You're Not Exempt from the End
The eye of the storm passes, and you will be back in the tempest
Yesterday, I counseled hope. Today, I discuss the stakes.
A trailer for World War Z, the Brad Pitt vehicle loosely adapted from Max Brooks’s novel of the same name, contains a line that’s stayed with me, in the ways that fragments of culture cling to your mind the way burrs stick to a sock. In the trailer, Pitt is displaying the usual reluctance to undertake the Hero’s Journey, citing his obligations to keep his family safe, when a leading military commander brings him up short: “Don’t pretend your family is exempt when we talk about the end of humanity.”
I don’t think this line made it into the final cut of the film, but that’s irrelevant. It stuck regardless because it’s such a precise skewering of why narrow-minded self-interest can be self-defeating. Yes, the circles of our moral imagination mean that our family, friends, and so on loom larger than the circle of, say, the species or the yet unborn. But ultimately a calamity that befalls a larger circle encompassing our own private lives will affect our little bands as well. To pretend otherwise is to mistake familiarity for security. In some circumstances, self-interest requires not narrow grasping but bigger thinking.
I have thought about this line a lot recently because I wish John Roberts had ever considered it. The decision in Trump vs. United States, with its sudden expansion of presidential immunity, has left the constitutional order reeling. Forget President Ford’s speech on the occasion of Nixon’s resignation. Our long national nightmare is just beginning. A president who is untouchable by the laws is a president who cannot be constrained by the mechanisms we have taken for granted.
Much has been said about Justice Sotomayor’s dissent, with its clear warnings of how a bad actor could abuse the privileges invented by the Court’s majority. If anything, she has understated the potential damage. The availability heuristic means the events of January 6 currently dominate the discourse regarding what could be done by a president willing to play hardball with the new Constitution. Yet this overlooks the larger potential damages. If the president cannot be bound by law, then even the text of the Constitution cannot be enforced against the president. If there is no punishment, what prevents abuse?
Here, I think the popular understanding of Richard Nixon’s presidency plays a role in even how leading jurists might underestimate the potential for executive abuse. Quips like “it wasn’t the crime, it was the cover-up” obscure that the Watergate break-in was not just a one-off occurrence but part of a larger set of plans to rig the 1972 election using the power of the federal government, particularly its law-enforcement and intelligence agencies. And the break-in was not the sum of the “White House horrors”, as Nixon’s attorney general, John Mitchell, called them. The Nixon administration persecuted its enemies, including conducting a burglary into the psychiatrist of Daniel Ellsberg, and drew up plans to do much worse. The second term would have seen a consolidation of such efforts. For all the recent vogue regarding the “weaponization” of the federal government, we overlook the clear attempts to do that—attempts stopped only by good luck, not constitutional mechanisms—that have already taken place.
Oliver Wendell Holmes, Jr., posited that jurists and lawmakers should consider what a “bad man” would do under a given set of laws. Imagine someone without a conscience who responds only to the threat of punishment, and then see what laws might bind or dissuade him from those actions. This viewpoint looks markedly different from an assumption that people will mostly incline toward doing what is right, obeying internal and social restraints. And recent events have shown that it is no theoretical possibility that an occupant of the Oval Office will act according to such a calculus.
I return to the World War Z line to think about this. What makes Chief Justice John Roberts, or other participants in the extension of Trumpian power, think they are exempt from the end of the constitutional order as we have known it? Some have suggested that the Court is attempting three-dimensional chess—setting itself up as the arbiter of what would and would not be prosecutable offenses based on its hazy distinction between “official” and “unofficial” acts. Such an attempt seems too clever by half. The forces unleashed by vague promises of immunity, coupled with the now clearly powerful pardon power, are unlikely to be stopped by judicial review. Ask the Cherokee how much enforcement power the Supreme Court has had against actors determined to ignore them.
Defeatism is surrender. Minimizing the stakes, however, is no better. There remain options for action, but they are wasting assets. And it is wise to consider the range of possibilities before they happen. Yet I admit to some pessimism that any alarms will be dismissed as alarmism. To quote a line that did make it into World War Z: “Most people don't believe something can happen until it already has. That's not stupidity or weakness, that's just human nature.”