Adam Serwer writes:

The Trumpist justices on the Supreme Court had a very serious problem: They needed to keep their guy out of prison for trying to overthrow the government. The right-wing justices had to do this while still attempting to maintain at least a pretense of having ruled on the basis of the law and the Constitution rather than mere partisan instincts.

So they settled on what they thought was a very clever solution: They would grant the presidency the near-unlimited immunity Donald Trump was asking for, while writing the decision so as to keep the power to decide which presidential acts would be “official” and immune to criminal prosecution, and which would be “unofficial” and therefore not. The president is immune, but only when the justices say he is. The president might seem like a king, but the justices can withhold the crown.

The Supreme Court’s ruling on presidential immunity combines with its regulatory decisions this term to remake the executive branch into the ideal right-wing combination of impotence and power: too weak to regulate, restrain, or punish private industry for infractions, but strong enough for the president to order his political opponents murdered or imprisoned. To ordinary people, the president is a king; to titans of industry, he is a pawn. Given the work the Trump justices have done here, the billionaire class’s affection for Trump, often presented as counterintuitive, is not difficult to understand.

Yet when it comes to the justices’ decision on immunity, they were too clever by half. They seem to believe that when a president goes too far for their taste, they can declare that he’s not immune and constrain him. But there is danger in a ruling that invites presidents to test the limits of their power. By the time a rogue president goes too far, he is unlikely to care what the Supreme Court says. A president unbound by the law is shackled only by the dictates of his own conscience, and a president without a conscience faces no restraint at all. And because the Court ruled as it did, when it did, and on behalf of a man lawless enough to try to overturn an election, Americans may pay for the justices’ hubris sooner rather than later. [Continue reading…]