Martin Kettle writes:

The US is a nation increasingly governed by a court. But this governing court is not a court of law. Trump’s grip on the top judges in the US supreme court, many of whom he appointed during his first term, is already tight and likely to now grow tighter. Instead, Trump governs by placing himself at the centre of a presidential court almost on the monarchical model.

Not all of this is down to Trump alone. During the past century, presidents like Franklin Roosevelt extended the presidency’s reach in economic and international affairs. After the Vietnam war, the historian Arthur Schlesinger called this the rise of the “imperial presidency”. But it has not stopped. In his David Frost interview, Richard Nixon argued that if a president approves something, it is not illegal. The supreme court gave this once unthinkable view its majority blessing last year, ruling that a president possesses absolute immunity for any official acts. One liberal justice, Sonia Sotomayor, said this made the president “a king above the law”.

And, with a king, there inevitably comes a court. With a king above the law, there comes a court for whom the law must ultimately be a secondary concern too. A royal court has no authority or self-interest to champion a different constitutional order that the king himself has rejected.

Unsurprisingly, modern democracies have grown unfamiliar with the dynamics of court rule. Yet in British history, royal courts were where power lay, decisions were made, rivalries fought out and where, not least in Tudor times, lives were sacrificed. Even when parliaments had become more entrenched in the 18th century, a court or king’s party battled for supremacy with the Commons or Lords.

This is exactly why George Washington himself might have recognised the court political system now flourishing around Trump as something approximating to the form of kingly governance against which he was driven to revolt nearly 250 years ago. Writing in 1967 on the origins of the American revolution, the US historian Bernard Bailyn argued that the rebellion was driven by the fear that the constitutional balance had been perverted by those around George III, with the encouragement of the king himself. Much of what Bailyn argued was on view in American politics this week, not least in the deeply feudal use of quasi-royal powers of pardon by both Trump and Joe Biden. [Continue reading…]