Long Live the Kings

For years, LeBron James has been talking about wanting to play professional basketball with his son in order to become the first father-son duo in NBA history to play for the same team at the same time. As recently as the top of last year, it seemed improbable since his oldest son, Bronny, was still in high school and, while a consensus four-star recruit, not projected to be a one-and-done lottery pick as he headed into his freshman year at USC. It seemed even less probable when, this time last year, Bronny collapsed from a heart attack during a USC practice session. It seemed less probable, still, when, just a few months ago, Bronny ended his freshman year at USC averaging 4.8 points per game and entered the NBA Draft Combine as the 98th ranked prospect. But, after the Combine, he happened to climb 44 spots to the 54th ranking, suddenly within reach of selection by the Los Angeles Lakers who had the 55th draft pick. Then, James’s good friend and podcast co-host JJ Redick was suddenly hired as the new Lakers head coach. And, then, reports surfaced of Lebron and Bronny’s agent Rich Paul telling every team except the Lakers that, if they drafted Bronny, he’d play in Australia instead. Needless to say, Bronny was selected as the 55th overall draft pick by the Lakers and will now be playing alongside his dad for the 2024-2025 season.

Despite the obvious maneuvering, both LeBron James and Rich Paul have spent the past month telling everyone that all of this alignment was the result of fortune rather than fame. That what we’ve been witnessing are the machinations of providence rather than power. My point here isn’t about nepotism. As many have pointed out, in a league where very many of its stars are the children of former pros and teams are run like family businesses, that’s not a valid criticism. But they don’t call him King James for nothing. LeBron is the most powerful player in the NBA by far. What he and Rich Paul accomplished by leveraging their respective skill sets was masterful. My point is about how unambiguous power like this operates. How it both imposes and masks itself. How it moves as forcefully as possible while endeavoring to convince everyone that nothing extraordinary is happening at all.

The Supreme Court did the same when it ruled last week in Trump v. United States that the President has absolute immunity for any criminal acts committed while acting under “exclusive constitutional authority.” The Court admitted that such criminal acts happen to include the criminal allegations against Donald Trump - namely, attempting to enlist the Vice President as well as the Justice Department in the plot to overturn the Presidential election. The Court maintained that its decision really wasn’t a massive expansion of power since “the President enjoys no immunity for his unofficial acts, and not everything the President does is official”…..even though it offered little guidance about whether such unofficial acts actually exist. This analysis of the nature of Presidential power was met with outrage and panic in the media and, ultimately, the general public about the onslaught of fascism. Two popular platforms in legal commentary - Slate’s “Jurisprudence” blog and the Strict Scrutiny podcast - both concluded that the decision elevated the presidency to a king-like status high above the other branches in violation of the principles of representative government.

But power grabs like this don’t come out of thin air. There’s always a precedent for the allegedly unprecedented. In 1899, the Supreme Court established sovereign immunity, making it impossible to sue the federal government for legal wrongs unless it agrees to be sued. You can guess how often that happens (not never, but not often). Yet this fact of American governance has been largely taken for granted as practical, logical, and important to the effective functioning of government for the past 125 years. It is because of sovereign immunity that the government remains protected from all charges of culpability in regards to the institution of slavery, but retains an absolute right to kill, eliminate rights, and place entire categories of people beyond the reach of redress. As a general matter, we live under a principle of sovereign immunity that comes from the English common law maxim rex non potest peccare, which literally translates to “the king can do no wrong.” Democracy already operates in the context of a normative fascism that many of the legal scholars now ringing the alarm about presidential immunity regard as necessary to the preservation of social stability.

So, the Office of the President may be more unabashedly criminal than it was before and conservatives may be running the table as those who are both powerful and principled tend to do, but the tasks before those of us who work on the side of the oppressed are really the same as they always were.