to assert a different idea of what the Constitution is about. much as Lincoln did in the 1850s, and much actually as Jefferson sort of did in the in the 1790s. But we have to do it now. That is our charge, I think, as far as the Constitution is concerned.

But the first step is to undo the idea of normality. We are not in a normal situation, we have to point that out and break through the media in particular, break through the idea that all of the trappings are there, it all looks like normality. It is not. and as an historian, I think that’s the one thing that stands out much more clearly than anything else.

Sidney Blumenthal: We have a number of questions and I’d like to pose them to particular panelists. One questioner poses this question: South Korea has had a democracy for less than three decades, yet when its president sought to declare martial law, he was immediately impeached by a large majority, and is now under arrest. Yet after massive, years long publicity, about Donald Trump’s lawless behavior and attempted insurrection, an electoral majority of Americans blithely returned him to office under circumstances where half of Americans don’t care about the rule of law, or for that matter human decency. According to the questioner, isn’t this situation much graver than a constitutional emergency? Isn’t it more like a moral collapse of the American people, something that far transcends problems with courts and Congress? And how do we get the punditocracy even to face this crisis, let alone deal with it? I’m going to pose this question of moral collapse to our eminent political scientist, Norman Ornstein.

Norman Ornstein: To start with. I think there’s at least a fairly clear answer to a part of that. South Koreans faced two decades of a brutal military dictatorship before that democracy emerged, and they remember it. I think a whole lot of Americans have no clue what’s ahead for them. And in many instances, even if they have a slight idea, they don’t think it’ll affect them. Anecdotally, we saw a number of Hispanic American voters say, well, yeah, he may deport some of these people, but not my mother. She’s illegal, but she’s never done anything. So it’s going to affect them, but not me.

Now, that’s part of a moral collapse, you could argue, and I think we see plenty of signs of that, that people are for themselves or those like them, but not for others, but it’s also an ignorance of what could lie ahead and how it will affect people.

We have to be prepared, which means we’re going to need our own communications networks, because we know that when bad things happen that we’re going tp have all of that right-wing wind machine, which is formidable, blaming George Soros and the rest of us for what went on. We have to make it clear to people that whether they willfully voted for this horror or did it out of ignorance or were just hoping that things would be better, that they have done this and they now have to undo it. And it’s going to take, I fear, a bad experience for people before at some future point we get the same kind of reaction we got from the South Korean people and the political system and their judiciary.

Mark Medish: I agree with the way Norm characterized it. I think this is a crisis of democracy, the soul of our nation, and the way Sean put it about the Constitution was right. We need to revivify a sense of the values and the principles that were behind that great charter, as it’s been interpreted over generations now. My biggest fear is that a great number of our fellow citizens are falling prey to what might be called the authoritarian temptation. They’re sort of authoritarian curious. Is there some other governance model that can get things done more decisively and quickly, than the difficult system of compromise that that we have cherished, which can be messy and frustrating.

I think social media is part of it. The medium is the message, and we are in early days of trying to learn how democracy can function in a digital ocean, where the nature of communication has changed, the nature of information sharing has changed, and the mainstream media have all but collapsed. So you don’t have referee journalism anymore. People are all off in their silos. I think this is really important, the kind of technological environment in which we must revivify democracy is part of the challenge.

Sean Wilentz: Can I can I jump in on one point? I’m a historian and we say that whenever anybody tries to quote Alexis de Tocqueville, you’re going to get your pocket picked, but in this case, I’m going to actually refer to de Tocqueville because in Democracy in America—and it’s been widely misunderstood—the thing that he feared about most of all for the fate of American democracy was what he called individualism. What did he mean by individualism? He didn’t mean people going only for themselves, as the questioner put it. It’s the withdrawal from any kind of civic life, a withdrawal from the voluntary associations that he thought were so important, a withdrawal from politics into yourself, for whatever reason.

On this point, I think de Tocqueville was a genius, because that is exactly how strong men operate. Strong men operate in a way as to make you want to withdraw. It’s not that you’re necessarily going to be there at their rallies. No, you’re so put off from politics, you’re so put off by the chaos, so put off by everything that you withdraw. And that I think is a real danger, that it’s not simply a matter of people thinking that it’s never going to happen to them, but that it’s because they’re in a sense already withdrawn. They don’t think it’s going to happen to them. They don’t have a stake in what’s going on. And I think that is something that we have to combat as well, quite apart from our understanding of the law, and the history, etc..

This is something that that a visitor somehow detected in 1835 and it’s very much with us now.

Sidney Blumenthal: Congressman Raskin, we are discussing the question of South Korea, which has impeached and arrested its president who tried to overthrow its democracy, compared with the American people who have now voted for somebody who is subversive of the American Constitutional order, and whether or not this constitutes a moral collapse of the American people, and where we go from there.

Jamie Raskin: It certainly exposes the rickety architecture of our Constitutional system, we had robust bipartisan majorities voting to impeach and convict Donald Trump, but of course, it wasn’t enough because he beat the Constitutional spread of two thirds. So we had seven Republicans join fifty Democrats in the Senate to vote to convict him for inciting an insurrection and, alas, Mitch McConnell, despite all of his sympathetic facial gestures and body language and everything he was saying to me during the breaks, he ended up just completely abandoning us and voting to acquit Trump. Although he did say that Trump was personally and ethically and morally responsible for everything that happened, he did not feel that the US Senate had jurisdiction over a former president, to try a former president.

Of course, this cut against more than two centuries of history, and it was also an issue that we had resolved in the very first day of the trial, which makes, in some sense, what happened in that trial the greatest case of jury nullification in American history. They went back to an issue of law that was settled at the beginning of the trial and used it to nullify the facts, which at least 17 or 18 of the Republicans who voted to acquit conceded showed that Trump had been the engine of the whole insurrection. So I do think we have a problem that our Constitution is not quite keeping up and maybe we will get some positive Constitutional changes out of this.

I believe that we’re in a different environment with the Internet, and there I think that in some sense Trump was impeached and convicted in the court of public opinion immediately after the insurrection for several weeks, when even Trump himself was trying to denounce the insurrection and distance himself from it. But then they began that process of historical revisionism and extending the big lie about the election to the big lie about January 6.

But I don’t want to concede it’s over yet, so I wouldn’t say that we’ve seen a full blown moral collapse. There’s been a lot of erosion. We see a lot of constitutional and civic illiteracy in the country, and we suffer not from a surplus of democracy, but all the impediments and barriers to democracy, like the gerrymandering of our elections, like the voter suppression tactics, like the lying, disinformation and propaganda online. And we’ve not caught up on those things. So the real question is whether the Democratic forces that were stirring, that were clearly evident during the campaign, can come back again, you know, where if you take the big historical picture, we’re still in the infancy of humanity, much less the infancy of American democratic political culture.

We already saw one Civil War and we don’t want to see another one, but we also don’t want to see a self-coup and the destruction of our democratic institutions by a force that’s been able to use anti-democratic means to get to power. So I guess I would say the jury’s still out. It’s up to us.

Sidney Blumenthal: I’d like to add a comment. I was speaking about this very issue in a way with former President Clinton and he wondered what historical period is this similar to. Is it similar to the 1850s where the Whig party completely collapsed and you had the rise of a nativist anti-immigrant know nothing party or, he wondered, is it like reconstruction where all the efforts to build a racially equal political system were attacked and destroyed.

In fact, the last election, which took place in 2024 and is the subject of a lot of punditry, was a very close-run thing and one of the closest elections in recent times, Trump won by one point five percent, and he did not win any more absolute votes than he had won in his previous election, but the Democrats lost about 5 million or more and the issue, of course, predominantly was inflation as people understood it, which is the cost of living. And regardless of all that, Trump has taken this as a mandate to seize the instruments of government to impose a a drastic, extremist agenda and more than a policy agenda, but to torque our constitutional system towards authoritarian rule and the concentration of power, both political and economic.

Lisa Graves: Which part, which era in history either in America or someplace else, are we at? It’s a very fascinating question. I have a lot of ideas, but mostly I think about, as Mark or Norm mentioned, this ocean of information or this digital ocean and this stream of disinformation or propaganda that really propped up what happened in this election, in terms of people’s misunderstanding of inflation and how the economy works. Also the incredible distortion caused by the US Supreme Court in basically waving Trump through. I just think it’s hard for me to describe this as analogous to prior periods because we have such splintering of information, such a massive billion, billion dollar at the least, propaganda machine coming together from all these different forces to do as Jamie said, to basically rewrite history. We see this revision of history even before our eyes, in terms of January 6th and what happened in 2020 and even what’s happened in the criminal cases.

We’re contending in my view with an unprecedented concentration of power in the hands of a few billionaires who are subservient to Trump for their own reasons, their own agendas, and they control instruments of information dissemination that are unprecedented in human history. So we have a tremendous challenge ahead of us to fight for the truth, for the actual facts and to restore those values that Sean mentioned, those core values of our Constitution.

Despite the winds of these enormous fortunes that are so regressive and so repressive, I remain extremely hopeful because more than 70 million Americans did not go along with this, did not vote for this, and probably another 50 to 70 million Americans didn’t vote, but could vote, could be activated to go, Whoa, this is not what I agreed to. This is not what our country needs.

As you point out Sid, the margin was not a mandate. It was quite thin. And in fact, there are many people who are about to see unprecedented things unfold that are not in their interests that harm America, harm our opportunities, harm our freedoms. And I think we have real opportunities ahead of us to galvanize a broader coalition to reject this extremism and this post-constitutionalism or this counter-constitutionalism.

I think they’re going to give us plenty of opportunities to push back because they’re going to overreach so severely. And we have more assets than we realize, because the propaganda costs so much to put out there. The truth doesn’t cost as much to generate, because it’s before our eyes. We have a lot we can do and we cannot give up in this process, we cannot give in. As Sean said, this notion of people disengaging being a fundamental threat, we do need to pace ourselves and pass those batons because we can’t be constantly at that hundred percent anxiety level all the time every single day.

Before I go, can I just add something to that? I think we have to recognize that in some ways it’s an amalgam of the two. We have the Fugitive Slave Act now, that is, basically, if women leave one state to get an abortion, they can be criminally punished. But what we also have is the victory of states rights, but with a twist. We have all these southern states, just as in reconstruction, imposing horrible consequences on minorities and others within their states, but what we also have is those states—and a very narrow margin of Republicans in the federal government—moving to impose restrictions from those states on other states. We see it now with the attempt to put restrictions on California for disaster relief. We are going to see, I think, a whole other set of measures that they’re going to try and pursue, with Trump through executive action, with the courts agreeing, probably this Supreme Court agreeing, and we’re gojng I think, to face another set of challenges that go beyond just the ones that we face now, with the potential for an autocracy.

Sidney Blumenthal: Let’s continue with the questions, we have a questioner who raises the question of the Federalist Society, and Lisa spoke about the right-wing machine and this questioner says progressives have all but become resigned to the efficacy and dominance of the Federal Society. We need a progressive equivalent and how are we going to get one? Is there anything that can be sufficient and effective? And I want to start with Jamie, he is the ranking member of the House Judiciary Committee, although he is not going to deal with nominations, which the Senate will be considering. However, he’s going to deal with the whole range of judicial questions and of Trump appointees, and behind them, the looming shadow of the Federalist Society, and their whole apparatus. Jamie, can you address how you plan to approach this.

Jamie Raskin: The power of the Federalist Society was really shown with Bush v. Gore and it’s the idea that the judges and justices will be radically, inately integrated with the partisan structure of the Republican party. And then law students will be recruited, who will be completely faithful to whatever the dogma is. I don’t think that the liberals and progressives operate in the same conspiratorial fashion that we saw in Bush v. Gore, or Shaw versus Reno, or the presidential immunity case, or what have you, where there’s no way to predict what’s going happen from any reasonable doctrinal interpretation. It was just the fix was being put in, and so, in that sense, the historical analog to it really is what happened in the Dred Scott decision, that Lincoln was complaining about.

I learned a long time ago that the progressives tend to be right from the standpoint of morality and political philosophy on almost everything we’re talking about. But the right wing organizes just with the idea of victory, we’re going to count the votes before we get into any kind of debate, so the debate is a pure formality, we’ll get through that, and we’re going to count the votes and that’s how they do it in the Supreme Court and that’s how they do it in the Senate and that’s how they do it in the House.

So against all of the anti-democratic mechanisms that they thrive on, like the gerrymandering and the voter suppression and the Federalist Society and right-wing judicial activism, and the plutocracy, Citizens United, the unleashing of corporate dark money, what we’ve got is the natural strength of numbers and if we can successfully communicate with people in this new communications environment, we can mobilize people against the broligarchs and the plutocrats and the theocrats and the Federalist Society, the whole thing. Sid started off by talking about the Alien Sedition Acts and I always loved that letter that Jefferson wrote to his friend John Taylor, who was despairing of the political predicament they were in, and Jefferson said, “a little patience and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles.”

In the meantime, we’re suffering all of these horrors and indignities, but if sometimes the game runs against us at home as it will, we must have patience because this is a game where principles are at stake. So, I appreciate the fact that everybody is hanging tough, because that is what it’s going to take and we’re going to have to be as nimble and flexible as possible because we’ve had this huge outside force come and clamp down on every lever of government.

Sidney Blumenthal: Lincoln also spoke like Jefferson about the despair that afflicted people, and he referred to the debauchery of public opinion. Lincoln said public opinion is everything. He was also aware that there were demagogues who would manipulate it and exploit it. Lisa, I wonder if you had some comments about the role of the Federalist Society coming up under the Trump administration and how it’s going to operate?

Lisa Graves: It would be hard for us to add anything beyond what Jamie said that was just so evocative. It is the case that – despite this PR about Is Leo aligned with Trump, is Trump aligned with Leo, all this sort of noise – the Federalist Society is the pipeline for power for so many of these people to become judges or to get elevated. That is that network, they’ve already been precleared so they don’t have to be asked how they are going to rule. They have the stamp of approval from that sort of loyalist standpoint.

The Federalist Society has done these victory tours with their galas, with these Supreme Court justices and other appellate justices, so we expect that capture effort to continue. And we expect the Republicans in the Senate to continue to basically break norms and rules in terms of confirming people who are manifestly unfit for the roles that they’ve been nominated to, nominees who have serious issues in their background investigation.

So part of the part of the challenge is making the case to the American people about how unfit or extreme some of these individuals are, and as they make decisions, to make sure people understand this is the consequence of putting people into positions of power who don’t have integrity, who don’t have the devotion of the Constitution that’s necessary to have a working democracy.

I also think that I think that the movement about the law has to get out of the law schools and into civic education, the notion that we all have a stake in the law, and the Supreme Court is made up of super specialized diviners who are the only ones who have a legitimate say about what the Constitution means.

We have a real contest on our hands in the years ahead about the people’s house, about how we determine what our rights are, how we can expand our rights. How we can restore and expand voting rights, how we can repel and overcome these terrible, ridiculous decisions on political gerrymandering and racial gerrymandering, these voter suppression efforts and more.

This is the work of our House of representatives as it can grow stronger and more progressive in order to take these challenges on and restore our rights. I just wanted to add there was in my state of Wisconsin a justice on the Supreme Court about 40 or 50 years ago who asked this question: Who shall fill public stations—educated and patriotic freemen and women, or the feudal serfs of corporate capital?

It’s amazing that here we are again at this moment in which there’s an effort to make us mere serfs in our society, in our democracy. That is part of our challenge, too, to stand up to those oligarchs, those theocrats, and say, no, this country belongs to us, this land is our land in the words of the famous song, and we’re not going concede it to these oligarchs, these broligarchs and these theocrats.

Sean Wilentz: Can I add one thing to what Lisa just said, which is crucial in all of this, which is to get the point across that the Constitution is not only what the Supreme Court says it is. We can quote all sorts of people, including Andrew Jackson, who’s in bad odor these days, but nevertheless, he’s very good about all of this, which is to say that the Congress has a great deal to do with determining what the Constitution says. Not just the Congress, the Presidency, of course, does as well, but we all do too. There is such a thing as the People’s Constitution, and we have to assert the People’s Constitution, because what we say of the Constitution ultimately in a system of popular sovereignty is what the Constitution is, and we have to make that clear to people. They get too passive, they think, oh, they are the authorities, they know more than we do, and they hide behind not only the Federalist Society, but this entire bulwark of jargon and nonsense that they know everything.

Well, they don’t know everything. And that’s one of the things actually that the Court of History has been trying to do—to break away, break down that sense of the impossibility of exposing what’s going on. We have a say in all of this. Congress has a say in all of this. The Constitution should not be left to the Supreme Court or for that matter, the rest of the federal judiciary, but especially this radical Supreme Court.

Mark Medish: An interesting aspect of this Federalist Society jurisprudential movement, which has been a kind of insurgency over decades now, 40, 50 years, it’s not monolithic. There are there are actually multiple conservatisms that are coexisting next to each other, they finally figured out how collectively to assert power. You have a libertarian strand that really doesn’t agree with the culture war strand, that doesn’t necessarily agree with the states’ rights strand. You’ve got a presidential executive power strand, a more hardline, old school conservatism. And the conservative justices actually are not as monolithic.

I see some hope there, actually, that that maybe on some really important cases, I mean, we’ve already seen failures and the overturning of Roe Wade and Chevron, and the immunity thing, but they are not monolithic, there is a real jurisprudential argument going on within the movement, which is normal. I mean, this is the case on the progressive side as well.

Sidney Blumenthal: Let’s go to the last question, and I’d like to broaden it as well. How do you explain the liberals voting with the majority in the Colorado Anderson case, involving the 14th Amendment, section three, I know that Jamie and Sean have a lot to say about this, and Lisa too, and Mark. I think these will be our closing remarks, and they go to two broader questions.

One is the granting of the conservative assertion of originalism, which is a straitjacket of bogus history in order to achieve preconceived results. The other one is the liberals who go along with the conventional wisdom of the moment. People wanting to go along and get along, and not understanding the deeper constitutional questions involved. In the case of the Anderson decision, the Colorado court was overturned by the Supreme Court which said that the state could not refuse Trump a place in the ballot because he was an insurrectionist.

Well, who could do that? And how would that happen?

Sean Wilentz: I wasn’t taking this because I know at least one of the liberal justices extremely well, my student Elena Kagan, so I want to measure my words a little bit. I think that the liberals got snookered on the Anderson case. I think that they decided from the beginning that they were not going to allow Trump to be taken off the ballot, but then, in reverse, you know, like a football reverse play, the conservatives went in and basically gutted the 14th Amendment, or at least Section 3 of the 14th Amendment, I mean, they basically have done their best to get rid of the 14th Amendment. and the liberals did not buy that. They were not on board for that. They just wanted to get through this and let it happen. A dumb idea, in my view, as I was writing a lot saying, you know, disqualify Trump, and I was hoping they would listen.

Although, I gather there was some indication that at least Justice Sotomayor was actually not going to go along with it, but then in the end was convinced, so that there’s a debate there, as Mark was saying there’s division everywhere. I think that they were very badly snookered, and I think that nobody could quite believe the conduct of the extremists. I think it’s taken time for them to believe just how extreme their colleagues are.. maybe they’ve learned that.

Jamie Raskin: You don’t need to go much further than that case to demonstrate that the liberals don’t have anything remotely like a Federalist Society. The American Constitution society certainly did not operate to keep them all in line and give them, you know, some kind of dogma to follow. On the contrary, it was Justice Kagan who was really pushing that whole checkerboard argument— like, oh my God, we could have a different looking ballot in Colorado than we have in Minnesota— which is, of course, the system that we’ve got today, so I was just baffled by that. But I think, I agree with Sean very strongly that it was on the side of the liberals. It was very results-oriented jurisprudence. I felt they could not conceive of rendering a decision that would allow Colorado to keep Trump off of the ballot. I mean, I think there they really would have been afraid of Civil War-type implications of that. So anything to get there, and that’s why they concocted an argument, which is really just at odds with decades of ballot access jurisprudence. The decision that they came down with really did nullify section three of the 14th Amendment, because they said, okay, the states don’t have power over this. So forget the supremacy clause, the states do not have the power to interpret the meaning of the US Constitution and implement it.

You then think okay, what they’re going do is they’re going to decide for themselves that Marbury versus Madison says it’s emphatically the province and the duty of the Supreme Court to say what the law is. So now there’s controversy and an actual case staring at them in the face, and they say, well, it’s not up to us, it’s going to be up to Congress, knowing that we’ve got my theocratic friend Mike Johnson in charge of the House of Representatives and that he wouldn’t do anything on it. But even then they held their backstop arrangement, which now exists for everything, which is, well, in the final analysis, it’ll be up to us. We’ll see if you come up with a law, an actual procedure for defining an insurrectionist, it’ll come back to us to determine whether it’s congruent and proportional to the actual language of the 14th Amendment.

They have carved out a huge hole in the Constitution. There are lots of anti-insurrection provisions in the Constitution. This is not some incidental peripheral thing, it was very much on the mind of the founders because of Shays’ rebellion. We’ve got the treason clause that’s in there, treason is the only place where a crime is defined, it’s defined as levying arms against the United States or adhering to the enemies thereof. There’s the Republican guarantee clause, that Congress has got to guarantee to the people of the states a Republican form of government, and to assist them in opposing domestic violence, you can go on and on. This is a very big deal. and yet they’ve just gutted the insurrection clauses that are in the Constitution in order to cave in to Donald Trump.

I do think, just to agree again with my panelists here, we’ve got to have the people take up the cause of the Constitution. Forget the Supreme Court for a while. They really are like a liquor board in Cook County. They’re bought and paid for. They all have their own billionaire sugar daddies who fly them around. They don’t want ethics to apply to them. And so the Constitution’s got to be ours. I just want to bring this up to date because Trump’s pardons of the January 6th insurrectionists are if nothing else is a confession of guilt on his part, and a revelation of his state of mind in the insurrection, which proves he’s an insurrectionist, and therefore was the basis of that Anderson decision by the Colorado court.

Lisa Graves: There’s a saying in law school that bad facts make bad law, and another that hard cases make bad law. And I do think that the Democratic appointees to the court were trying to avoid just the thing that happens all the time, as Represent Raskin has suggested. This is how ballots work. They’re not the same in every state. And if someone has a problem with one state being decisive in the outcome of a presidential election, I’ve got one word for them, Florida. Bush v Gore. If that’s the standard, one state can’t have its own outcome, well, we already saw the outcome go the other way.

But to me, the question in that case is one of trying to urge the members of that court to stand up for the standards of that court, which is to say there’s no way that Clarence Thomas and Samuel Alito should have sat on that case. That would have reduced the count to three members of the court saying that Congress has to create some new procedure to bar an insurrectionist and four members who did not agree with that. In fact, they would have been the majority, saying that is not the standard. And if you read the 14th Amendment, it literally says that the only way to remove the ban on an insurrectionist is for Congress to remove it, not the opposite, that it only exists if Congress decides to create a process for.

So I think that case really underscores how in this interpretivism, this so-called originalism, this notion of textualism that these right wing justices have put forward is just a lie. It’s just a method as Sidney and Sean and others have spoken about to get the results they want. When the language of the Constitution or the language of a statute is against them, they ignore it. It’s another case that underscores the illegitimacy of this Roberts court in the way it has ruled.

That case in particular is just profoundly illegitimate in part because it included two justices who have plain conflicts of interest under federal law, longstanding federal law requiring their recusal, and they failed to do so, and their fellow justices did not speak to that in their opinions, and I wish they would. I think that they have a moral obligation going forward to speak out if justices are sitting on cases that they should not be on because of their conflicts of interest.

Mark Medish: I wouldn’t change a word my colleagues have said so eloquently. I would just say I think the liberals chickened out prudential grounds. I think they were worried about the politics and the political optics of the whole situation. One of the real challenges for our country is that multiple avenues were attempted to hold Trump to account—from impeachment to prosecutions—then this fourteen three effort, and it all failed. That’s our problem, that there’s been no accountability. In fact, even before the Supreme Court ruled on immunity, our system has been unable to hold the conspirator-in-chief accountable. That’s our problem.

 

The Court of History is a nonprofit group that was founded a year ago by the journalist and author Sidney Blumenthal and the Princeton historian Sean Wilentz. This article has been edited for clarity and is published with permission of the Court of History.