Did the Supreme Court Just Subvert Our System of Government?

On July 1, the Supreme Court ruled that Donald Trump, as President of the United States, enjoys “absolute” immunity for “his core constitutional powers,” but that he “enjoys no immunity for his unofficial acts, and not everything the President does if official.” The ruling has an obvious immediate impact on the upcoming presidential elections. But it also suggests far-reaching questions about political sovereignty, and our system of government.

In this episode, Sam and Damir get together to hash out the theoretical implications of the Court’s ruling. Joining them is Yale Law professor and friend of the pod Samuel Moyn. Moyn argues that the Court’s decision was as much a product of “comparative risk assessment” of our current and near-future political situation, as it was a theoretical statement about our political system. Damir pushes on the question of the meaning of sovereignty, and what immunity implies in terms of the limits of presidential power. Sam sums up the decision as having reached “the limits of business as usual.”

In the bonus section for paid subscribers, the discussion strikes a philosophical note. Sam describes his views about the “Platonic” and “prophetic” sources of law, Damir asks whether Thomas Hobbes is still relevant, and Moyn explains his idea of “collective self-creation.” Law, politics, philosophy, and prophecy — this episode is packed with the drama of our time.

Required Reading

• Trump v. United States, the Supreme Court Immunity Ruling (supremecourt.gov).

• Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge).

• Eric Nelson, The Royalist Revolution: Monarchy and the American Founding (Harvard).

• “Broad Reflections on Trump v. United States,” by Jack Goldsmith (Lawfare).

• Plato, Euthyphro (Internet Classics Archive).

• Summary of the Kelsen-Schmitt debate (YouTube).

This post is part of our collaboration with the University of Pittsburgh’s Center for Governance and Markets.

Wisdom of Crowds is a platform challenging premises and understanding first principles on politics and culture. Join us!