What is going on with the far right Supreme Court Justices? Do they still believe in the rule of law? Timothy Snyder’s opinion from 6/12/24, “Thinking about… The Shamans and the Chieftain, as regards modern revenge culture, as explained by Mrs. and Mr. Alito.”

  We have the rule of law so as not to have a culture of revenge.

            For much of human history, it was an eye for an eye, as we read in the Bible.  In a revenge culture, a chieftain decides who is to blame, and the shamans explain how the blood and chaos is just and necessary.

In the Greek tragedies of Aeschylus and Euripides, the grand problem is escaping from reciprocal violence within and among families.  In early discussions of European law, in Icelandic sagas or in the Primary Chronicle of Kyivan Rus, an incipient government regulates revenge, so that it does not continue indefinitely. 

            The rule of law is a solution: if we are all equal subjects of law, then we plead our case before a court, rather than seek after blood.  A constitution, like ours, gives flesh to this conception. It might not be perfect: when it is not, we interpret it in the spirit of equality and non-violence rather than grievance and violence. No one can be above the law, and no one can be the judge in their own case. A constitutional order will depend upon judges who understands these fundamental ideas.

            The other day, Mrs. Alito gave us a good exhibition of revenge culture: “I’m German. I’m German.  My heritage is German.  You come after me, I’m going to give it back to you.  And there will be a way. It doesn’t have to be now. But there will be a way – they will know.”  Those remarks about the delights of revenge related to her choice to fly an insurrectionist flag after Donald Trump’s attempt to overthrow American constitutional order in January 2021.

            The political theory of Trump’s coup attempt is that all that matters is the chieftain.  He does not have to win an election, because the chieftain has the right to rule simply because he is the chieftain.  Requiring Trump to win an election is thus a provocation.  The claim that he should leave office when he loses an election justifies revenge.  And of course retribution is Trump’s platform.

            The legal theory of Trump’s coup attempt, made explicit in argument before the Supreme Court, is that the chieftain is immune to law.  There is magic around the chieftain’s person, such that he need respond only to himself.  The words “presidential immunity” are an incantation directed to people in black robes, summoning them to act as the chieftain’s shamans and confirm his magical status.

Some of the people in black robes, Supreme Court justices, like being shamans. Our shamans are allowed to take bribes from those who support the chieftain, and also allowed to claim that as magicians, people unlike others, they are unaffected by them. If there is any doubt, our shamans tell us, they can be trusted to be judges in their own case.

Shamans thus installed will protect their chieftain, and surround him with their magical aura. Unlike other courts, the Supreme Court can make things up as it goes along, and there has been a good deal of that lately, especially on the part of Mr. Alito. Its members can claim fidelity to the words of the Constitution, then cast all that aside when the chieftain is threatened.

            To contemplate “presidential immunity,” as the shamans are now doing, is to cast aside the rule of law and summon up the ghost of revenge culture.  It is constitutionally ridiculous to say that the person whose responsibility is to execute the laws is above them. 

But the problem is deeper than that.  If any individual is untouched by law, that individual can be expected to shift the entire society back towards revenge.  Trump openly affirms this. His entire platform is retribution — retribution against others for the crime that he himself committed. Once we replace law with revenge, there will be no way to hold him back. And, as we know from experience, revenge culture quickly spreads. As we know from history, it takes on a certain political form.

            Mrs. Alito affirmed revenge culture as a German way of doing things. The context was America’s Reichstag fire, Trump’s attempted coup of January 2021. She flew the insurrectionist flag, defending the chieftain’s Big Lie, and his magical claim to keep power regardless of reality and constitutional order.

The fascist attitude towards law was a modernization of the notion that the chieftain, the shamans, and the enemy who is to be attacked for our own crimes.  For the Nazis, this was the natural order to be restored. Because a constitutional order already existed, part of the restoration of revenge culture had to be carried out by the judges themselves.

Nazi legal theorists argued that politics was a matter of defining the enemy and choosing a side.  The rule of law was to yield to a special sort unrule, in which the chieftain defined politics by choosing an enemy to be blamed for his own crimes. Law would be whatever shielded the chieftain as he divided society, in what the Nazi legal theorists would then describe as a natural struggle for power.

Following the Nazi logic, sitting judges would reverse their previous role in a constitutional order, covering up the transformation with legalistic language. They would accept their role by warping law so that it served the chieftain, defining an us-and-them, rather than protecting everyone.

As a judge put it: “one side or the other is going to win.”

            That was Mr. Alito.

Timothy Snyder – Thinking about… is a reader-supported publication.