‘Justice is Blind’ is the saying indicating that the court treats everyone equally and fairly when you sit inside a courtroom. There is no room for discrimination or unequal treatment. For many, this holds up the notion that the law exists beyond politics or personal slights and ideology. But this is a mistake. Law itself is an administrative expression of political expression codified into a body of rules.
Laws can be unfair, unequal, and unjust. It is our right to protest the law while remaining inside the body of it. But desiring to stay inside the law is not the same as believing or even pretending that the law is a non-political expression. Even in its neutrality, the law is expressing an opinion about neutrality itself, which despite some liberal attempts to extricate ideology from this process is a bit of a myth. Neutrality is political and so is law.
Some will argue that law is simply a tool and the tool cannot mean anything. A common example used on everyday objects is that of a knife. A knife by itself is contentless- it doesn’t have to be a weapon, a vegetable slicer or anything else, it simply is what we make of it. By this definition, law is simply what it is in the eye of the beholder. The assumption of law as merely a tool flattens the ideological relationship between the state and legality encompassing bigger moral questions than merely how the legal tool is applied in certain scenarios.
As Joseph Raz argued in The Ethics of Public Domain the law is not simply about governing a state but encompasses a wider set of demands. Why should ‘law’ as a concept merely be contained to a body of rules in a very particular setting? What about moral laws? natural laws? or other types of laws? Conflating legality and law is a common error in our lexicon and we should be careful to avoid it. For some, it could be considered legality as antithetical to laws in a more philosophical sense. Legality thus must be considered as part of a bigger whole within which we situate ourselves.
There is perhaps a danger of falling into Hume’s infamous is ought gap here. For those not in the know, Hume argues that people oftentimes conflate an ‘is’ (factual) argument for an ‘ought’ (moral) creating a logical fallacy. An easy example would be someone proclaiming ‘America has a higher proportion of people in prison per capita in the world’. Oftentimes used as an ‘ought’ argument highlighting the injustice of the US legal system it is merely an is claim stating a fact about the prison population. In this argument about law vs legality, the danger is conflating the morality of ‘bigger’ laws with the proper enactment of legality.
Thus, when considering this question it is important we sufficiently delineate the differences between alternative types of law. We all have moral laws that we recognise, thus the need to practice tolerance for each other, yet this does not necessarily draw upon the exercise of legality i.e., the interpretation and use of law. This is the difference between function and content. You can disagree with the content of a law because it is unjust but recognise it has been utilised correctly as a law.
But it is not merely recognising the difference between distinctive types of law but also when the law applies. Is the law used in every circumstance or can the law be abrogated under certain circumstances? “Sovereign is he who decides on the exception”. This line from Schmitt, the first from his infamous text Political Theology, is the clearest expression of a legal dogma antithetical to rule by and within the law at all times. For Schmitt, the sovereign must be allowed to go beyond the constitution to defend the political order. After all, the Constitution cannot imagine every circumstance or fill in every gap, instead the sovereign must be given the space to do what is necessary to defend it.
For many, this is dangerous territory. The rule of law surely only functions when everyone is subject to it. If one person breaks the law and gets away with it what is to stop other people? It is a reasonable argument that can only be rebutted with appeals to exceptional circumstances or gaps in the law. But the obvious question and chilling critique remains- once you disengage from the law how can you return to it? Surely lawlessness simply extends outwardly becoming the norm itself as law becomes less functional and less important.
Yet, on the other side of the aisle, we can all easily imagine circumstances where the law is necessarily abridged or even evaded. For instance, during COVID-19, emergency measures had to be taken where law was a secondary concern compared to people’s safety. Another example could be wartime where the use of law and retention of extraordinary power is seen as essential. Few scholars or laymen would truly side with Giorgio Agamben when he admonishes Lincoln for not only maintaining but expanding executive power. Gore Vidal’s vivid historical fiction renders Lincoln a reluctant sovereign using his power because it was necessary rather than desirable.
Therefore not every act of illegality or non-legal action is a bad one. There are good reasons sometimes to act outside of the bounds of the law and there are limits to the law’s imagination. The legalisation of politics is also a dangerous game. If a sovereign believes there is a good chance they will be prosecuted once leaving office this opens a door for all kinds of extra-legal actions. While the Supreme Court has recently argued this would constrain a President’s action, it is also reasonable to consider it may paradoxically make a President more radical in changing the law and acting vindictively outside of it.
“Although the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent. Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.”
This brings our attention to Donald Trump and the Supreme Court’s decision to executive immunity. To call the decision controversial would be somewhat understating the matter. Some see it as the end of the road for a political system grounded in legality opening the door to dictatorship and criminality. But this would be somewhat historically naive ignoring the notion of the Imperial Presidency existing post WW2 and was only really reigned in with the downfall of Richard Nixon. It took gross criminality to check the executive’s privilege which gradually expanded outwardly with few noticing until the final moments. This does not strike me as a unique situation for the United States to be in.
The bigger question is does it give a President complete leeway in their decision-making? Certainly, the breadth of immunity has been strengthened. The President in ‘official acts’ which are the President’s to exercise. The reasoning in part is the fear of an excessive legalisation of politics leading to the President not making decisions out of fear of future prosecution. But surely, judicious use of power is a good thing rather than a state to be avoided? Giving the executive too much leeway in a system which has a historical tendency to take the brake off creates a potentially dangerous precedent.
“When may a former President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches and the public at large, the Court cannot afford to fixate exclusively, or even primarily, on present exigencies. Enduring separation of powers principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office”
Some have argued this opens the door to a ‘Schmittian State’. However, this is a misreading of the judgement and Schmitt himself. Schmitt desired a President thoroughly unleashed from constitutional boundaries. Critiquing Article 48 of the Weimar constitution for not going far enough, Schmitt desired the President to have the freedom to do what it took to ‘protect the constitution’. In this sense, Schmitt would not recognise the ‘waters edge’ that the Supreme Court has at drawing Presidential authority within their prerogative but would demand it widen more broadly outside of Congress.
“Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action. But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United States frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. The immunity the Court has recognized therefore extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.”
The bigger philosophical question facing the United States is what type of polity do they want to be. The legal framework which SCOTUS has set up is not dangerous in the right hands but it could be in the wrong ones. You can argue constitutions should be designed to stop bad actors from taking advantage and I am sympathetic to that claim but surely the bigger priority is not allowing bad actors to take the highest office in the land.
The potential demise of America’s democratic system lies not with SCOTUS but with the citizenry themselves. The same uncomfortable truth was apparent in the demise of Roe vs Wade. Giving such arguments over to the demos it was up to progressives and liberals alike to win on the electoral battleground. Unfortunately, they have not been uniformly successful. People blame SCOTUS but the court merely handing the decision back down to the states did not do anything in of itself.
Now the test of democracy lies with do the American people forgive the Democratic party’s best attempt at self-sabotage by allowing a demented octogenarian to be their candidate for President. The inability of the party to be honest with Biden, the American public and themselves leaves the US on the edge of a second-term Trump presidency. A man who undoubtedly will take advantage of this new more restrictive decision. But when playing the blame game it is important not to forget those who are really responsible… All of us!
I’m a Razian positivist. Of course law is never neutral, but there are good reasons to try to uphold objectivity and the rule of law, even if we can never quite achieve it.
One final comment, Shakespeare had the right of it! My apologies to Katy. David