President Biden and Senate Majority Leader Chuck Schumer have called the Supreme Court “out of control“ and “extreme.” But their efforts to undermine and intimidate the Court are as dangerous to our constitutional system as they are disingenuous, for they represent a monarchal effort to control the Court.
Under Article III of our Constitution, the nation’s “judicial power” is vested in the Supreme Court and lower courts to be established by Congress. In addition to resolving “cases” or “controversies” brought before the Court, since the landmark 1803 case of Marbury v. Madison, it has been understood that power includes the right to declare acts of other departments and state governments unconstitutional. As Chief Justice John Marshall explained in Marbury: “[A] Law repugnant to the Constitution is void.”
Without respect for Article III, Democrats were outraged when the Supreme Court held that the Constitution does not address the issue of abortion and declared it should be decided by the American people through their elected representatives rather than by nine unelected justices. It took no position on the merits of abortions. Then, they complained when the Court banned racial discrimination from college admission policies.
Most recently, they have attacked the Court’s decision to recognize that presidents and former presidents have criminal immunity for their official acts. In reality, the Trump v. United States case is quite consistent with past Supreme Court jurisprudence. Thus, in 1967’s Pierson v. Ray—in an 8-1 decision written by the very Liberal Chief Justice Earl Warren—the Court “recognized the continued validity of the absolute immunity of judges for acts within the judicial role...even when the judge is accused of acting maliciously and corruptly.” In 1980’s Nixon v. Fitzgerald, the Court declared: “The President’s absolute immunity [from civil lawsuits] is a functionally mandated incident of his unique office, rooted in the constitutional tradition of the separation of powers and supported by the Nation’s history.”
The Trump decision that has so outraged President Biden and prominent Democrats did nothing more than affirm that the president and former presidents have the same constitutional immunity from criminal prosecution for their official acts already firmly established for the legislative and judicial branches.
President Biden might want to be careful what he wishes for, as the great personal wealth he and his family have acquired as a result of his government service might quickly vanish if he has to pay for legal representation for criminal “lawfare“ prosecutions by future Republicans. Or, far more seriously, if he faces civil lawsuits from relatives of even a small percentage of the 73,838 Americans killed by fentanyl overdoses in 2022 alone (80% more Americans than were killed in combat during the entire Vietnam War) or raped and/or murdered because Biden failed to see the nation’s immigration laws “faithfully executed“ as required under Article II, Section 3, of the Constitution.
On March 5, 2020, then-Senate Minority Leader Chuck Schumer—surrounded by angry protesters in front of the Supreme Court—declared: “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” Chief Justice John Roberts promptly said that Schumer’s clear threat was both “inappropriate” and “dangerous.”
But what if Senator Schumer had gone a step further and (after President Biden took office) arose on the Senate floor, looked directly into the C-SPAN cameras, and called upon Americans to assassinate conservative justices (so Biden could replace them), as well as calling for President Trump to be assassinated. Is Schumer “above the law” and a “king”? Or could he be prosecuted like any normal citizen for incitement to commit murder?
I ask this question because, in a July 29 Washington Postop-ed article, President Biden attacked the Trump decision as a threat “to America’s democratic institutions.” Biden began with the “profound principle” that “No one is above the law” and called for a constitutional amendment reversing the decision. Biden argued: “If a future president incites a violent mob to storm the Capitol and stop the peaceful transfer of power—like we saw on Jan 6, 2021—there may be no legal consequences.”
Three days later, with support from three-quarters of his Democrat colleagues, Senator Schumer introduced the “No King’s Act,” declaring in Section 2(a)(1): “[N]o person, including any President, is above the law.” As a graduate of Harvard Law School and member of the Senate for more than 25 years, is “King Chuck” truly unaware of the “Speech or Debate Clause” of the Constitution? Or is he hoping that the average American can be easily deceived on the eve of an election?
In reality, neither state nor federal murder laws—nor any other criminal laws—would apply to Senator Schumer’s incitement because Article I, Section 6, Clause 1, of the Constitution provides in part: “[F]or any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place.” Members of Congress are absolutely immune from both criminal prosecution and civil litigation for their official acts. And while one might conclude this makes them “above the law,” in reality, the Constitution is our supreme law, and their protections stem directly from that instrument.
Congress’s own website describes the scope of the Speech or Debate Clause as interpreted by the courts: “[I]t is well established that the Clause serves to secure the independence of the federal legislature by providing Members of Congress and their aides with immunity from criminal prosecutions or civil suits that stem from acts taken within the legislative sphere.” It is true that Article 1, Section 5, Clause 2 of the Constitution gives each House of Congress the power to “expel” members by a two-thirds vote. But—if you exclude southerners expelled during the Civil War—in its entire history, Congress had expelled only two members.
While we are talking about Schumer’s “No Kings Act,” perhaps it should be noted that it grossly violates the Constitution. First of all, it attempts to do by a mere statute what even President Biden recognized required a constitutional amendment. But, perhaps even more outrageous, Section 4(b)(7) provides: “[T]he Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this act...unconstitutional.” Wow!
Chief Justice John Marshall must be turning over in his grave. Who knew that a mere statute could amend the Constitution to deprive the Supreme Court of the power of judicial review?
Presumably, Congress will attach a similar provision to every future law so it can run rampant across our Constitution once the Supreme Court has been neutralized. Why didn’t President Franklin Roosevelt think of this approach when, in 1937, he tried to pack the Supreme Court by adding more members of his choice—a move that outraged both Congress and the American people despite FDR having large Democrat majorities in both houses of Congress.
Based on press accounts, it seems clear that congressional Democrats do not expect this bill to become law. As one Associated Press account put it, “Democrats see the proposals as a warning to the court and an effort that will rally their voting base ahead of the presidential election.” That may work because while FDR’s court-packing scheme was resoundingly rejected by Congress, it appears to have intimidated the Court to the degree that it never again struck down one of FDR’s pet laws.
Professor Turner holds both academic and professional doctorates from the University of Virginia School of Law, where he taught for more than three decades prior to his 2020 retirement. He is currently completing a three-volume study on National Security and the Constitution.
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