U.S. Senator Ben Cardin

Letters From Ben

July 6, 2024

Worst Fears Realized

Dear Fellow Marylanders,

Days before the United States of America celebrated the 248th anniversary of our Declaration of Independence from a tyrannical British monarchy, our highest court, the Supreme Court of the United States, opened the door to an American monarchy by declaring that presidents have absolute or “presumptive” immunity for official acts.

In the 6-3 Trump v. United States decision, the conservative justices said that unofficial acts did not have similar immunity, but they failed to properly define official vs. unofficial. I fear this leaves us with an unworkable outcome that ultimately will give future presidents license to break the law without any fear of consequences. It literally places former and future presidents “above the law.”

Inexplicably, the Supreme Court also could not clearly state in their decision that inciting an insurrection against the government and encouraging an attack on the U.S. Capitol were not “official acts.” Rather than settle things once and for all, the court punted back to the lower courts to run out the clock before the upcoming election.

Let’s be clear: encouraging and inciting an insurrection are not “core constitutional” duties and should not come with any form of immunity from prosecution – for anyone.

I agree with Justice Sonia Sotomayor’s dissent that this decision “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law … Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law.”

How did we get to this point in history? It’s important to note that the Constitution has not been amended in recent years, despite my strident effort to recognize ratification of the Equal Rights Amendment (ERA). Only the makeup of the Supreme Court has changed.

So let’s work backwards. Just days before President Joe Biden was elected in November 2020, the Senate rushed ahead with a vote on whether to confirm Amy Coney Barrett to the Supreme Court of the United States. Judge Barrett would replace Justice Ruth Bader Ginsburg, who had died that September.

Never before had a justice been confirmed after at least 60 million Americans already had cast their votes for the next president. I was gravely concerned at that time that the rushed and sham process the Senate used to advance Judge Barrett’s nomination would undermine the public’s faith in the independence and legitimacy of the Supreme Court as a fair and impartial body.

If we had abided by Senate precedent, we would have followed the relatively new “McConnell Rule” adopted after the death of Justice Anton Scalia in February 2016. Then, Senate Republicans refused even to hold a hearing on President Obama’s nomination of Judge Merrick Garland for nearly a year because it was “so close to the election.”

While I vehemently disagreed, Mitch McConnell argued at the time that the American people should pick the next president and Senate before considering the next Supreme Court justice.

McConnell himself quickly threw that precedent out the window when the tables were turned, and Justice Ruth Bader Ginsburg passed away, ramming through Justice Coney Barrett’s nomination with a fraction of the time we had for the Garland nomination. The actions of my Republican colleagues did a tragic disservice to Senate, the Supreme Court and the legacy of Justice Ginsburg.

For the record, I voted against the Coney Barrett nomination, as well as Justice Brett Kavanaugh and Justice Neil Gorsuch. Gorsuch was pushed through in the days and weeks after President Trump took office. This was the seat that Merrick Garland should have been considered for a year earlier.

I was not convinced that these three justices nominated by President would administer impartial justice, guarantee equal protection of the law, protect the civil rights of all Americans (especially the most vulnerable), and promote equal justice under the law.

In particular, I worried that these types of conservative, ideological justices would actively work to undermine advances we have made as a society on issues such as women’s rights, reproductive freedom, climate change and environmental protection, gun safety, voting rights, and so much more.

I am sad to say my fears have been realized, as the Supreme Court has now taken a sharp ideological and conservative turn.

The Supreme Court of the United States is supposed to be the last line of defense, protecting the rights of Americans and guaranteeing equal justice under the law for all. The Supreme Court is supposed to defend the Constitution, and should never be the one deliberately taking away the rights of millions of people.

In the two years since the Supreme Court’s Dobbs decision that overturned Roe v. Wade, at least 20 states have passed total or near-total bans on reproductive freedoms in response. The landscape has been totally transformed.

While the previous president takes pride in being responsible for appointing the three justices who helped overturn Roe v. Wade and revoking nearly 50 years of privacy and reproductive rights, the Biden-Harris administration trusts Americans to make health care decisions regarding their own bodies.

The Supreme Court also has put public safety at risk. Last month the Court in Garland v. Cargill struck down the effort to ban “bump stocks.” This deadly device essentially converts a semi-automatic rifle into a machine gun. It has been used in a number of recent mass shootings to kill scores of innocent people. These types of weapons of war have no legitimate civil use.

Last month, the Court held in Loper Bright Enterprises v. Raimondo that it would overturn its landmark 1984 decision of Chevron v. Natural Resources Defense Council. I am deeply troubled by this outcome, which changes the ability of federal agencies to set rules to protect the American public. The ideological right of the Supreme Court has once again set aside decades of precedent at the behest of powerful corporate interests and made a decision that turns back the clock on the ability to protect the public’s health and welfare. This includes keeping our environment clean and combating financial fraud in our markets.

These decisions are yet another reason why the Senate should focus on confirming President Joe Biden’s pending judicial nominations with qualified and diverse nominees who are devoted to the rule of law and upholding the Constitution. The Constitution and not political ideology must by the guiding light for our courts. Congress should also enact legislation to adopt an enforceable code of ethics for Supreme Court Justices to help begin to rebuild the confidence of the American people in the Court. Justices, just like presidents, cannot be seen as above the law.

Before taking the bench for a lifetime appointment, all federal judges, including Supreme Court Justices, take a constitutional oath to support the Constitution. Congress also requires federal judges to take a special judicial oath to “administer justice without respect to persons, and do equal right to the poor and to the rich …” It should not be necessary to say, but current circumstances make it important to emphasize that this sacred oath is not to pledge fealty to one person or one political party, but a pledge of allegiance to the United States of America and the rule of law.

Congress now has obligation as a co-equal branch of government to respond to these Supreme Court decisions. The American people also have an obligation to make their voices heard by participating in our political process, including exercising their First Amendment rights, registering to vote, and voting in the upcoming November elections.

Thank you for your time. Please reply to this email to let me know your thoughts on the recent ideological shift of the Supreme Court, or on any topic. I value your feedback.

In solidarity,

Ben Cardin