The Corrupt Supreme Court is the Logical Result of Neoliberalism

In the fall of 2005, at John Roberts’s confirmation hearing, the future Supreme Court Chief Justice told the Senate, “I believe that no one is above the law under our system, and that includes the president.” Of course, now, in July of 2024, we understand this perspective has either changed or never existed.

It deserves noting, however, that Roberts was responding to a question from Senator Patrick Leahy regarding the infamous torture memos of the George W. Bush Administration. These reprehensible opinions, cooked up by the Justice Department’s Office of Legal Counsel, were designed to validate unthinkable “official actions” in the prosecuting of the illegal War on Terror.

Like many, I was disgusted by the Bush Administration’s behavior and the support it received from both Republicans and Democrats alike, including current president Joe Biden, and citizens of all different ideological stripes. For any discerning person, it was not just counterproductive and strategically stupid, but immoral and repulsive. How that period of time played out was both predictable and disastrous, leading many of us to see the activities of the powerful in a different light.

It is through this lens that Monday’s monstrous 6-3 Supreme Court decision in Trump v. United States begins to make some semblance of sense.

Roberts’s change of heart isn’t surprising. After a while, any notion of ideological consistency among the powerful fades and gives way to the startling but clarifying reality that power is a metamorphic thing and willing and capable of changing based on circumstances. This helps, of course, in also understanding how the GOP has built its brand on promises of “conservatism,” including support of limited government and fiscal responsibility, while advocating an aggressive state (controlled by themselves, of course) that expands into every avenue of life while running up record deficits. In this way, the course of power is less a well-defined arrow than a stream of water always seeking the easiest and most opportune means of flowing downhill.

The truth is, the President of the United States has always been immune from prosecution, in large part due to the immense powers afforded it by Article II. The office depends on its occupant being able to leverage the power of the presidency to commit crimes on behalf of the powerful and the system of capitalism that flows throughout. From the very beginning it has been a gentleman’s agreement that presidents would do whatever was necessary to serve these purposes and be shielded from prosecution or consequences. This means everything from George Washington leading troops against citizens in 1794 to Ronald Reagan’s illegal Iran-Contra scheme to Bush overseeing an unprecedented expansion of U.S. power and associated capitalist markets of the War on Terror throughout his term.

It is notable, however, that the gentleman’s agreement was never explicitly stated or put into law until Monday. Doing so brings a hidden authoritarian feature of our system into full-view and, as a result, encourages its expansion and use.

While it is comforting to view things through a Red/Blue frame, this obscures the true nature of power. Further, to believe that Donald Trump is somehow an aberration rather than the logical evolution of a corrupted and dying system, conceals a pressing and existential rot. Rather than get caught up in personalities and mystification, which America loves more than fireworks on the 4th of July, it is necessary to grasp how power has flown over the rocks supposedly designed to cage it, roaring unencumbered to dominate all of its subjects.

Bush’s War on Terror was the next stage in the evolution of global capitalism after the neoliberal project of the 1990s, a capitalization on the attacks of September 11th that allowed the unleashing of U.S. military might to open new markets and aid international corporations in acquiring necessary resources. The flag-waving and coded terror alerts and general gnashing of the teeth and pulling of hair was all set dressing.

Since the 1970s, the wealthy of America had been aggressively dismantling the New Deal Consensus and replacing it with the Neoliberal Consensus. The latter  eschewed the notion that a government should help its citizenry; instead, the only thing that mattered was the accumulation of wealth and capital by the elite. There is no other way to say this: they won.

The United States, as a host for capitalism, constructed globalism in order to fit the majority of the world into an environment — a womb — conducive for power to accelerate and consolidate. It bypassed the need for social investment, creating necessary precarity. It eliminated borders for the wealthy, giving them carte blanche to exploit so-called “Second” and “Third World Countries” for resources and labor, creating a race to the bottom for regulations and living wages.

In order to make this system work, authoritarianism became a vaunted tool. After fighting World War II in order to defeat fascists, Nazis, and authoritarians, the United States made use of limited dictators and rigged systems in those subjugated nations, creating a surplus of cheap goods for the “First World.” And that “worked” for a time.

Unfortunately, like the aforementioned river, capitalism never stops. It requires more profit and more accumulation. And, eventually, the same authoritarianism that was so useful elsewhere would inevitably come home.

The fear in the United States is earned. We are in certain decline and the progress of the 20th century is being dismantled. Expansions of rights and privileges are fine as long as things within a country are growing, which they most certainly were in the post-war period. When that growth stops, or, rather, when the favor of capitalism shifts, the goodies start to disappear. For many who have worked a job where suddenly the coffee in the break room goes away one day as cutbacks take shape, you might understand. 

Only, in this case, it isn’t Folgers but civil rights and legal protections.

If the next step in neoliberal capitalism’s evolution is to be realized, the same authoritarianism that has held court in other countries will need to be cemented here. If the Court’s rulings – with the overturning of Roe v. Wade, of Chevron deference and the regulatory state, and now presidential immunity – feel to you like something that would happen elsewhere, that’s not a coincidence. Some simply believed the pain would be felt overseas for eternity.

What the system needs now is an authoritarian president backed by an authoritarian system. For years, it was fine to roll back the progress of the 20th century in starts and stops. It was enough to have a political party and leaders who oversaw it while expressing their empathy and assuring us they felt our pain. That is the purpose of the Democratic Party and has been since Bill Clinton and other neoliberals refashioned the party to exist as Reaganism with a human face. Think of it as the good-natured manager telling you how he wishes that a pot of coffee was still waiting for you in the breakroom.

He’s trying.

And he’s sorry.

The mask of authoritarianism must always slip, and it happens when the process has gone on for so long and become so unpopular that the people suffering are growing tired of being told there’s nothing that can be done. This is when demagogues and authoritarians hold court. They offer the pain and abuse of austerity and oppression while supplying the angered masses with scapegoats. This is where the ideologies of religion, nationalism, racism, patriarchal dominance, xenophobia, and homo/transphobia come in handy. You can transfer your anger on to the political enemies of the wealthy and perhaps offset the worst consequences onto them for just a moment.

As has been the case in those Second and Third World countries, what happens is the establishment of a stratified system, with a strict division between the wealthy in those nations and the masses. In exchange for doling out the necessary “discipline” that keeps workers working, for murderously destroying any semblance of “Leftist” resistance, and continuing the cycle of handing resources over to the more powerful nations, a criminal oligarchical class forms. They enjoy unchecked power within their borders and a license to steal and murder, as long as they bend the knee to the larger capitalist system.

America has long been a stratified country struggling to institute democratic reforms to varying degrees of success. For all of the Founders’ poetic aspirations for freedom and equality, the U.S. required the enslavement of millions and a rolling genocide to find its footing. It has been a dance between these authoritarian features and democratic movements and struggles ever since. The post-Civil War Reconstruction era which advanced universal democratic rights farther than they ever had to that point, before being dismantled and giving way to Jim Crow, is a perfect example of this perpetual tension between the forces of good and capital.

At times America has been more expressly authoritarian and, in a few limited instances, has seen a hard-fought movement toward the ideas of freedom and equality. The Court’s decision is the former and it is part of a larger and poisonous capital-driven movement in that direction. It was always heading this way as long as we exchanged solidarity and protection of the environment for cheap goods and relative comfort. And the river will continue to flow, and eventually drown us, until we look inward and recognize that the deal was rotten all along.

Jared Yates Sexton is the author of The Midnight Kingdom: A History of Power, Paranoia, and the Coming Crisis. He co-hosts The Muckrake Podcast and blogs at his Substack, Dispatches From A Collapsing State.