Should Biden Arrest the Conservative Supreme Court Justices?

They just said he could. So maybe he should.

The six robed Chrisotfascist rulers of our country, in their infinite wisdom, declared yesterday that presidents are immune from prosecution if they are acting in an official capacity. What this means exactly no one is sure, but the goal seems to be to make sure that President Donald Trump is not convicted for attempting a coup which there’s every reason to believe many of the conservative justices supported.

Presidents appear to now have the authority to assassinate political opponents. The right wing justices have given Democratic president Joe Biden the authority to arrest them without charge and send them to an undisclosed site (say, Guantanamo Bay) for however long he wishes. This is the constitutional order now.

Since the justices have given Joe Biden that power, maybe he should use it. While he’s at it, he can also arrest all the members of the House and Senate who participated in or advanced the insurrection. He should also remove local officials—governors, members of state houses—who aided the insurrection.

The constitution specifically prohibits those who engage in insurrection from holding civil office. That now includes the Supreme Court justices who have attempted to immunize Trump from prosecution for insurrection. It is obviously within the core duties of the president to remove insurrectionists from office, and the Supreme Court has ruled that the president cannot be prosecuted for anything he does in pursuit of his core duties.

So, yeah, arrest them all. Including, of course, Trump, and all his allies. Lock them up, throw away the key, and get down to business passing the priorities of the American people through the chambers now controlled by overwhelming Democratic majorities and a Democratic judiciary. Guarantee abortion rights. Enfranchise the District of Columbia. Pass the John Lewis voting rights bill. Outlaw partisan gerrymanders. Reinstate the Voting Rights Act. Pass gun control. Overthrow Citizens United. Raise the minimum wage. Reinstate the expanded child tax credit. Erase student debt. Outlaw right to work.

The Supreme Court says this is legal; the Constitution is clear about what you should do with insurrectionists. They have given Biden dictatorial power to root out insurrectionists. Why shouldn’t he use it?

Of course, as he reiterated in remarks following the Supreme Court decision,Biden would never do this. Among other things, he’d worry about pushback from those within his own party. He’d worry about electoral consequences. But most of all, he’d just think it was wrong. When they go low, we go, etc. etc. Biden believes in democracy. Even if he’s granted dictatorial power, he’s not going to want to use it. He’s even refused to consistently say that the current court is illegitimate. I don’t think he’s said anything at all about the egregious evidence of Clarence Thomas’ gifts from billionaires.

In some sense, the fact that everyone knows Biden would never seize vast dictatorial power to eliminate his political enemies is good. You want the president to respect norms; you want the president to be reluctant to turn himself into a dictator. You don’t want a president who imprisons political opponents. At least in theory.

In practice, though, Biden’s well-known decency (in this respect, if not in his treatment of Gaza) is a huge problem, because it creates perverse incentives for fascists. If the Supreme Court really believed that Biden was the evil threat to democracy that the right claims, they would never have handed him the power to assassinate them, personally. It’s only because the court is certain that Biden would not abuse this power that they are willing to hand such abusive power to Trump. They can knock down constitutional safeguards because they know that Biden will still stay within bounds. Even in this case, where Biden has clear constitutional grounds to protect the constitution from rabid insurrectionists, they know that Biden will not act without bipartisan cover that a fascist GOP will never give him.

Fascists are good at gaming democracy—at mocking and desecrating democratic norms, secure in the knowledge that people who believe in those norms won’t retaliate in kind, even if they have the power to do so, and even if, in some respect, they have the duty to do so. The rogue, fascist court is giving Trump the power to assassinate Biden and his family, and daring Biden to preemptively use the tools they’ve handed him to preempt fascist takeover. They know they can hand Biden a loaded weapon because they know he won’t use it, and that he will hand it over to Trump at the appointed time, even though everyone is aware Trump will then immediately turn that weapon on Biden, and the Constitution, and on all those who oppose him.

Should Biden use his new powers to destroy the christofascist insurrectionist movement once and for all? There are arguments that he should—the Constitution bars insurrectionists from office. There are arguments that he shouldn’t—it would be incredibly divisive, and could end democracy to save it.

Either way, though, the question is moot; he won’t. Which means that we are relying on the fascists never winning another election, and never gaining the power of the presidency, which is now the power of a dictator. Not sure what else there is to say but god help us.