Is there a legal way to end Donald Trump’s political career, once and for all, without defeating him at the polls? The odds are long, if not almost insurmountable, but a path does exist.

An impressive group of constitutional scholars has concluded that Trump can be disqualified from taking back the White House under the 14th Amendment as a result of his role in sparking the Jan. 6, 2021, insurrection at the U.S. Capitol. Initially confined to academic circles and small activist groups on the liberal and progressive left, the idea is going mainstream as the 2024 presidential election approaches with Trump tied in many polls with President Biden.

The theory is based on the amendment’s section 3, which provides:

No person shall…hold any office…who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

POLL: Should Trump be allowed to hold office again?

Law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas offer a comprehensive exposition of the theory in a 126-page article for the University of Pennsylvania Law Review that was released in draft form in early August. Harvard Law professor Lawrence Tribe and retired federal appellate judge J. Michael Luttig published a leaner account of the argument last month in The Atlantic.

Although aspects of the disqualification theory are esoteric and understanding the nuances requires some background in post-Civil War history (the 14th Amendment was ratified in 1868), the argument boils down to Section 3’s clear and unambiguous language prohibiting insurrectionists from holding office. The section, according to the theory, is “self-executing,” meaning that it applies immediately and automatically without the need for additional legislation by Congress or criminal convictions.

All four scholars conclude that Section 3 disqualifies Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election. Their unanimity is noteworthy because Tribe is the only liberal among them. Luttig, who was nominated to the bench by George H.W. Bush, was a favorite of Republicans in the pre-Trump era. Baude and Paulsen are members of the Federalist Society and proponents of the conservative legal philosophy of “originalism” — the view that holds the terms and provisions of the Constitution and its amendments must be understood according to their original “public meaning.”

But while the authors’ credentials are impeccable and their research thorough, the disqualification theory is not without problems.

One major hurdle is that it is difficult to define the terms “insurrection” and “rebellion” with precision. To protect civil liberties, free speech and democratic dissent, the terms must be construed narrowly. Neither term, however, is defined in the Constitution, although Article I, Section 8, clause 15, of the Constitution empowers the president to call up the militia to suppress insurrections.

The Insurrection Act of 1792, still on the books, provides some clarification by authorizing the president to combat rebellions that “make it impracticable to enforce the laws of the United States…by the ordinary course of judicial proceedings.” There is also a section of the federal criminal code, tracking both Section 3 of the 14th Amendment and the Insurrection Act, that makes it a felony to incite or engage in insurrection or rebellion.

Recognizing the perils of overly broad characterizations, Baude and Paulsen craft their own limiting constructions. “Insurrection,” they write, “is best understood as concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect,” beyond “mere ordinary lawbreaking.” They define “rebellion” as “an effort to overturn or displace lawful government activity by unlawful means…beyond mere resistance to government authority.”

Tribe and Luttig are also deeply concerned about civil liberties, but argue that the solution “lies in the wisdom of judicial decisions as to what constitutes ‘insurrection,’ ‘rebellion,’ or ‘aid or comfort to the enemies’ of the Constitution under Section 3.”

Relying on the courts to clarify ambiguous terms is nothing new, but litigation is hardly “self-executing.” This highlights another weakness of the disqualification theory: Enforcement of the Constitution requires human agency. If the long and never-ending struggle for civil rights in this country proves anything, it is that nothing about our national charter is self-executing.

This is not to suggest that Baude and Paulsen or Tribe and Luttig are naïve. To the contrary, they recognize that to effectuate Section 3, demands will have to be made on state election officials to exclude Trump from the ballot, and lawsuits will have to be filed.

The process, in fact, is already underway. The nonprofit advocacy groups Free Speech for the People and Mi Familia Vota Education Fund have issued letters to the secretaries of state in New Hampshire, Florida, New Mexico, Ohio and Wisconsin, urging them to bar Trump from running in 2024. Other groups are sure to take similar action as the election draws near.

Formal legal challenges have also been lodged, including a massive complaint filed on behalf of voters in Colorado by the Washington, D.C.-based ethics watchdog group Citizens for Responsibility and Ethics (CREW), seeking to force Colorado’s secretary of state to declare Trump ineligible. CREW hopes to build on a victorious suit it filed last year that removed a New Mexico county commissioner from office for participating in the Jan. 6 insurrection.

Other lawsuits are pending in Utah, Minnesota, and New Hampshire. However, a federal judge in Florida dismissed a similar case late last month.

Tribe and Luttig predict that eventually a case will reach the Supreme Court and “test the judiciary’s ability to disentangle constitutional interpretation from political temptation.”

What happens when the issue arrives before the nation’s most powerful judicial body remains unknown. But if you think that John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett will vote to boot Trump from the ballot, I have a large wager to make with you.

Should individuals subject to domestic violence restraining orders be allowed to own guns? If you think the answer is a screaming, obvious “No,” you haven’t been paying much attention to the Supreme Court’s radical reinterpretations of the Second Amendment over the past 15 years. The court will be asked to decide the issue in United States v. Rahimi when it reconvenes in October.

At the center of the case is Zackey Rahimi, a 23-year-old with a history of violence and drug dealing. In December 2019, Rahimi beat up his girlfriend in a parking lot in Arlington, Texas, and tried to shoot a bystander who had witnessed the attack. Two months later, his girlfriend obtained a restraining order from a state court judge that prohibited him from harassing her, and barred him from possessing a firearm.

It didn’t take Rahimi long to resume his menacing ways. In August 2020, he was arrested for stalking his ex; in November, he threatened another woman with a gun. In December 2020 and January 2021, he participated in a series of five shootings in the Arlington area. Police in Arlington identified him as a suspect in the shootings and obtained a warrant to search his home, where they uncovered a .45- caliber pistol, a .308-caliber rifle, pistol and rifle magazines, additional rounds of ammunition, approximately $20,000 in cash and a copy of the restraining order Rahimi had flagrantly violated.

The police alerted an agent with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives about what they had found, and a federal grand jury subsequently indicted Rahimi for violating section 922(g)(8) of the Gun Control Act of 1968, which prohibits anyone subject to a domestic violence protective order from possessing a firearm. The section was added to the Gun Control Act with bipartisan support in 1994, the same year Congress passed the Violence Against Women Act, which increased funding for the investigation and prosecution of violent crimes against women.

Represented by the Federal Public Defender’s Office for the Northern District of Texas, Rahimi moved to dismiss the indictment, arguing that section 922(g)(8) ran afoul of the Second Amendment. The trial court denied the motion, and Rahimi pleaded guilty. He was sentenced to serve six years in prison, but reserved his right to appeal the denial of his dismissal motion.

In 2022, Rahimi’s appeal came before the 5th Circuit Court of Appeals. Based in New Orleans, the circuit oversees federal litigation in cases from Mississippi, Louisiana, and Texas, and is widely regarded as the most conservative appellate panel in the country. In an article published this past January, Esquire magazine described the circuit as “the blown fuse of American jurisprudence” for its history of right-wing activism, particularly on abortion.

Despite its well-earned reputation as the go-to tribunal for the radical right, the circuit initially affirmed Rahimi’s conviction in a brief opinion issued on June 8, 2022. One month later, however, the circuit withdrew its opinion, and on March 3rd of this year, issued an amended decision, reversing Rahimi’s conviction and declaring section 922(g)(8) unconstitutional.

As its amended opinion makes abundantly clear, the circuit’s about-face was prompted by the Supreme Court’s decision in New York Rifle & Pistol Association v. Bruen. Decided on June 23, 2002, Bruen struck down a century-old New York state regulation on concealed handgun permits on Second Amendment grounds.

In both Bruen and Dobbs v. Jackson Women’s Health Organization, in which the Supreme Court overturned Roe v. Wade the day after it decided Bruen, the court abandoned the methods of judicial scrutiny that judges have long used to determine the constitutionality of challenged laws by balancing the governmental interests advanced by the laws in question against the competing rights of individuals affected by the laws. In place of such interest-balancing, the Supreme Court substituted an “originalist” test based exclusively on the Justices’ highly selective reading of history and their sense of tradition.

Applying Bruen’s history and tradition standard to domestic violence, the 5th Circuit held that while section 922(g)(8) “embodies salutary policy goals meant to protect vulnerable people in our society”…it is “an [historical] outlier that our ancestors would never have accepted.”

The sexism of the 5th Circuit’s reasoning is blatant. By “our ancestors,” the circuit had in mind the views and interests of the wealthy white men who drafted and debated the merits of the Constitution during the “founding era” at the close of the 18th century. Excluded from the court’s opinion is any mention of the views or interests of the women of that era, who not only lacked the right to vote, but also had no legal protections against domestic violence.

The Justice Department moved quickly to petition the Supreme Court to review the 5th Circuit’s decision, and on June 30, the last day of its 2022-23 term, the court agreed to hear the case.

The Supreme Court is now poised to expand the reach of the Second Amendment yet again, continuing a process that began in 2008, when it sold its soul to the gun lobby with its 5-4 majority opinion written by the late Antonin Scalia in District of Columbia v. Heller, that held for the first time that the Second Amendment protects an individual right to own firearms.

Prior to Heller, the great weight of academic scholarship as well as the court’s 1939 decision in United States v. Miller had construed the Second Amendment, in keeping with the actual debates of the Constitutional Convention, as protecting gun ownership only in connection with service in long-since antiquated state militias.

In 2010, the court again genuflected to the gun lobby. In another 5-4 opinion in McDonald v. Chicago, this time written by Samuel Alito, the court extended Heller, holding that the individual right to keep and bear arms is “incorporated” by the 14th Amendment’s due process clause and is therefore applicable to the states and local governments.

Last year’s Bruen decision was decided on a 6-3 vote, with all the court’s Republican appointees, including Chief Justice John Roberts, joining Clarence Thomas’ majority opinion.

Still, there is some cause for optimism. Rahimi is an especially ugly standard-bearer for gun-rights groups. “In some ways Rahimi…is the best case for gun safety advocates,” UCLA law professor Adam Winkler told USA Today in a recent interview. “The Justices are going to be understandably reluctant to say that domestic abusers have a right under the Second Amendment to possess firearms.”

To-date, no gun-rights groups have filed amicus (“friend of the court”) briefs on Rahimi’s behalf with the Supreme Court, although representatives from both the Second Amendment Foundation and Gun Owners of America told USA Today that they planned to do so.

In the meantime, the court remains mired in a crisis of legitimacy that has seen its public approval ratings plummet to all-time lows. A ruling in Rahimi’s favor will likely aggravate that crisis, and for good reason. Every month an average of 70 women are killed by an intimate partner — some of whom had protection orders against their killers.

The court has until the end of June to resolve the case, just before the 2024 elections.

The president is getting warmer, but remains resistant to the drastic reform democracy requires.

The Supreme Court concluded its October 2022 term with three reactionary rulings. In rapid succession, it ended affirmative action in college admissions; overturned President Biden’s student debt forgiveness program; and held that an evangelical Christian graphic designer has a First Amendment right to refuse to create websites for same-sex weddings.

Biden reacted quickly, issuing separate statements on each of the decisions. He condemned them as wrongly decided, painful and disappointing, and promised to develop strategies to counter their impacts. But he stopped short of backing the only reform that can reverse the Supreme Court’s extreme rightward turn: expanding the court and filling the new seats with liberal jurists if he is reelected and the Democrats galvanize their base to retake both houses of Congress in 2024.

To his credit, Biden was forceful in rebuking the court’s 6-3 majority opinion on affirmative action written by Chief Justice John Roberts.

“For 45 years,” he said in a televised address delivered on June 29 from the Roosevelt Room at the White House, “the United States Supreme Court has recognized a college’s freedom to decide…how to build diverse student bodies to meet their responsibility of opening doors of opportunity for every single American. In case after case…the court has affirmed…that colleges could use race not as a determinative factor for admission, but as one of the factors among many in deciding who [sic] to admit from a… qualified pool of applicants.”

He added, “Today, the court once again walked away from decades of precedent” …and issued a decision that as the dissent [written by Justice Sonia Sotomayor] states, ‘rolls back decades of precedent and momentous progress.’”

Biden also rebutted the insidious myth that affirmative action leads to the admission of unqualified students, and pledged his support for new measures to bolster diversity in higher education.

As he was leaving the room, a reporter shouted out, “President Biden, the Congressional Black Caucus said the Supreme Court has ‘thrown into question its own legitimacy.’ Is this a rogue court?”

Biden paused for a moment, smiled slightly and turned toward the reporter. “This is not a normal court,” he answered. Without further comment, he exited through a side door.

Later that afternoon, in an interview with MSNBC’s Nicolle Wallace, Biden was asked what he meant by his answer. He replied that the court has “done more to unravel basic rights and basic decisions than any court in recent history, and that’s what I meant by not normal.” He cited last year’s reversal of Roe v. Wade, and observed that the court has “ruled on a number of issues that … had been precedent for 50, 60 years sometimes.”

But he also flatly shot down growing calls by progressives for court expansion, saying, “I think if we start the process of trying to expand the court, we’re going to politicize it maybe forever in a way that is not healthy.”

Biden is a steadfast opponent of court expansion. Throughout the 2020 campaign, when repeatedly pressed on the issue, he promised to convene a blue-ribbon commission to study the need for court reform. He made good on that promise in April 2021 when he issued an executive order that created a bipartisan member panel of former federal judges, high-powered attorneys and law professors to examine the pros and cons, not only of expansion, but also such measures as term limits for Supreme Court justices and ethics reforms aimed at establishing a binding code of judicial conduct for the court, which remains the only federal judicial body that operates without a code.

In the end, however, the commission issued a 288-page final report the following December that can charitably be described as a dud. Apart from tepid and vague language endorsing increased transparency in the court’s internal procedures and the adoption of an “advisory” [but not mandatory] code of conduct, the commission failed to advance any concrete proposals. In the words of The Nation columnist Elie Mystal, the entire endeavor “was designed to fail” from the start, and was “set up to give the president and Senate Democrats cover for total inaction.”

Given the Supreme Court’s recent track record and its virtually unchecked power, such inaction can no longer be justified. With its six-member Republican supermajority, including three justices appointed by Donald Trump, the court is driving the country and American law backward.

The court’s extremism is inflaming voter anger and will likely be a key driver of turnout in the 2024 election. Biden should be shrewd enough to harness that anger. It is not sufficient for him to acknowledge that the Supreme Court isn’t “normal.” It’s time for him to recognize that the court is broken, and the only way to fix it is to expand it.

June 4, 2018 is not considered a landmark date in the annals of American legal history, but perhaps it should be. On that day, Donald J. Trump, the 45th president of the United States, took to Twitter and declared, “I have the absolute right to PARDON myself…”

Trump’s tweet was part desperation and part defiance. It was dispatched in the midst of Special Counsel Robert Mueller’s investigation into alleged Russian meddling in the 2016 election. At the time, Trump feared Mueller’s probe could lead to his prosecution for conspiracy and obstruction of justice once he left office and was no longer shielded by the Justice Department’s policy against indicting a sitting president. A self-pardon would serve as his get-out-of-jail card. It would also be entirely without precedent in American history.

Trump survived the Mueller probe unscathed and uncharged. But now that he is running for reelection following an indictment for absconding to Mar-a-Lago with a trove of top-secret documents (and may yet be charged for his part in the Jan. 6th insurrection) the self-pardon issue has reemerged with renewed urgency.

If Trump is reelected, he could well become the first and only American president to immunize himself from criminal prosecution. And as incredible as it may seem, he might be able to do so constitutionally.

The pardon power is inscribed in Article II, Section 2 of the Constitution, which bestows upon the president the prerogative “to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

The impeachment limitation explains why Trump did not pardon himself in connection with his two impeachments, the first of which began with a House vote on Dec. 18, 2019, and the second with a House vote on Jan. 13, 2021, just days before the inauguration of Joe Biden. In addition to cases of impeachment, the power is also limited in two other important respects: Presidents cannot pardon individuals accused of committing state crimes. Nor can they grant pardons for future federal crimes that have not yet taken place.

Apart from these restrictions, however, the pardon power is vast. As the Supreme Court observed in Ex parte Garland, an 1866 ruling involving a pardon granted by President Andrew Johnson to a former member of the Confederacy:

The power thus conferred is unlimited, with the [impeachment] exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

As the Garland decision indicates, pardons can be exercised broadly and preemptively. Gerald Ford famously pardoned Richard Nixon preemptively “for all offenses against the United States which he, Richard Nixon, has committed or may have committed.”

Like Trump, Nixon considered a self-pardon before Ford came to his rescue. As Bob Woodward and Carl Bernstein chronicled in their 1976 book “The Final Days,” Nixon discussed the possibility of a self-pardon with his aides and attorneys for his role in the Watergate break-in and cover-up, but was dissuaded from acting. A legal memorandum written by the Office of Legal Counsel (OLC) three days before Nixon announced his resignation on live TV on Aug. 8, 1974, concluded that despite the pardon power’s expansive reach, “Under the fundamental rule that no one may be a judge in his own case, it would seem that the question [of a self-pardon] should be answered in the negative.”

The OLC is a unit of the Justice Department that offers legal advice to the president and executive branch agencies. Its opinions are highly valued, but they are not the law.

That’s the key to predicting what could happen if Trump is given a second chance at the presidency. Trump is far more of a threat to constitutional norms and the rule of law than Nixon ever was. If returned to the White House, he would likely dismiss the OLC memo as dated and irrelevant. Indeed, in a confidential 20-page letter sent to Mueller in January 2018 and later obtained by The New York Times, Trump attorneys Jay Sekulow and John Dowd suggested he could pardon all those targeted by the probe, including himself.

Trump subsequently pardoned several of Mueller’s targets, including Trump’s former campaign manager Paul Manafort and his first national security adviser Michael Flynn. But he stopped short of pardoning himself, perhaps in the mistaken belief that after evading Mueller, he would never actually be indicted.

That caution is now gone. A reelected and indicted Trump will stop at nothing to insulate himself from legal accountability and possible imprisonment. A rational actor might be content with firing Special Counsel Jack Smith and appointing a new attorney general to exact revenge on the Biden administration, but Trump has never been a rational actor.

Still, Trump could expect legal challenges to a self-pardon. Constitutional law experts are divided on whether any challenges could succeed.

“The arguments about whether a president can pardon himself are not only unsettled in the sense that they haven’t come up before, but they’re also unsettled in the sense that reasonable lawyers could look at the materials [the Constitution, and the history of prior pardons] and say either result is legally defensible,” Harvard Law School professor Mark Tushnet told CBS News earlier this month.

“One perspective is that the pardon power is quite broad, and the Constitution does not explicitly forbid a self-pardon,” said Jeffrey Crouch, an expert on executive clemency, in a recent interview with Yahoo News. “The other perspective is that a self-pardon would, among other things, inappropriately allow the president to decide his fate in his own case. At some point, the U.S. Supreme Court would likely have to decide on the constitutionality of a self-pardon.”

A ruling by the Supreme Court, stacked with three Trump appointees and two angry old reactionaries, is nothing the liberal or progressive left should welcome. We don’t want to give Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett the opportunity to equip Trump with prerogatives befitting a Medieval monarch or the dictator of a developing nation.

A far better defense against a future self-pardon is to keep Trump from being reelected in the first place. One term was almost enough to destroy what remains of American democracy. A second would be crippling.

Donald Trump is the first American president to be indicted. No matter where you see yourself on the political spectrum, that is a very big deal.

Although the initial criminal case against Trump is being handled by Manhattan District Attorney Alvin Bragg for what some see as relatively minor business-fraud crimes committed in connection with the payment of hush money to a porn star, it won’t be the last. By late spring or early summer, the ex-president will likely be charged with more consequential offenses in Georgia and in federal court for plotting to overturn the results of the 2020 election; inciting the Jan. 6 insurrection; and absconding to Mar-a-Lago with a trove of top-secret documents. While Trump will be shielded with the presumption of innocence as the wheels of justice turn, the available public evidence suggests he is in serious jeopardy of being convicted of multiple state and federal felonies.

Trump also faces liability in two pivotal civil trials in New York. A defamation/rape lawsuit brought by writer E. Jean Carroll is currently underway. In addition, Trump is slated to go on trial in October in a massive fraud case brought by New York Attorney General Letitia James.

But even as we anticipate the sweet sound of jury verdicts read in open court, we would do well to reflect on the broader implications of prosecuting Trump for the future of American democracy. There are, on close analysis, both obvious benefits and inherent limitations to what can be achieved through litigation.

On the positive side, there can be no question of the need to hold Trump accountable for abusing women, grifting his way to the Oval Office in 2016 and, more critically, for his attempts to cling to power after losing the 2020 campaign by more than 7 million votes. We have all heard the cliché that “no one is above the law,” but prosecuting Trump has given the adage new life and content.

There is no good reason to accord Trump, now a private citizen, the kind of legal immunity that the Justice Department unfortunately decided, as a matter of discretionary policy, to afford Richard Nixon and Bill Clinton when they were sitting presidents. Other democracies around the world, including France, Germany and Portugal, have prosecuted their political leaders for corruption with no enduring ill effects. There should be no room for American exceptionalism when it comes to our own leaders.

At the same time, we should be under no illusions that taking Trump down will cure all that ails our democracy. Trump is the head of the Republican Party and a political movement that has morphed into a form of 21st-century fascism. Prosecuting Trump, and even sending him to prison, will not extinguish the movement he unleashed.

Fascism, as I have written before, is an emotionally loaded and often misused term, but it is as real today — as a political and cultural force, as a set of core beliefs and mode of governance — as it was when Benito Mussolini founded the Italian Fascist Party in 1919 and declared himself dictator six years later. It is on the rise once more across the globe in the Philippines, India, Western Europe, Russia and here at home.

Many instructive discussions of fascism can be found in the works of scholars such as Ruth Ben-Ghiat, Timothy Snyder, Jason Stanely and Henry Giroux. Of all the definitions of the term, perhaps the most incisive appears in Robert Paxton’s classic study “The Anatomy of Fascism” (Harvard University Press, 2004). “Fascism,” Paxton writes,

may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation or victimhood and by compensatory cults of unity, energ, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.

After hesitating to call Trump a fascist when he initially took office, Paxton changed his views after Jan. 6. “I resisted for a long time applying the fascist label to Donald J. Trump,” he wrote in Newsweek, “[But] Trump’s incitement of the invasion of the Capitol…removes my objection to the fascist label. His open encouragement of civic violence to overturn an election crosse[d] a red line. The label now seems not just acceptable but necessary.”

Giroux offered even more powerful observations in an essay, “Fascist Politics in the Age of Neoliberal Capitalism,” cross-posted earlier this month by CounterPunch and LA Progressive:

An upgraded form of fascism with its rabid nativism and hatred of racial mixing is currently at the center of politics in the United States. Traditional liberal values of equality, social justice, dissent and freedom are now considered a threat to a Republican Party supportive of staggering levels of inequality, white Christian nationalism and racial purity.

It is by no means clear that the U.S. can withstand the existential threat posed by the upgraded form of fascism we face today. Combating fascism requires a coordinated and concerted political response. To quote Giroux again:

Confronting this fascist counter-revolutionary movement necessitates creating a new language and the building of a mass social movement in order to construct empowering terrains of education, politics, justice, culture and power that challenge existing systems of white supremacy, white nationalism, manufactured ignorance and economic oppression.

Seen in this light, the effort to bring Donald Trump to justice is the beginning of a much longer struggle, not the end.

This is the concluding feature story in the multi-part Dig series, “The Supreme Court’s War on the Future,” investigating how the Supreme Court was remade in the image of Robert Bork.

The radical right’s long crusade to capture the Supreme Court is over. Anyone who doesn’t realize this hasn’t been paying attention, or has imbibed the Kool-Aid served by Chief Justice John Roberts at his 2005 Senate confirmation hearing, when he promised to work as a neutral arbiter on the bench much like a baseball umpire, calling only “balls and strike, and not to pitch or bat.”

This article originally appeared on Truthdig.

Instead of minding the strike zone, Roberts and his Republican confederates old and new have changed the rules of the game in a concerted effort to drive the country backward. Under the aegis of the regressive legal theory of “originalism” (see Part I of this series), they have issued a blistering succession of reactionary rulings on voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion, campaign finance, and the use of dark money in politics. Before the court’s current term concludes at the end of June, it likely will wreak more havoc in a series of pending cases on “religious liberty” and LGBTQ discrimination, affirmative action, student-debt forgiveness, and, once again, voting rights.

The court is at war with democracy and modernity. It must be stopped.

The good news is that from a legal standpoint, there is much that can be done to bring the court back into balance and restore its independence from the Republican Party and its dark money donors. We know what steps must be taken to fix the court. We need, among other measures, a code of ethics to root out corruption and conflicts of interests, as the Supreme Court is the only judicial body in the country whose members are not bound by one. We need term limits for the justices, and congressional overrides of far-right decisions to the maximum extent possible. Above all, we need to expand the number of seats on the court and fill them with contemporary-minded jurists who repudiate originalism in favor of “living constitutionalism,” the rival jurisprudential model that sees the Constitution as an evolving document.

Accomplishing any meaningful changes in the court’s composition and orientation, however, won’t come quickly or easily. Meaningful changes will require the support of a broad-based political movement that links the issue of court reform to legislative and grass-roots campaigns for social justice. This will be a long struggle waged across a variety of fronts — in courtrooms; over the airwaves, print media and the Internet; in the halls of Congress; in public meetings, teach-ins and demonstrations; and most decisively, at the ballot box.

* * *

Every successful political movement involves undermining the propaganda of the opposition. With that principle in mind, the first step we can take in building a movement to reclaim the Supreme Court is something every one of us can do as individuals: We can reject the myth that the court is apolitical. The sobering truth is just the opposite. Presidents nominate justices to advance political agendas. And once confirmed and vested with lifetime appointments, justices exercise extraordinary power, issuing rulings that affect all aspects of our lives, often acting as de facto super-legislators.

We can also abandon our reverence for the court’s presumed wisdom and scholarship. We may be legally bound by the court’s decisions, but there is no reason to regard the justices as infallible demigods deliberating on high. We can and should expose them as we would any other public servants or politicians, one by one and collectively, for producing poorly reasoned and result-oriented opinions, and betraying the public trust.

Washington Post columnist Perry Bacon Jr. has proposed a campaign of organized shaming as a short-term approach to reining in the court. “Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges,” especially those on the Supreme Court, Bacon argued in a recent article.

Among other concrete actions, Bacon advises weekly news conferences convened by high-profile Democrats, including on occasion the president, to slam the court’s most extreme rulings. He also calls on the Senate Judiciary Committee to convene hearings “in the mold of the Jan. 6 commission, with compelling witnesses and videos. Republican-appointed judges have been just as damaging to American democracy as Trump has been (if not more so), just in a less obvious way. That needs to be explained to the American public…[in] plain-spoken” language. He also suggests that in those conferences and editorials, the justices be identified according to their partisan affiliations.

To a certain extent, the shaming and public criticism Bacon advocates is already underway. As a result of the court’s extreme shift to the right and the antipathy the shift has engendered, the court’s approval ratings have plummeted, triggering a crisis of legitimacy unseen since the early 1930s.

If done artfully, shaming can be a catalyst for change. But long-term, we need broader remedies and specifically, court expansion. To get a sense of the possibilities, we need to turn to history.

Contrary to much conventional thinking, our court system is not fixed in stone, but has evolved over time. We are not the first generation to confront the issues of judicial power and abuse.

Americans have been debating — and at times openly fighting over — the proper nature of judicial power since colonial times. Legal disputes over taxation, the issuance of general search warrants known as writs of assistance and expansions in the jurisdiction of the King’s dreaded Vice Admiralty Courts were key factors in sparking the American Revolution.

Three of the 27 grievances listed in the Declaration of Independence concerned the administration of justice. The signers of the declaration complained that George III, the British monarch, had deprived them of the right to establish their own courts, that he had made judges dependent on him for their salaries and tenures and that he had deprived them of the right to trial by jury.

The Articles of Confederation, our first national charter, marked the end of British rule, but did not create a national court system. That task was left to the Constitutional Convention of 1787, which established a tri-partite federal government with a separate judicial branch.

The Supreme Court is the only court specifically mentioned in the Constitution. Article III, Section 1 of the Constitution provides: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The same section specifies lifetime tenure for all federal judges.

Nowhere does the Constitution say how many justices should sit on the Supreme Court. That decision is left up to Congress and the president through legislation passed and signed into law.

The Constitution is also silent on whether the Supreme Court should be endowed with the power of “judicial review” — the tool that authorizes it to invalidate or uphold acts of Congress, the president and the states at its sole discretion.

In the ratification debates that followed the Convention, the proponents and opponents of the new constitution put the concept of judicial review front and center in a clash of essays published by newspapers in New York and elsewhere that have since been collected and come to be known as the Federalist Papers and the Anti-Federalist Papers.

Writing under the pseudonym “Publius,” Alexander Hamilton, the nation’s first treasury secretary, outlined the principles of judicial review in Federalist No. 78, arguing:

“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”

Hamilton was aware of the potential for overreach, but he believed the federal judiciary would in practice be “the least dangerous” branch of government. Unlike Congress and the executive, he reasoned, the courts would have “no influence over either the sword or purse,” but would possess “only judgment,” rendering them dependent on the other branches to obey and carry out their decisions.

Not all the founders agreed. Almost forgotten in the ensuing hagiography of Hamilton are a set of anti-federalist warnings believed by historians to have been penned by New York state judge Robert Yates under the pseudonym “Brutus” that seem eerily to have presaged the rise of today’s imperial Supreme Court.

In essay No. 14, Brutus wrote that under the Constitution, the Supreme Court “would be exalted above all other power in the government, and subject to no control.” In No. 15, he added:

“[T]he supreme court . . . [will] have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away…. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

Hamilton’s position triumphed and became official doctrine with the Supreme Court’s landmark 1803 decision in Marbury v. Madison. As of August 2017, according to the Congressional Research Service, the court had used the power of judicial review to invalidate 182 acts of Congress and 1,094 state statutes and local ordinances as unconstitutional. In addition, it had also overruled, in whole or in part, 236 of its prior decisions. The numbers in all categories have grown since then.

Throughout the decades, the court has exercised its power of judicial review for both good and evil purposes. In Dred Scott v. Sanford (1857), it illustrated the darkest side of judicial review, invalidating the Missouri Compromise and declaring that Black Americans could never be citizens. It returned to the dark side in the early 1930s when it struck down key pieces of the New Deal. Last year’s Dobbs decision on abortion is another appalling example. By contrast, the court moved the country forward in Brown v. Board of Education (1954), overturning the regime of “separate but equal” that it had previously upheld in Plessy v. Ferguson (1896). Brown ushered in a brief period of enlightened judicial review under the guidance of Chief Justice Earl Warren (1954-1969).

As its power increased, the court occasionally encountered strong political pushback. Abraham Lincoln, for example, defied the court both in his decision to suspend habeas corpus during the Civil War, and with the issuance of the Emancipation Proclamation (1863) in direct contravention of Dred Scott. Other notable confrontations involved the conflicts in the 1930s between a reactionary court and a Democratic Congress and president, and those sparked by southern racists against the Warren Court and the civil rights movement.

Political pushback has also come in the form of proposals to change the number of seats on the court. Between 1789 and 1869, the size of the court was altered seven times to “pack” or “unpack” the panel for partisan purposes. Originally designed as a tribunal of six, the number of seats has varied from a low of five in 1801 in the middle of a battle for control of the judiciary between the waning Federalist Party and the rising Democratic-Republicans to a high of 10 in 1863, when Lincoln expanded the court to counter the influence of Chief Justice Roger Taney, author of the Dred Scott disaster. The number has remained at nine since 1869.

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Interest in court reform and expansion reemerged after Senate Republicans refused to hold a confirmation hearing for Merrick Garland, President Obama’s choice to replace Antonin Scalia, who died suddenly on Feb. 13, 2016. The interest picked up additional steam during the 2020 presidential campaign after President Trump succeeded in packing the court with young dogmatic originalists.

Although President Biden has never been a supporter of court expansion, he bowed to pressure from his left, and appointed a bipartisan blue ribbon commission of prominent academics and commentators to study the need for reform in April 2021. After seven months of meetings and deliberations, the commission produced a 294-page report but without making a single concrete recommendation.

On the plus side, the report contains a useful summary of the court’s history, including a discussion of the last significant attempt at expansion undertaken by President Franklin Delano Roosevelt. FDR’s experience offers several important lessons for contemporary reformers.

Roosevelt sent his court plan to Congress on Feb. 5, 1937. Formally known as the Judicial Procedures Reform Bill of 1937, the measure would have allowed the president to appoint up to six new justices, one for every member of the high court older than 70 years, six months, who had already served 10 years or more and declined to retire.

Facing stiff resistance in the Senate, despite his overwhelming victory at the polls a year earlier, FDR turned to the public on March 9, 1937, in the ninth of his famous radio “fireside chats.” Throughout his four terms in office, FDR used such addresses to speak directly to the American people, to quell their economic and social anxieties, explain his policies and rebut conservative critics as he attempted to steer the nation through the Great Depression and, later, the Second World War.

The ninth chat began over the static-filled airwaves much as did those that preceded it, with references to the unrelenting hardships that, in FDR’s words, had left “one-third of a Nation ill-nourished, ill-clad, and ill-housed.” The president then turned to the need to reorganize the federal judiciary, and especially the Supreme Court.

Roosevelt and the militant industrial union movement that formed the heart of his New Deal base were outraged by a series of ultra-right-wing rulings from the high court that had struck down key pieces of New Deal legislation, including the National Industrial Recovery Act, the Agricultural Adjustment Act and a New York state minimum wage law. In the coming weeks, the court was slated to issue decisions on the constitutionality of the National Labor Relations Act and the Social Security Act. The president and his allies feared the worst from the “Nine Old Men,” as the septuagenarian justices who sat on the court were often called. They believed that unless the court changed course, it could and very likely would destroy the economy and along with it, democracy itself.

In language that today’s court reformers and “living constitutionalists” might recognize as their own, FDR told his audience:

“When I commenced to review the situation [with the Supreme Court] with the problem squarely before me, I came by a process of elimination to the conclusion that, short of amendments, the only method which was clearly constitutional, and would at the same time carry out other much needed reforms, was to infuse new blood into all our Courts. We must have men worthy and equipped to carry out impartial justice. But, at the same time, we must have Judges who will bring to the Courts a present-day sense of the Constitution — Judges who will retain in the Courts the judicial functions of a court, and reject the legislative powers which the courts have today assumed…

“Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present. This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our Constitutional Government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’”

The bill never was enacted. After months of heated debate, the Senate voted to send it back to committee, and the House never brought it to the floor. Ever since, the “court-packing plan,” as the scheme has been dubbed in mainstream historical narratives, has been seen as “the most humiliating defeat” of FDR’s career.

Except that it wasn’t a failure at all. On March 29, 1937, the Supreme Court did a complete about-face, upholding a Washington state minimum-wage statute similar to the New York law it had overturned the year before. In April, the court upheld the National Labor Relations Act, and in May, it validated the Social Security Act.

Over the next six years, eight of the Nine Old Men retired, allowing FDR to replace them, and to elevate one of the court’s liberals — Harlan F. Stone — to the post of Chief Justice. The court never again invalidated a New Deal program. FDR would later claim, “We obtained 98% of all the objectives intended by the court plan.”

Historians have debated the cause of the court’s turnaround, but pressure from the administration and the threat of intensifying labor unrest undoubtedly played a critical role. Indeed, on the morning of March 9, 1937, just hours before FDR’s chat, The New York Times ran two front-page stories about a new wave of “sit-down strikes” spearheaded by the United Auto Workers of America in Detroit and Flint, Michigan. The strikes, the paper reported, were “the most drastic…that the automobile industry has experienced,” halting production at factories owned by Chrysler, Chevrolet, Packard and the Hudson Motor Car Company. The workers eventually won, and the UAW was recognized as their bargaining agent.

We are faced today with echoes of the past — a Supreme Court that has moved sharply and unpopularly to the extreme right; an economy that is backsliding into ever-worsening oligarchy and is on the verge of a new recession; a world that is teetering on the brink of another global war.

If anything, the need to expand the court is more urgent than ever. We don’t have Nine Old Men on today’s Supreme Court. Clarence Thomas will be 75 in June and Samuel Alito will turn 73 in April, but Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett are in their fifties, youngsters in judicial terms. They can be expected to serve for decades.

We also do not have a labor movement that can pressure the court. Only 10.1% of the American workforce is unionized, and, with some exceptions, it isn’t particularly militant.

We do, however, have the makings of a progressive coalition with far-reaching potential. Some of that potential was unleashed in the midterm elections, galvanized by the Dobbs decision. We need to merge that energy with movements organized around police violence, debt relief, voting rights, economic inequality and other causes that are stymied by the current Supreme Court.

Success, even in the long run, is by no means guaranteed. Basic court reform will require strong and aggressive Democratic majorities in Congress, and a Senate caucus prepared to abandon or carve out exceptions to the filibuster. In any event, we have no alternative but to push ahead. Either we accept a reactionary court for the foreseeable future, or we try to change it.

As University of Pennsylvania law professor Kermit Roosevelt III, FDR’s great-great grandson, put it in a December 2021 article for Time magazine, “We are witnessing a minority takeover of our democracy,” with the Supreme Court standing in the way.

Professor Roosevelt was a member of the Biden Supreme Court Commission. He began his stint there as a skeptic of court expansion, but the experience changed his thinking. He is now a staunch advocate. We can’t be intimidated or deterred “by wishful bromides about neutral judges and myopic defense of the status quo,” his article concludes. “Court expansion may be the only thing that will save our democracy for the next generation.”

Truer words could not have been written by FDR himself.

In and of itself, the power of judicial review is neither good nor bad. Like any other power, it can be wielded to advance or thwart democratic values and the ideals of equal justice. Over the decades, the court has done just that, handing down both deplorable and venerable rulings, some extremely right-wing and some liberal and progressive.

In the most despicable decision in its entire history, Dred Scott v. Sandford (1857), the court held that African Americans, no matter where they resided or whether they were then free or enslaved, could not be American citizens. The decision specifically invalidated the Missouri Compromise of 1820, which had prohibited slavery in the Louisiana territory north of the 36°30′ latitude line.

In the words of Chief Justice Roger Taney, who wrote the majority opinion and was himself a former slave owner, Black Americans "had no rights that the white man was bound to respect." The Dred Scott decision plunged the country into a constitutional crisis and helped trigger the Civil War.

With the end of Reconstruction, the Supreme Court again moved sharply to the right in the Civil Rights Cases of 1883, a set of five consolidated decisions that struck down portions of the Civil Rights Act of 1875. The 1875 act prohibited racial discrimination in transportation facilities, hotels, theatres and other places of "public amusement." By a vote of 8-1, the court held that the federal government had no power to outlaw discrimination in the private sector. (Discrimination in employment and places of public accommodation would not be outlawed until passage of the Civil Rights Acts of 1964 and 1968.)

Over the decades, the court has done just that, handing down both deplorable and venerable rulings, some extremely right-wing and some liberal and progressive.

The court struck another crippling blow against racial equality in Plessy v. Ferguson (1896), upholding the constitutionality of a Louisiana law that required separate railroad cars for white and black people. The ruling constitutionalized the doctrine of "separate but equal," and legitimized segregation and white-supremacy institutions and practices that would persist in the South into the 1950s in what historians call the "Jim Crow" era.

During the late 19th century and into the 20th, the court exercised the power of judicial review to come to the aid of big business, trusts and monopolies, ruling that the federal government had the authority to break up labor strikes, declaring laws setting limits on maximum working hours unconstitutional, and invalidating child-labor and minimum-wage laws.

Continuing its bias in favor of corporations over labor, the court invalidated several key legislative pieces of the early New Deal, stymying the Roosevelt administration's efforts to fight the Great Depression. It was not until President Franklin Delano Roosevelt announced a plan to expand the court to include as many as 15 justices that the high tribunal turned around. Although legislation to implement the plan never passed, the court subsequently upheld the National Labor Relations and Social Security Acts and other progressive pillars of FDR's economic recovery package.

Finally, a great sea change in the use of judicial review took place during the tenure of Chief Justice Earl Warren, who led the court from 1953 until his retirement in 1969. In one of the most enlightened and progressive decisions in its history, Brown v. Board of Education (1954), the court unanimously held that state laws establishing racial segregation in public schools are unconstitutional. The decision put a formal end to the post-Civil War segregation doctrine of "separate but equal" and explicitly overturned Plessy v. Ferguson.

Under Warren's stewardship, the court issued a host of other landmark liberal decisions, upholding the Voting Rights Act, establishing First Amendment protections for newspapers, reporters and publishers against defamation lawsuits brought by public officials and public figures, establishing the reapportionment principle of "one person one vote," invalidating state laws that banned interracial marriage, guaranteeing the right to counsel in criminal cases, and much more.

Unfortunately, in recent decades, the court has shifted steadily back to the right. The move to the right has been especially acute since the appointment of Chief Justice John Roberts in 2005.

With Roberts at the helm, the court has, among other things, reinterpreted the Second Amendment to include an individual right to bear arms, undermined the legal foundations of union organizing, removed political gerrymandering from the jurisdiction of federal courts, and opened election campaigns to unlimited spending by corporations, unions and wealthy individual donors.

The Roberts court has been particularly aggressive in rolling back voting rights. In 2013, in a 5-4 majority opinion penned by Roberts himself in the case of Shelby County v. Holder, the court gutted the "preclearance provisions" of the Voting Rights Act. Those provisions, now moribund, required advance federal approval of changes in election procedures in jurisdictions with a history of racial discrimination.

The Roberts court has been particularly aggressive in rolling back voting rights.

Shelby County was a stark reminder of the dark side of judicial review, coming only seven years after Congress had reauthorized the Voting Rights Act by a 98-0 vote in the Senate and a 390-33 margin in the House of Representatives.

To be fair, the record of the Roberts Court has included some liberal rulings, especially in the field of gay rights and same-sex marriage.

However, with conservatives now holding a solid 6-3 majority on the court and utilizing the awesome power of judicial review, the future looks decidedly bleak. Indeed, in its October 2021 term, the court returned to its reactionary roots, overturning Roe v. Wade and Planned Parenthood v. Casey and revoking the federal constitutional right to abortion with its decision in Dobbs v. Jackson Women's Health Organization. The court also created grave new obstacles to gun control with its opinion in New York Rifle & Pistol Ass'n. v. Bruen. The October 2022 term promises to deliver more of the same.

Reasonable minds can differ about the most regressive opinions of the Roberts Court. But here are the decisions that should make any court-watcher’s list.

Crawford v. Marion County (2008): Paving the way for other voter suppression techniques, the court upheld an Indiana law requiring all in-person voters to present a photo ID issued either by the state or the federal government.

District of Columbia v. Heller (2008): Declaring for the first time that the Second Amendment protects an individual right to bear arms.

Citizens United v. FEC (2010): Overturning a century of campaign finance law and sparking the growth of super PACs, the court held that corporations, unions and other groups could spend unlimited money on elections.

Shelby County v. Holder(2013): The court gutted the “preclearance provisions” of the Voting Rights Act, which required advance federal approval of changes to election procedures in jurisdictions with a history of racial discrimination.

McCutchen v. FEC (2014): In a follow-up to Citizens United, the court invalidated limits placed on the aggregate amount of money individuals can donate directly to political candidates during any two-year election cycle.

Burwell v. Hobby Lobby Stores (2014): Exempting “closely held” corporations with religious objections from the Affordable Care Act’s provisions requiring employers to provide workers with health care insurance coverage of contraceptives.

Gossip v. Gross (2015): In a disheartening decision for opponents of the death penalty, the court held that the Eighth Amendment does not require that a method of execution be pain-free.

Trump v. Hawaii (2018): Yielding to the Trump administration’s bigotry, the court upheld the former president’s Muslim travel ban as a proper exercise of executive branch authority.

Janus v. AFSCME (2018): Breaking with over 40 years of labor-law precedent, the court held that public-employee unions may not collect “fair-share” fees from non-union members to help pay for the costs of collective bargaining.

Rucho v. Common Cause (2019): Dealing a crippling to democracy, the court held that issues of partisan gerrymandering are outside the jurisdiction of the federal courts.

Our Lady of Guadalupe School v. Morrisey-Berru(2020): Catholic elementary school teachers are “ministers,” and cannot sue for employment discrimination.

Brnovich v. Democratic National Committee (2021) Upholding two Arizona voter-suppression laws that prevent out-of-precinct voting and so-called “ballot harvesting,” the practice of gathering and submitting mail-in ballots by third parties.

Dobbs v. Jackson Women’s Health Organization(2022): Roe v. Wade and Planned Parenthood v. Casey are overruled.

New York State Rifle & Pistol Association Inc. v. Bruen (2022): New York’s permit system for obtaining an unrestricted license to carry a concealed firearm violates the Second and 14th amendments.

Carson v. Makin (2022): The free exercise rights of parents who live in districts without public secondary schools are violated by a state statute that denies them tuition assistance payments to send their children to religious schools.

Kennedy v. Bremerton School District (2022): The free exercise and free speech clauses of the First Amendment permit a high school football coach to kneel in prayer on the field with students after games.

West Virginia v. Environmental Protection Agency (2022): The Clean Air Act does not give the EPA broad authority to limit carbon emissions from power plants.

This is the first of a multi-part Dig series, The Supreme Court’s War on the Future, investigating how the Supreme Court was remade in the image of Robert Bork.

To fully appreciate and understand the Supreme Court’s hard cut to extremism, start with the failed nomination of Robert Bork in 1987. Bork never made it to the summit of the judiciary, but the legal theory of “originalism” he pioneered now thoroughly dominates the bench.

The Supreme Court’s controlling majority of six Republican activists has embraced originalism as an article of faith and practice. Under the stewardship of Chief Justice John Roberts, the court has deployed its tools and techniques to reinterpret the Constitution and create a legacy of legal devastation with a series of landmark rulings on voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion and campaign finance. The court’s current session, which opened in early October, promises to deliver more of the same, with cases on “religious liberty” and LGBTQ discrimination, the “independent state legislature” doctrine, affirmative action and more.

Roberts and company are Bork’s ideological offspring and revenge. Their jurisprudence is the culmination of a project that began with Bork long before his rejection by the Senate.

Until his failed Supreme Court nomination, Bork had a storied career. In March 1973, while on hiatus from Yale, Bork joined the Nixon administration as solicitor general. In October of that year, he was named acting attorney general and subsequently followed Nixon’s orders to fire Archibald Cox, the first Watergate special prosecutor, in what became known as the “Saturday Night Massacre”. In 1982, Reagan appointed Bork to the District of Columbia Circuit Court of Appeals, a position he held until 1988.

As a primary architect of originalism, Bork had become by the mid-1980s — along with Ed Meese, Reagan’s attorney general — the face of a legal counterrevolution aimed at reversing the expansion of civil rights and liberties that had been achieved during Chief Justice Earl Warren’s tenure on the court (1953-1969). His mission was to turn back the judicial clock to a pre-New Deal version of the United States.

A prolific writer as both an academic and an appellate judge, Bork argued at various points in his career that the Constitution contained no implied right to privacy, that Roe v. Wade was wrongly decided, and the Civil Rights Act of 1964 was unconstitutional. He also rejected the “one person, one vote” principle of legislative districting. Bork’s outspokenness and abrasive demeanor set him apart from the growing corps of conservative lawyers and legal scholars that were coalescing in the 1980s, making him a vulnerable target for Democrats determined to keep him off the nation’s highest judicial body.

* * *

The campaign to torpedo Bork’s nomination took shape quickly. On July 1, 1987, the day Reagan proudly announced Bork’s nomination, Sen. Ted Kennedy (D-Mass) took to the senate floor to denounce Bork’s selection to replace retiring conservative jurist Justice Lewis Powell. (Powell is best remembered in progressive circles for a confidential memo he penned in 1971 urging business leaders to become more involved in high-stakes litigation and the selection of judges, advice that led to the formation of institutions such as the Business Roundtable, the Heritage Foundation, the Pacific Legal Foundation, the Cato Institute, the Federalist Society and the Chamber of Commerce National Litigation Center.)

In words that would come to doom Bork’s nomination and spark a roiling debate about originalism that continues to this day, Kennedy decried what he called “Robert Bork’s America” as “a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

For 12 days in September, the Senate Judiciary Committee debated Bork’s qualifications, and heard five days of candid testimony from Bork himself. Much of the scrutiny focused on originalism as a method of constitutional interpretation and judicial decision-making. The prominent constitutional scholars that testified against Bork included Professor Laurence Tribe of Harvard and Professor Philip Kurland of the University of Chicago, who had worked as a consultant to the Senate Judiciary Committee during the Watergate investigation.

Outside the D.C. Beltway, another fierce battle took place. By the time the Senate hearings commenced, anti-Bork forces had raised a war chest of $12 million. In a manner similar to today’s political campaigns, the money was spent on focus groups, opinion polls, media consultants and especially on print, radio and TV advertising.

A newspaper ad taken out by the National Abortion Rights Action League asserted a vote for Bork was the equivalent of voting for a politician who threatened to reverse “every advance women have made in the 20th century.” Similar ads were placed by the National Education Association and Planned Parenthood.

Most devastating of all was a 60-second television spot paid for by People for the American Way and narrated by the famed actor Gregory Peck. In his best Atticus Finch voice, Peck sounded the tocsin:

"Robert Bork wants to be a Supreme Court justice, but the record shows he has a strange idea of what justice is. He defended poll taxes and literacy tests which kept many Americans from voting. He opposed a civil rights law that ended 'whites only' signs at lunch counters. He doesn’t believe the Constitution protects your right to privacy. And he thinks that freedom of speech does not apply to literature and art and music. Robert Bork could have the last word on your rights as citizens. But the Senate has the last word on him.”

On the other side of the divide, Reagan went to great lengths to salvage the nomination, describing Bork’s appointment as his “top domestic priority.” But even the “Great Communicator” couldn’t get his message to resonate. Public opinion, which trended slightly in favor of Bork in early September, turned decisively against him by the end of the month. A Tribune Media poll released on Sept. 28 showed the public opposed the nomination by nearly a 2-to-1 margin.

Bork’s prospects officially came to an end on Oct. 23, 1987. With six Republicans crossing party lines, the full Senate turned thumbs down against him by a vote of 58-42, the most lopsided vote against a high court candidate in U.S. history. His fall from grace was colossal. Ever since, judicial nominees have come to be wary of being “Borked,” a term that has entered the lexicon as a synonym for rejection in the face of adverse publicity and harsh cross-examination. Bork resigned from the Court of Appeals in 1988 and returned to academia, becoming a dyspeptic critic of liberalism, bemoaning the decline of Western culture, which he addressed with special bile in his book, Slouching Toward Gomorrah: Modern Liberalism and American Decline (1996). He died in relative obscurity in 2012.

* * *

Bork was defeated, but originalism lived on. Even before his nomination, the theory had established a beachhead on the court with the confirmation of Antonin Scalia in 1986. Although Scalia was in many ways as doctrinaire as Bork, the Senate unanimously confirmed him 98-0 on the same day it voted in favor of William Rehnquist’s elevation to the position of chief justice by a margin of 65-33. Having spent their capital in a losing bid to block Rehnquist, Senate Democrats were either too dispirited, disorganized or not yet fully aware of the dangers and potency of originalism to put up a fight against the first Italian-American justice. Compared to the treatment Rehnquist and Bork received, Scalia’s confirmation hearing was a lovefest.

Scalia was nine years younger than Bork and had served with him on the D.C. Court of Appeals. Scalia also had a background in academia. In 1982, as a law professor at the University of Chicago, Scalia helped organize one of the first chapters of the Federalist Society, and became the chapter’s faculty advisor. He remained active in the society as a coveted speaker and symposium guest until his passing in 2016.

In 1991, the Senate narrowly confirmed another self-declared originalist and Federalist Society member, Clarence Thomas, after a bitter confirmation hearing highlighted by Anita Hill’s explosive allegations of sexual harassment. Nominated by President George W. Bush, Thomas also came to the high court by way of the D.C. circuit, but had produced only a modest paper trail, obscuring his future political machinations. Two years later, however, according to The New York Times, Thomas told two of his law clerks that he planned to serve on the court until 2034, and until then would make the lives of liberals “miserable.”

Scalia and Thomas brought a new brand of originalism to the court that arose in response to critics who charged that the actual intentions of the framers of the Constitution were too varied, conflicting and often ambiguous to serve as a basis for judicial decision-making. Instead of emphasizing original intent, they and other “new originalists” focused on the “original public meaning” of Constitutional provisions, which, they contended, could be ascertained from the recorded debates of the founding era and from such sources as late 18th-century dictionaries. The key, as law professors Michael Rappaport of the University of San Diego and John McGinnis of Northwestern University, explained in an influential 2007 law review article would be to determine “how a reasonable person at the time of the Constitution’s adoption would have understood its words and how they thought they should be interpreted.”

All originalists — whether of the old or new stripe — contend that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.

In fact, originalism does nothing of the sort. Fordham University history professor Saul Cornell summed up the fatal flaws of the theory in a scathing 2011 Dissent article, New Originalism: A Constitutional Scam. The first academic iteration of Originalism, Cornell wrote,rested on “shaky historical foundations” because the Founders “did not speak with a single voice on most constitutional questions.”New Originalism, embodied by the more activist Federalist Society, was in Cornell’s estimation even more dubious, amounting to “little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”

Result-oriented judging, of course, has existed from the earliest days of the republic. Originalism in a nascent form existed long before the term was attached to a specific legal philosophy in the latter part of the 20th century. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th, and 15th amendments, is another originalist landmark.

Originalism in a nascent form existed long before the term was attached to a specific legal philosophy in the latter part of the 20th century. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. citizens.

As the court entered the second decade of the 21st century, however, it remained divided between conservatives, liberals and centrists, often dividing 5-4 in major rulings. The ascension of Donald Trump as the 45th president in 2016 and the death of Justice Ruth Bader Ginsberg in 2020 radically altered the balance.

During the 2016 presidential campaign, Trump promised that, if elected, his judicial nominees would “all [be] picked by the Federalist Society.” Before the election, Trump released two lists of Supreme Court candidates, both compiled by the Federalist Society and the far-right Heritage Foundation.

After the election, Trump proved for once true to his word, meeting with Leonard Leo, then the Federalist Society’s executive vice president, to map out plans for selecting Scalia’s successor. Soon thereafter, Leo took a leave of absence from the society to formally advise Trump on the confirmation process for both Neil Gorsuch, who succeeded Scalia, and Brett Kavanaugh, who replaced the retiring centrist Anthony Kennedy. Leo had done the same in 2005-06, counseling President George W. Bush on the nominations of Roberts and Samuel Alito.

It’s easy to understand why Trump was attracted to the Federalist Society. From its fledgling beginnings as a debating club at a handful of elite law schools in the early 1980s, the society had mushroomed into a nationwide network of 70,000 economic, social and Christian conservatives, along with right-wing libertarians, organized in lawyers’ chapters in 90 cities, and with student affiliates in nearly every major law school. No longer a shoestring operation, the society’s 2016 budget exceeded $26 million, raised in large part from contributions by right-wing philanthropists like the Koch brothers and other deep-pockets like the Mercer, Scaife, and Lynde and Harry Bradley foundations.

Trump also pledged during the 2016 campaign that his Supreme Court nominees would be “originalists” in the mold of Scalia. He fulfilled that pledge, too, with the selection of Gorsuch, Kavanaugh and, finally, Amy Coney Barrett. Barrett’s confirmation in 2020 brought the number of former or current Federalist Society members on the tribunal to six. (Though Roberts says he doesn’t recall belonging to the Federalist Society, the group listed him as a member in its 1997-98 directory.)

For the most part, Barrett followed the post-Bork strategy of other high-court nominees, refusing in her confirmation hearing to give direct answers to important questions such as whether the Constitution requires a peaceful transfer of power, or if a president can pardon himself for federal crimes.

New Originalism, embodied by the more activist Federalist Society, was in Cornell’s estimation even more dubious, amounting to “little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”

But when asked by Sen. Diane Feinstein (D-CA) what it means to be an originalist, Barrett readily replied: “In English, that means that I interpret the Constitution as a law and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.” In an exchange with Sen. Amy Klobuchar (D-MN), she also revealed that Roe v. Wade was not a precedent the court could never reconsider and overrule.

And so, the stage was set for the court to implement an even more regressive form of originalism. In June, it handed down its opinions in Dobbs v. Jackson Women’s Health Organization and New York Rifle & Pistol Association v. Bruen. In Dobbs, the court not only upheld a restrictive Mississippi abortion law, but finally made the far right’s fevered dream of overturning Roe v. Wade and Planned Parenthood v. Casey come true. In Bruen, the court struck down a century-old New York state regulation on concealed handgun permits as violative of the Second Amendment.

In both cases, the court abandoned the traditional methods of judicial scrutiny that require judges to determine the constitutionality of challenged laws by balancing the governmental interests advanced by the laws in question against the competing rights of individuals affected by the laws. In place of interest-balancing, the court substituted a test based exclusively on the Justices’ highly selective reading of history and their sense of tradition.

Writing for a 5-4 majority in Dobbs, Alito advanced the march toward right-wing judicial supremacy, declaring that both Roe and Casey were “egregiously wrong from the start” because the word “abortion” doesn’t appear anywhere in the first eight amendments to the Constitution, or anywhere else in the text. He also held that abortion cannot be considered an implied or “unenumerated” fundamental right under the 14th Amendment’s due process clause — as Roe and Casey both held — because it is not “deeply rooted in [our] history and tradition.” As a result, he concluded, the court was free to overrule Roe and Casey unconstrained by the doctrine of stare decisis, which holds that judges should adhere to precedent.

A crowd gathers at the Supreme Court the night after the release of Alito’s draft majority opinion overturning Roe v. Wade. Photo: Victoria Pickering / Flickr / CC BY-NC-ND 2.0

Instead of respecting precedent, Alito reached deep into the bowels of Anglo-American common law to override it. He cited, among other sources, the work of Henry de Bracton, a 13th-century English cleric and judge who condemned abortions as homicide, and a 17th-century English jurist who described abortion as a “great crime” and sentenced at least three women to death for witchcraft. By the time the 14th Amendment was ratified in 1868, Alito raged on, “three-quarters of the States [had] made abortion a crime at all stages of pregnancy,” in order to prove his point that abortion rights are not deeply rooted in our history.

The only solution, in Alito’s view, was to strip abortion of its Constitutional protections and return the issue to “the people’s elected representatives,” opening the door to state abortion bans and the possibility of a future federal statute outlawing abortion nationwide.

Alito’s reading of history was shoddy. Not only did he give no weight to the 50 years that Roe had been the law of the land, but he ignored the actual early history of abortion rights in America. As University of Illinois history professor Leslie J. Reagan explained in her definitive study, When Abortion Was a Crime, “During the eighteenth and early nineteenth centuries…abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).”

Repudiating Roe and Casey was also unnecessary. The court easily could have upheld the Mississippi statute, which outlawed almost all abortions after 15 weeks, without scrapping the federal right entirely, as Roberts urged in a separate opinion.

Clarence Thomas wrote the 6-3 opinion in Bruen, which was joined by all the court’s Republican appointees, including Roberts. Like Alito, Thomas applied a specious history and tradition test to strike down New York’s long-standing handgun permit system. In so doing, he dismissed the broad history of gun regulation in the U.S., dating back to the earliest days of the republic. As Fordham’s Professor Cornell, one of the foremost authorities on the actual history of the Second Amendment, observed in a critique of Bruen published by SCOTUSBlog:

“The originalist methodology applied by Thomas has one set of rules that apply to interpreting legal texts that support gun rights, and another more demanding set of standards that apply to those that undermine them. The Thomas version of originalism might be summarized as follows: No amount of evidence is enough to support gun control, but no iota of evidence is too little to legitimate gun-rights claims. If one of the goals of originalism was to limit judicial discretion (a value few originalists continue to espouse now that they have a supermajority on the court), then the Thomas rule does the opposite. It provides a license to cherry-pick evidence with reckless abandon if the materials support the ideological agenda of the Federalist Society.”

Combined with the public leak of the draft of Alito’s Dobbs opinion in May and the fast-brewing scandal involving the role of Ginni Thomas in events related to the Jan. 6 insurrection, the court’s move to the right has triggered a crisis of legitimacy. In increasing numbers, Americans have lost trust in the court as an institution, and have come to see it correctly as a political body rather than an impartial arbiter of justice. The Dobbs decision is deeply unpopular, with 60% of respondents in recent rolls disapproving of the ruling. According to a June Gallup survey, Americans’ confidence in the court has plummeted to a new low. A mere 25% of respondents told Gallup they had “a great deal” or “quite a lot” of confidence in the Court.

And more bad decisions are on the horizon. In his concurring opinion in Dobbs, Thomas called upon his benchmates to revisit such privacy-based precedents as the right to contraception (Griswold v. Connecticut, 1965), the right to engage in same-sex intimacy (Lawrence v. Texas, 2003), and the right to same-sex marriage (Obergefell v. Hodges, 2015). Thomas and Gorsuch are also on record as favoring reconsideration of New York Times v. Sullivan (1964), another product of the Warren Court that shields the media from potentially crippling defamation lawsuits. Reaching even farther into the future, originalist academics such as the University of San Diego’s Rappaport have questioned the constitutionality of Social Security and Medicare.

Protest in front of the US Supreme Court in January 2017. Photo: Geoff Livingston / Flickr / CC BY-NC-ND 2.0

There is a better and more reality-centered way to adjudicate constitutional issues. Originalism’s rival, known variously as “living or dynamic constitutionalism,” asserts that while the text of the Constitution may be the starting point of any analysis, the meaning of the Constitution should evolve over time and accommodate contemporary values, social needs and changing traditions.

A good example of the alternative can be found in Kennedy’s majority opinion in Obergefell. As the court’s swing justice, Kennedy sometimes adopted originalism, as he did in his 2010 opinion in Citizens United v. F.E.C. In Obergefell, he took a full-throated living constitutionalism approach, writing:

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

It is no small irony that Kennedy was nominated to the court after Bork was defeated. But Kennedy retired in 2018, replaced by Kavanaugh, whose confirmation Senate Democrats were unable to halt.

There’s no denying the future of the Supreme Court looks grim. Still, as the successful fight against Bork long ago demonstrated, hope should never be abandoned. With enough public pressure and effective organizing, the court can be reformed and brought to serve the nation’s needs in the 21st century.

The prospects for reform will be subject of part II of this series.

This article was originally published on Truthdig.com

If the Republicans take back either the House or Senate tomorrow, the stage will be set for Donald Trump’s return in 2024. If that happens, there will be few, if any, guardrails left to preserve what is left of our damaged and fraying democracy.

Since 2016, the MAGA movement Trump leads has morphed from a retrograde white nationalist crusade to a full-blown neo-fascist force. This fact will become all-too apparent in a MAGA Congress led by Marjorie Taylor Greene, Lauren Boebert and Paul Gosar on the House side, and Ron Johnson, Josh Hawley and Ted Cruz in the upper chamber. Think of a media landscape dominated by an ascendant Steve Bannon and Breitbart as the MAGA movement drowns out what few dissident voices remain within the GOP.

All that is on the line tomorrow. And don’t count on the courts if Trump returns to power. The legal system, already infested by jurists hand-picked by the Federalist Society, will offer fewer and fewer safeguards as the movement undertakes to dismantle Social Security, Medicare, civil rights, environmental protection, trade-union rights, women’s rights and all vestiges of what it derisively refers to as the “administrative state.”

We are at an inflection point in our history where the choice confronting us is one between democracy — with all of its frailties and shortcomings — and a renewed and revitalized fascism.

Fascism is a loaded term, but if used correctly, it applies to Trumpism.

In his seminal study, “The Anatomy of Fascism,” Robert Paxton defined fascism as "a form of political behavior marked by obsessive preoccupation with community decline, humiliation or victimhood and by compensatory cults of unity, energy and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.”

Trump and Trumpism similarly embody the 14 common factors of fascism identified by the great Italian writer Umberto Eco in his 1995 essay, “Ur Fascism”:

• A cult of traditionalism.
• A rejection of modernism (cultural, rather than technological).
• A cult of action for its own sake and a distrust of intellectualism.
• A framing of disagreement or opposition as treasonous.
• A fear of difference. Fascism is racist by definition.
• An appeal to a frustrated middle class — either due to economic or political pressures from both above and below.
• An obsession with the plots and machinations of the movement’s identified enemies.
• A requirement that said enemies be simultaneously seen as omnipotent and weak, conniving and cowardly.
• A rejection of pacifism. Life is permanent warfare.
• Contempt for weakness.
• A cult of heroism.
• Hypermasculinity.
• A selective populism, relying on chauvinist definitions of “the people” that it claims to speak for.
• A heavy usage of Newspeak — impoverished vocabulary, elementary syntax and a resistance to complex and critical reasoning.

The eyes of history are on a group of state and federal prosecutors

“You come at the king, you best not miss.”

— Omar Little, The Wire

It has been 20 months since an enraged and armed mob of Trump supporters stormed the U.S. Capitol, seeking to stop the peaceful transfer of power. Some in the crowd called for then-Vice President Mike Pence — the constitutionally designated presiding officer at the joint session of Congress convened to certify Joe Biden’s election victory — to be hanged. Some members of the House and Senate hid, while others fled for their lives. Five people died. Far more, including 140 police officers, were injured.

This article was originally published on Truthdig.com.

What happened on January 6, 2021 has aptly been termed an insurrection — a violent attempt to overturn the results of a democratic election and, in effect, overthrow the government. Since then, an estimated 928 people have been arrested and charged with federal crimes for participating in the attack. Scores have been convicted.

But the man at the center of the insurrection — Donald Trump — remains unindicted. Far from being held to account, Trump has solidified his hold on the Republican Party. The “big lie” that the election was stolen has become an article of faith and a driving force for the neo-fascist movement he embodies and leads, posing an existential threat to the survival of democracy.

In the immediate aftermath of the insurrection, even after Trump was acquitted in his second impeachment trial, it appeared that justice would come quickly for the former president. Even Senate Minority Leader Mitch McConnell, who shamelessly voted for acquittal, predicted a day of reckoning would arrive. In an uncharacteristically impassioned speech on February 13, 2021, McConnell told his colleagues that Trump was “practically and morally responsible for provoking” the assault on the Capitol:

Far from being held to account, Trump has solidified his hold on the Republican Party.

“President Trump is still liable for everything he did,” McConnell declared. “He didn’t get away with anything. Yet. Yet. We have a criminal justice system in this country. We have civil litigation. And former [presidents] are not immune from being accountable by either one.”

It was the second “yet” that got to me then, and that lingers still.

To be sure, Trump has been sued civilly many times — most notably, by New York Attorney General Letitia James in a massive bank and insurance fraud filing unrelated to the insurrection — but we’re still waiting for the criminal justice system to drop the hammer.

This isn’t to say that the justice system has been quiet. To the contrary, Trump has attracted the attention of multiple criminal grand juries, and the legal vise appears to be closing on several fronts. Still, there are no signs of an imminent indictment.

In part, the holdup may be due to good old-fashioned hand-wringing. Over the past few months, a debate has unfolded among legal scholars and commentators about the wisdom of prosecuting Trump and the potential political and social destabilization an indictment could spark. Referring to the search at Mar-a-Lago, Trump has warned that the country would face “problems … the likes of which perhaps we’ve never seen” if he is indicted.

Plainly, there are inherent risks in breaking new legal ground with the indictment of a former president. Apart from the rather comical arrest in 1872 of President Ulysses S. Grant by a District of Columbia police officer for driving his carriage through the streets of Georgetown at an excessive speed, no American president has ever been charged with a criminal offense. Not Andrew Johnson, not Richard Nixon, not Bill Clinton and not — at least thus far — Trump.

A failed Trump prosecution would be a lose-lose proposition, legally and politically. But the greater risk lies in doing nothing. The rule of law begs for Trump to be held accountable.

One of the central myths of American democracy is the principle that no one is above the law. The myth is drilled into us from our earliest days in social studies classes to the platitudes we still hear every July Fourth. Yet the myth in practice has all too often proven to be just that — a lofty notion that at best applies to ordinary Americans but allows the rich and powerful to do exactly as they please with few adverse consequences.

While it can be tempting to fall into despair at the lack of resolution, there are three good reasons to maintain hope.

One of them is a county-level Georgia district attorney named Fani Willis. This past May, the Fulton County D.A. convened a special grand jury to investigate Trump and others for trying to alter the state’s 2020 election results. In an interview with The Washington Post in September, Willis said her office had examined about “65% of the dozens of witnesses” she wants to question:

A failed Trump prosecution would be a lose-lose proposition, legally and politically. But the greater risk lies in doing nothing.

The D.A.’s witness list is impressive. In June, Georgia Secretary of State Brad Raffensperger, whom Trump pressured to “find” an additional “11780 votes,” took the stand. Two months later, she grilled Rudi Giuliani and attorney John Eastman, a former law school dean and clerk for Supreme Court Justice Clarence Thomas who is generally credited with devising the legal framework for Trump’s attempted coup d’état.

And Willis remains determined to move forward, waging dogged legal battles with Sen. Lindsey Graham attorney Sidney Powell and Trump’s last chief of staff, Mark Meadows to compel them to take the oath, as well.

Willis also told the Post, “If indicted and convicted, people are facing prison sentences.” The decision to subpoena or bring charges against Trump, she added, will be made “late this fall.”

Unfortunately, under Georgia law, special grand juries are investigatory only. They cannot return indictments. To charge Trump or anyone else with state crimes, Willis will have to complete her special inquiry and open a regular grand jury, a process that would likely bleed over into 2023.

A second front is active in New York City, where the Trump Organization is currently on trial for running an alleged 15-year conspiracy to commit tax fraud. In August, Allen Weisselberg, the company’s chief financial officer, pleaded guilty to the same charges. Under the terms of his plea bargain, Weisselberg will serve five months in jail instead of a long prison term. He will also testify as the prosecution’s star witness.

If the Trump Organization is found guilty, it could face stiff financial penalties. But the case has nothing to do with Trump’s conduct as president, and in any event, Trump personally has not been indicted. In April, Manhattan District Attorney Alvin Bragg, who is in charge of the prosecution, opted to suspend a grand jury probe against Trump himself. A win against Trump’s company, however, could prompt Bragg to reopen the probe.

Then there are the ongoing (and accelerating) investigations of Trump at the federal level.

A grand jury is investigating Trump for absconding from the Oval Office with a trove of classified and top-secret documents and stashing them at his Mar-a-Lago beach and golf resort in Palm Beach, Florida — potentially violating a section of the Espionage Act and two other federal criminal statutes that prohibit the concealment or removal of federal records, and the destruction, mutilation or alteration of records to obstruct a federal investigation. The statutes prescribe punishments ranging from three to 20 years in prison.

According to The Washington Post, some of the documents found at Mar-a-Lago contain sensitive information on Iran’s missile program and U.S. intel on China. It’s hard to imagine any legitimate purpose Trump had for taking and retaining such items.

However, progress in the investigation has been slowed by a set of arguably incompetent rulings issued by U.S. District Court Judge Aileen Mercedes Cannon, including one appointing a special master to review the Mar-a-Lago search. A 41-year-old with no trial experience as a lawyer but enthusiastically endorsed by the Federalist Society, Cannon was nominated to the bench by Trump and confirmed (with some Democratic votes) by McConnell’s lame-duck Republican-controlled Senate on November 13, 2020.

A second federal grand jury is reportedly examining Trump’s part in the plan to create fake slates of electors in seven swing states. The federal probe overlaps with Willis’ investigation, but is even broader. A third federal grand jury is looking into the fundraising practices of Trump’s Save America leadership PAC during the last election.

Most critically of all, the Department of Justice has expanded its inquiry into the insurrection to include Trump’s involvement in the attack and the possibility of charging him and other high-ranking aides with seditious conspiracy, incitement of insurrection and obstruction of Congress:

Delay is often Trump’s preferred legal strategy.

For the time being, however, the DOJ is focused on the rioters who physically breached the Capitol, and in particular, the Oath Keepers militia group. Five members of the group are on trial in Washington, D.C., for seditious conspiracy. The case is expected to conclude later this month. Should the DOJ prevail, the prospects of bringing similar charges against Trump could improve significantly.

Finally, there are the hearings conducted by the House select committee investigating the Jan. 6 attack. In a historic step taken on October 21, the committee issued a subpoena to Trump, directing him to appear for questioning on Nov. 14, either in person or via video link. Trump has boasted that he might comply if his appearance is broadcast live. More likely, he will fight the subpoena in court to avoid committing perjury or taking the Fifth, hoping the panel will be disbanded in January if the GOP takes over the House in the midterm elections. Delay is often Trump’s preferred legal strategy.

Until the committee is dissolved, it will have the option of referring Trump to the DOJ for prosecution, as it did with Steve Bannon, who was subsequently tried and convicted of contempt of Congress, and sentenced to serve four months in jail, pending resolution of his appeal. But such referrals are non-binding, and there is no assurance the DOJ would heed a Trump referral. The final decision would be up to Attorney General Merrick Garland.

Garland, Willis and Bragg — the names sound like the partners of a high-profile law office — have a historic opportunity to breathe some much-needed life into the embattled but bedrock American ideal of equal treatment under the law. They must act, and the sooner the better. What’s left of our tattered and very imperfect democracy hangs in the balance.