I have written this piece for Slate. It begins:

Is the Supreme Court obtuse or disingenuous? In its awful immunity ruling on Monday benefiting Donald Trump, the court seems so worried about future threats to democracy that could come from the possibility of bogus future criminal prosecutions of former presidents that it is willing to let a legitimate election subversion prosecution over a current threat against democracy go by the wayside….

Months ago, many of us were wondering why the court was dragging its feet, and I even naively suggested the court could behind the scenes be crafting a “grand bargain” where it decided in favor of Trump when Colorado tried to remove him from the ballot to be followed by a quick rejection of immunity, allowing his election subversion trial to move forward before the election. Reality was in fact the opposite. In Monday’s opinion, the court accused the lower courts of moving way too quickly and not engaging in thorough enough legal analysis and factual development. Their message was, hey guys, take it slow, presidential immunity for criminal acts is really important.

The court was right about importance, but not in the way that it thought. We have an ongoing threat to American democracy going on today, right now, in this country. In 2020, the incumbent president tried to overturn the results of a fairly conducted election by trying to manipulate the rules for states to certify their presidential electors and Congress to count those electoral college votes. He did that by making wholly unsubstantiated claims of fraud and irregularities and pressuring Justice Department officials, state election administrators, state legislators, and others to change fair results. When that failed, he aimed and fired his armed supporters at the U.S. Capitol to disrupt the proceedings for certifying the election and block the peaceful transfer of power.

Not only did this presidential candidate not face any legal consequences yet for these actions. He is the frontrunner to be president again, now armed with a new Supreme Court opinion that gives him vastly expanded powers that he would no doubt use if he is put back in office. Who knows what he will do in 2025 with a green light to engage in all kinds of criminal activity?

Tellingly, Chief Justice John Roberts’ majority opinion spends not a moment condemning the violence in the Capitol on January 6 or saying how awful the allegations against Trump are if true, or even celebrating peaceful transitions of power and reaffirming American democracy. It fell to Justices Sonia Sotomayor and Ketanji Brown Jackson to do this in their dissenting opinions in this case, in the Fisher case, and in Trump v. Anderson, the case holding that Colorado could not remove Trump from the ballot on grounds that Trump engaged in insurrection in violation of Section 3 of the Fourteenth Amendment….

Even putting aside the risks for future presidential authoritarianism, Roberts offers no acknowledgement that the court’s fact-intensive slow-moving process has let Donald Trump run out the clock on claims of election subversion in 2020. Roberts surely was aware that this was an implication of the decision and surely the risks to democracy from this decision had to have crossed his mind.

Roberts’ failure to even acknowledge those risks, even if he thought the risks were worth taking because of larger principles at stake of protecting the presidency from bogus prosecutions in the future, is going to be Roberts’ legacy for American democracy. That is, if our democracy survives.