What Hitler’s rise can teach us about today’s Supreme Court

We are witnessing a legal coup

I know there is a lot of noise out there about what is happening with the Supreme Court, I’ve been answer questions in my IG stories because I want to help break it all down in a digestible way for you.

On Monday July 1 the Supreme Court came down with a monumental decision declaring a president has absolute immunity from criminal prosecution for core official acts, the presumption of immunity for all official acts, AND that evidence from official actions can’t even be presented to juries when it’s relevant to the prosecution of the president. 

“The relationship between the president and the people he serves has shifted irrevocably,” Justice Sonia Sotomayor wrote in the liberal dissent. “In every use of official power, the president is now a king above the law.”

“THE PRESIDENT IS NOW A KING ABOVE THE LAW.” 

This is a sentence I never thought I would quote from a Supreme Court decision.

This is relevant, of course, because of what Donald Trump will do if he is once again handed the presidency. He has talked about targeting his political enemies. A friend told me that they are putting together a list of civil servants who are not loyal to Trump (i.e. “enemies of the State”) so they can be doxxed and intimidated out of their jobs. 

There is actually an excellent episode of This American Life the podcast about this that is a must-listen.

Trump’s team  are also trying to brainstorm how to have their own lavender scare. He can do things to help the Saudis who happen to have given his son-in-law $2 billion dollars, without fear of prosecution. There’s the likelihood that he will try to stay in office for a third term - or permanently - and all the treason that will entail. The list goes on and on. 

This Supreme Court decision laid bare the mercenary partisanship of the conservative majority of the court. The lie of originalism which they have used to decimate the rights of us normals has no relevance to this decision. 

In Federalist No. 69, Alexander Hamilton wrote that the president would be "liable to prosecution and punishment in the ordinary course of law," and that this was the distinction between the King of England, who was "sacred and invulnerable," and the president of the United States. Also the Constitution is pretty obvious; Article 1, Section 3 states that even if a president is impeached he "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment.”

The people sitting on the Supreme Court in the conservative majority are not there by happenstance. The seats are political appointments, and the candidates were put up for it by political forces. Five out of the six sitting members of the conservative majority are associated with Leonard Leo (a subject for another Substack), a man who, in short, is the power behind the throne. He was the Vice President of The Federalist Society, a conservative legal advocacy group whose purpose was to place loyal idealogues on the court. He succeeded and is now reaping his rewards. 

You may have seen historian and authoritarianism expert Ruth Ben-Ghiat quoted in many articles about the decision. She told MSNBC “Authoritarianism, at root, is about taking rights away from the many… and allowing the few, the cronies, the oligarchs, the leader, most of all, to have no checks or fewer regulations on their lawlessness.”

The culture war that we are seeing today is pulled from the classic playbook of 20th century authoritarians. “Benito Mussolini framed fascism as a revolution of reaction against the left, against liberal democracy, and against any group that threatened the survival of white Christian civilization.” He made similar arguments to those I see coming out of Turning Point USA today, that all his violence and repression was warranted to achieve a return to social order and tradition. The formula is clear, “disenfranchising and repressing the many to allow the few to exploit the workforce, women’s bodies, the environment, and the economy.”

While I’m someone who regularly opines about the problem of outrage politics in this country, I do think it’s absolutely critical that people understand the gravity of the movement to destroy American democracy. The moment is upon us. And with that, there is a coordinating obligation to get engaged to right this ship. 

When we started writing Democracy in Retrograde we didn’t know exactly how far the Retrograde would take us before publication day. The day is here and the bell has been rung. The urgency of the call to action in the book - to finding your place in civic life, to having conversations about politics, to developing a hope and a belief in change (because it absolutely can happen) - is more urgent than ever. How can we not try?

In The Nation, Elie Mystal wrote: 

If you ever wondered what you’d have done in ancient Rome, when the Roman Republic was shuttered and Augustus Caesar declared himself the “first” citizen of Rome, the answer is: whatever you’re doing right now. It’s what you would have done during the Restoration of King Charles II in England, and what you would have done when Napoleon declared himself emperor of France. This, right here, is how republics die.

And the answer that cries out from the abyss of history is that most people, in real time, don’t care. Republics fall because most citizens are willing to give it away. Most people think that it won’t be that bad to lose the rule of law, and the people who stand to benefit from the ending of republican self-government tell everybody that it will be OK. When the Imperium came to be, the Romans didn’t realize that they were seeing the last form of European self-government for 2,000 years, and the ones who did were largely happy about it. 

In 1923 Hitler led a failed coup called the Beer Hall Putsch. A couple thousand Nazis marched to the city center and four policemen were killed. Hitler was arrested, charged and convicted of treason, and served 8 months in prison. It was during this time he wrote Mein Kampf and changed his strategy from rebellion to legal coup. According to Historian Timothy W. Ryback, “Hitler’s hatred of parliamentary democracy, even more than his hatred of Jews, was central to his identity.”

In 1932 Germany was a democracy and there was an election. Hitler toned down his usual rhetoric to run a campaign focused on bridging the divides and returning to better times. He even put out a podcast, or the olden days version of one, a phonograph album. The people didn’t vote for a genocidal maniac, they voted for someone they thought would benefit them and protect them from who they feared. The Nazi party won the most seats in Parliament (39%) but not the majority, and it was only after extensive negotiations that Hitler was appointed chancellor. 

Then, a mere four weeks after Hitler was named chancellor, there was a fire in the parliament and Hitler said, “the communists did it!” (‘communists’ if you know what I mean). This served as the necessary pretext to get the president to declare a state of emergency suspending civil liberties and legitimizing use of force against ‘communists.’ Once Hitler held emergency powers he was able to purge political opponents and silence dissent. He then got the German Parliament to pass the Enabling Act which centralized power, allowing the chancellor and cabinet to make laws and allowing the chancellor to override rights prescribed by the constitution.

Within two months of Hitler’s election in 1933, Dachau concentration camp was set up for political prisoners and perceived enemies of the state. It did not start with the imprisonment of the Jews and gays and Romani and more - it just ended with it. 

Historian Timothy W. Ryback’s has a new book, “Takeover: Hitler’s Final Rise to Power” in which he shows how Hitler’s rise was not on his own but rather it was fueled by his enablers. 

All the “major players thought they could find some ulterior advantage in managing him. Each was sure that, after the passing of a brief storm cloud, so obviously overloaded that it had to expend itself, they would emerge in possession of power. The corporate bosses thought that, if you looked past the strutting and the performative antisemitism, you had someone who would protect your money. Communist ideologues thought that, if you peered deeply enough into the strutting and the performative antisemitism, you could spy the pattern of a popular revolution. The decent right thought that he was too obviously deranged to remain in power long, and the decent left, tempered by earlier fights against different enemies, thought that, if they forcibly stuck to the rule of law, then the law would somehow by itself entrap a lawless leader. In a now familiar paradox, the rational forces stuck to magical thinking, while the irrational ones were more logical, parsing the brute equations of power. And so the storm never passed. In a way, it still has not.”

The parallels to today are strong. The corporate bosses have been given the overturning of the Chevron doctrine in exchange for their fealty to Trump. The evangelicals were giving the overturning of Dobbs. The Republican leadership believed they were getting someone who would help them win elections. (Though many of those establishment Republicans have already lost their jobs). The media was given lots of clicks and views, and rightwing media and the associated advertisers have grown by leaps and bounds because of Trump. 

What we saw in 2020 was the dress rehearsal - it was our Beer Hall Putsch. The immunity decision is bad but it is not the Enabling Act. Trump is not yet president and Republicans do not control the Congress. What we are seeing now is the start of the legal coup - we are in the midst of it, but we can stop it. The immunity decision is meaningless if we don’t have a maniacal despot in office. 

It feels a little bit like yelling from far deep in a well, where the conditions feel so extreme that I’m not sure anyone can hear me. And YET - we must. And we can. We have an election coming up where we have the chance to take back control of the government and to give ourselves some time to rebuild a party that gives people hope, inspiration and meaning. We can and we will do both. 

In Democracy in Retrograde we try to take your hopelessness and channel that into civic engagement that is authentic and sustainable for you. My political philosophy is that a rising tide lifts all boats, but that tide only rises with thousands of raindrops. It requires all of us to do a little. 

And just a reminder that Democracy in Retrograde is available at Amazon, Target, Bookshop and anywhere you get your books! Thank you for supporting my work and for pre-ordering the book - it means a lot.