July the 1st, 2024 goes down in history, along with the Watergate scandal (1972 – 1974) during Richard Nixon’s presidency, as the day the core of the United States of America (USA) democracy was shaken. This is a serious concern to millions of people across the globe suffering the effects of autocratic regimes and have looked up to the USA as a model for justice. The recent presidential immunity ruling by the Supreme Court of the United States of America (SCOTUS) in a case brought by former President Donald Trump, a Republican, is concerning to most US citizens for whom rule of law is an integral part of life; the decision undermines the nation’s long-held principle that no-one is above the law and elevates the office of President to a King/ Queen.
In its 1st July 2024 historic 6 – 3 majority decision that grants absolute immunity to a president for most activities performed as part of their official duties, additionally the verdict grants presumptive immunity “from criminal prosecution for a president’s acts within the outer perimeter of his official responsibility”. We note too, in conducting the official/unofficial inquiry, SCOTUS directs that courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law.
The SCOTUS breaks new and dangerous ground especially in the absence of clarification of what constitutes permissible acts within and on the outer perimeter of the president’s official duties. We go to the SCOTUS for clarification of any legal ambiguity, but in this case the ambiguity has been manufactured by the SCOTUS itself.
Inadvertently, in the absence of clarity of ‘official duties’, the SCOTUS elevates itself while disempowering the other branches of the executive under the cloud of uncertainty. There is also real danger that this will elevate a president to a king or queen that the court itself may be unable to rein in.
Deeply concerning to most liberals is the fact that the SCOTUS encroaches into and by all intent dismantles the long-held principle of equality before the law. Under the ruling, the president is no longer subject to the law he/ she is constitutionally supposed to protect; the President is trusted to make moral and ethical judgement of official responsibilities.
Creating a law free zone around the office of president is a slippery route to a minoritarian rule. Of even greater concern is the partisan nature of the SCOTUS decision, 6 justices all appointed by Republican presidents granted absolute and presumptive immunity to the President, while 3 justices all appointed by Democrats Presidents dissented.
In her dissent, Justice Sonia Sotomayor wrote: “In every use of official power, the President is now a king above the law.” This is a deeply troubling scenario. We have come to understand the relationship between kings/ queens and checks and balances as non-existent.
This latest decision must be deeply concerning to young democracies and all democracy aspiring citizens around the globe. Many Africans who endure the effects of their tyrannical regimes have looked up to the USA and Western allies’ template as realistic alternatives and the best platforms of government by consent.
Every event in life is a learning opportunity. Democracy aspirants who look at the USA and the West as models must now, for their own good, also be looking at ways to reconfigure their institutions to ensure full and long-term protection of the principle of equality before the law.
First lesson to us who have held high and continue to admire US democratic institutions is that they are not without fault. What is apparent after this judgement is that maybe to expect a branch of government made up of limitless tenure presidential appointees without a democratic mandate, that is, an autocratic branch of government, to arbitrate with impartiality on legal matters regardless of personal beliefs, potential outcomes and impact to their appointers is trust gone too far.
How much of what the SCOTUS does is inspired by sole legal understanding and how much by personal beliefs and the desire to preserve relationships with the political elite? It must never be lost to us that despite the vast legal expertise they bring to the SCOTUS, these are people with personal beliefs that influence their views on different subjects and given the chance, those views do play a part in their interpretation of the law.
Questioning how we ensure personal views do not endanger the interests of the state naturally lends us to the consideration of what the safest selection process of supreme court justices would be. When a president appoints a justice to the supreme court, is the appointment based solely on their legal expertise or social values and political views do come into consideration? If they do, how much weight do the social factors and political inclination carry in the justice’s appointment?
We need to have a process that would maintain a good balance and ensure appointed justices owe their allegiance to the state and not the political elite who appoint them to the positions.
The SCOTUS has sadly discarded the foundation of US democracy, the principle of equality before the law and systemic checks and balances of power. Doors have been left wide open for autocracy. It is deeply concerning that the president would be legally expected to protect the law of the land, yet he/ she is not accountable to it. The terms of the court’s ruling provide for the President to potentially do anything with impunity, if it is an official duty. We note that the SCOTUS has not given clarity in what would constitute official duties in acts performed on the outer perimeters of the President’s official responsibilities.
MTHWAKAZI INDEPENDENT 