No one is above the law. That’s a familiar axiom of American life, and it’s often been bent by the power of wealth and those possessing a wealth of power, but it has never been tested as it is being tested now. If it breaks, then something fundamental to the country’s meaning and function breaks, and repair will not be easy.
But as far as the Republican party and its leading candidate for the presidency, conservative members of the supreme court, and much of the Republican delegation in Congress – that is, parts of all three branches of the federal government – are concerned, someone should be above the law and all of the rest of us should be unequal under the law. It’s part of their larger commitment to inequality as law and culture.
If the person above the law is also the most powerful person in the nation, then this nation becomes exactly what the American Revolution and the constitution were intended to escape and prevent: a monarchy. This week the Colorado supreme court found that the 14th amendment’s provision that anyone who, while under oath to defend the constitution, “shall have engaged in insurrection or rebellion” against it can’t hold office again applies to Donald Trump. That is a challenge to the US supreme court to apply the law to the man who, in the case of three of those conservatives, appointed them, while a fourth member, Clarence Thomas, is married to a leader of the insurrection in question who has yet to be held accountable for her role.
Legal expert Elie Mystal said in the Nation that he expects the supreme court to overturn this decision designed to “make the Supreme Court look very ugly and partisan when it bends over backward to save Trump and preserve his ability to threaten the country”.
In 2019, in Trump v Vance, the chief justice, John Roberts, delivered the opinion that Trump was not immune from a state court’s demand to see his tax records, citing an 1807 case in which the then president, Thomas Jefferson, claimed to be immune to a subpoena for records. Roberts cited that case when he wrote that no one can “stand exempt from the general provisions of the constitution”, and added that “this Court rejected Nixon’s claim of an absolute privilege”.
Trump himself has routinely claimed that his power as president was absolute and that it granted an immunity from prosecution and accountability that has never ended. He has made it clear that if returned to office he would institute an autocracy in open conflict with the checks and balances of the political system of the United States. In the spring of 2020, when he sought to overrule pandemic restrictions imposed by state governments, he declared in a press conference: “When somebody’s the president of the United States, the authority is total.” It’s not, said legal scholars and governors. But he keeps trying.
A surprising number of pundits said, placidly, that he was running for election in 2020 to avoid accountability for the crimes committed during his first term. That someone should want to sit atop the system of laws in order to flout the law and keep crime-ing should be shocking – and situations that are both shocking and unsurprising have been a constant of the last several years.
The mainstream media have too often normalized or downplayed outrageous, alarming, and criminal conduct in order to deliver news that sounds objective and calm, apparently because they believe an accurate description of a country in which one party largely remains what it once was while the other has gone berserk and lawless in unprecedented ways would seem partisan. Rightwing media have created a parallel universe in which these crimes didn’t happen or weren’t crimes or both at once.
As a result, we are in a slow-moving insurrection attempt that continues even after many of the participants in the 2021 coup attempt face criminal and civil charges for their acts. If Trump is re-elected, that insurrection will have succeeded after all.
The most equivalent event in US history is the civil war, in which a number of states and political leaders broke away from the Republic and waged war on it, in defense of the radical inequality that was slavery. That war, when the Union side eventually defeated the Confederacy, led to the 14th amendment. And that amendment, this week, led to Colorado’s state supreme court ruling that Trump should not appear on the ballot in that state.
The US supreme court, in addition to reviewing the Colorado decision, is deciding another case about Trump – whether he has presidential immunity from prosecution in the trial charging him with, as prosecutor Jack Smith put it, “conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding”.
All these facts are well known. But what underlies this unprecedented situation is something essential to the contemporary Republican party: a passionate devotion to inequality. Republicans have sought to disfranchise voters who are likely to vote against them and to undermine the systems set up to protect elections from corruption. They’ve sought to give corporations, including the fossil fuel industry and the gun industry, immunity from accountability as both climate change and gun deaths devastate the nation, as well as to liberate dark money to dominate politics.
The legislation and legal cases they have pursued makes women unequal to men by overturning the bodily autonomy necessary to make women free and equal participants in society. Having overturned abortion rights in their pliant supreme court, and launched a new era of persecution of both pregnant people and medical providers in the states they dominate, Republicans are now threatening to overturn marriage equality.
Marriage equality threatens conservatives not only by making queer couples equal to straight couples, but by establishing that marriage is a freely negotiated relationship between equals, a blow to patriarchal marriage’s demand that wives submit to husbands. Some Republicans, including the new house speaker, also aspire to eliminate no-fault divorce, which would trap unhappy couples in general and abused women in particular.
With their support for Muslim bans and their attacks on immigrants, affirmative action and legislation protecting minority rights, and on first amendment rights to free speech and protest, conservatives have sought to return this country to the inequality that has been increasingly overcome in recent decades. It is in fact exactly this equality that they have fought against, with fury, in recent decades. Additionally, in 2022, five Republican congressmen, including then speaker of the House Kevin McCarthy, ignored congressional subpoenas from the January 6 committee, demonstrating that they considered themselves, too, to be above the law.
At the end of George Orwell’s Animal Farm, the pigs who have risen to dominate and subjugate the other creatures eliminate six of the seven commandments they agreed upon in founding their little republic. And they modify the seventh, which declares “all animals are equal”, by adding to it “but some animals are more equal than others”.
Donald Trump has lived his life as though he was more equal than others, and he is backed by a party seeking to make inequality prevail as the law of the land and make that law unable to hold some animals accountable. Whether or not the animals who believe they are more equal than others are rendered equal under the law is in part in the supreme court’s hands now. The rest of it is up to, as it usually is, citizens and their elected representatives.
Rebecca Solnit is a Guardian US columnist. She is the author of Orwell’s Roses and co-editor with Thelma Young Lutunatabua of the climate anthology Not Too Late: Changing the Climate Story from Despair to Possibility
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