I confess, I didn’t expect the U.S. Supreme Court to give Donald Trump’s Presidential immunity claim as serious a hearing as it did in last week’s oral arguments. Now that I read the transcript, however, I understand “what’s going on here,” to quote my own starting point for ethics analysis. Its focus, or at least the focus of the conservative members of the Court, is appropriate considering the current assault on our system of government by the totalitarian Left as it tries to use the criminal laws, the courts, and partisan prosecutors to prevent the public from throwing them out of office.

Naturally the Left is furious, and is attacking the justices. The attack isn’t based on legal reasoning, but the same tactic progressives and Democrats used to claim that SCOTUS had “stolen” the 2000 election by finally ruling that enough was enough, and that it was time to settle the identity of the leader of the nation and not paralyze the government fighting over an election with a filament thin edge within the margin of statistical error. The Bush v. Gore ruling was an example of one of the core functions of the Supreme Court as it has evolved: stepping in to guide the Constitution and the nation through unanticipated situations the Founders never considered or prepared for. But Democrats attacked Justice Scalia and the other conservative justices for defying their own guiding principles—“textualism” and “originalism,” the idea that the Constitution should not be extrapolated into new areas never anticipated or discussed in the original document. That judicial philosophy is a conservative bulwark against the arrogant and excessive “legislation from the bench” that marked the Warren Court in the Sixties, and to a lesser extent its predecessor in the Seventies, the Burger Court, the latter most infamously in the purely political Roe decision, finding a right to abortion in a document that didn’t hint of such a thing.

After hearing the oral argument in Trump v. U.S. and detecting signs that some of the Justices on the rightish side of the ideological spectrum agreed that some kind of Presidential immunity might be prudent and even essential, the Axis howled. “Two years ago, conservatives relied on a strict interpretation of the Constitution’s text and original meaning to overturn the federal right to abortion. But on Thursday, as they debated whether Trump can be prosecuted for his bid to subvert the 2020 election, they seemed content to engage in a free-form balancing exercise where they weighed competing interests and practical consequences,” whined Politico. “Some critics said the conservative justices — all of whom purport to adhere to an original understanding of the Constitution — appeared to be on the verge of fashioning a legal protection for former presidents based on the justices’ subjective assessment of what’s best for the country and not derived from the nation’s founding document.”

Translation: “The judges we support do this all the time and we think it’s wonderful, but these bad judges can’t do it no matter how much sense it makes because they have made it clear that they generally disapprove of the practice.”

My father would respond to that with his favorite Ralph Waldo Emerson quote:

“A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall.”

Emerson was anticipating the Ethics Incompleteness Principle, which holds that no normative rule, principle or law “works” the way it is supposed to in all circumstances, and when one doesn’t work, the wise approach is to solve the problem without allowing an anomaly or outlier to invalidate a generally valid rule. Similarly, the oft-quoted judicial principle, first coined by Justice Robert H. Jackson in his dissent in a 1949 free-speech case, Terminiello v. Chicago, that the Constitution isn’t a suicide pact springs from the same practical reality.

Jackson disagreed with the absolutist approach to free speech described in William O. Douglas’s majority opinion, and wrote, ”The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Hmmm. Jackson could have been talking about the elite colleges defending pro-Hamas, pro-terrorist student demonstrations that have Jewish students fearing for the safety, couldn’t he?

In Communications Association v. Douds, Chief Justice Fred Vinson cited Jackson, and in 1963, Justice Arthur J. Goldberg borrowed Jackson’s point in Kennedy v. Mendoza-Martinez, noting that there were some situations in which individual rights had to yield to higher national priorities, in this case, national defense. Goldberg wrote, ”The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact.”

The Bill of Rights isn’t involved in the Trump case; the issue is the powers of the President and the ability of the office to do what is, or seems, necessary in the best interests of the nation.

Article II of the Constitution states, “The executive Power shall be vested in a President of the United States of America.” There is no mention of immunity there, but that didn’t stop the Court from declaring a Presidential immunity from civil suits in a 1983 case. It made that call because the office couldn’t function as executive if POTUS was constantly being sued, which earlier, less litigious, more patriotic American citizens would never have considered. Georgia State University law professor Eric Segall, interviewed for the Politico story, agreed that there’s nothing intrinsically wrong with the justices reaching a legal conclusion that lacks direct support in the Constitution, but that the conservatives should not pretend that this isn’t, to some extent, hypocritical. “Do I think there should be some kind of constitutional privilege for the President? Yes, I do. But we have to recognize how atextual that is,” Segall said.

OK, fine, let’s recognize that. Nonetheless, the crucial job of the Supreme Court is to fix problems when the Constitution isn’t working the way it is supposed to. Until the 2016 Post Election Ethics Train Wreck, when the newly assembled Axis of Unethical Conduct decided to pitch the traditions and conventions that had wisely been institutionalized for centuries to allow the Presidency to function, certain political tactics had been assumed to be unthinkable because they would cripple democracy. Impeaching a President just because the opposing party had a majority in Congress was an example. So was a House Speaker setting up a partisan Star Chamber in Congress to build a criminal case against the previous President from the opposing party.

The impetus for Trump’s immunity claim is that for the first time in history, a President and his party are attempting to use the criminal laws to remove a serious political rival, like the USSR, like Red China, like the oft-mentioned “banana republics.”

Now what?

Trump’s lawyer, D. John Sauer, said in oral argument, “The implications of the Court’s decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for… allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?” The answer would have once been aneasy no, as each party and each President acknowledged that to be effective a POTUS must have sufficient leeway and the presumption of good faith to take action in legal gray areas for the preservation of the nation. This consensus has been shattered, however, because the Democrats decided that Donald Trump was special. He uniquely had to be brought down by any means necessary.

Justice Alito asked, “So what about President Franklin D. Roosevelt’s decision to intern Japanese Americans during World War II? Couldn’t that have been charged under 18 U.S.C. 241, conspiracy against civil rights?” With all due respect to the Justice, I have a better FDR example: he deliberately and directly defied Congress, breaking a law, by surreptitiously assisting Russia and Great Britain during World War II while the U.S. was officially neutral…and he probably saved the world from Hitler by doing it.

Then the current Justice Jackson said, incredibly enough,

“[There is] a very legitimate concern about prosecutorial abuse, about future presidents being targeted for things that they have done in office…. But I wonder whether some of it might also be mitigated by the fact that existing administrations have a self-interest in protecting the presidency that they understand that if they go after the former guy, soon they’re going to be the former guy and they will have created precedent that will be problematic.”

Sure, they should think that way, but 21st century Democrats don’t use the Golden Rule, and it’s absurd, even disingenuous, for Biden’s DEI Justice to say this because her President IS going after the “former guy.”

I firmly believe that President Trump’s efforts, misguided, bungled and foolish as they were, to try to freeze the election process on the theory that the 2020 election had been illegally rigged was a legitimate exercise of his official powers in preserving and protecting the Constitution as he deemed necessary.  Such acts should not and cannot safely be prosecuted as criminal. I also firmly believe that the kind of broad immunity Trump is asking the Court to approve would be catastrophic.

Is the Court in ethics zugzwang, where any decision will be irresponsible and a disaster? I hope they are wise enough to pick their way through the perils.

Meanwhile, there should be no confusion over why the Court, and the nation, are facing this crisis.