Signs of life at the Supreme Court.

This artist sketch depicts Michael Dreeben, counselor to Special Counsel Jack Smith, right, as he argues before the Supreme Court during about whether former President Donald Trump is immune from prosecution in a case charging him with plotting to overturn the results of the 2020 presidential election, on Capitol Hill in Washington, Thursday, April 25, 2024. (Dana Verkouteren via AP))

Is the Supreme Court stirring itself to do what it was established to do, which is to say, act as the last bulwark against governmental encroachment upon the proper functioning of the Constitution? Have they at last taken notice of a hyper-partisan and abusive Department of Justice?

Two current cases suggest that possibility.

The first is Fischer v. United States. The High Court is considering the way in which January 6 defendants are being prosecuted by the Department of Justice. Joseph Fischer, the named appellant in the appeal to the Supreme Court of a lower court ruling, is a proxy for more than 150 individuals who were charged in the wake of the Capitol riot of January 6, 2021.

Fischer, et.al. are charged by DOJ with “obstruction of an official proceeding” under the Sarbanes-Oxley financial crimes law that was passed in the wake of the collapse of Enron in 2001. They face up to 20 years in prison. Fischer argues that the DOJ impermissibly stretched the Sarbanes-Oxley statute to cover a crime it was never supposed to cover so as to maximize the punishment of January 6 defandants.

At least some of the Supremes are taking notice. During oral arguments, Justice Neil Gorsuch asked the solicitor general representing the DOJ, “Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”

That question was intended to call attention to Democratic Congressman Jamaal Brown, who did just that to delay a vote he knew his side was going to lose. Brown was not prosecuted. Gorsuch’s question thus also highlighted the difference in prosecutorial treatment by the DOJ as determined by one’s party affiliation.

In Trump v. United States, the former president asserts immunity for acts taken while in office. The acts in immediate question have to do with Trump’s objections to irregularities that he and many others allege altered the outcome of the 2020 election. The government alleges that Trump’s vociferous objections incited the events of January 6 and that he should therefore be held criminally liable.

As to immunity, DOJ argues that the motivations of the president should determine if those acts are immune, and further asserts that DOJ should have sole discretion to divine presidential motivation. Justice Samuel Alito questions such sweeping DOJ discretion, “…given its history of abusive partisan prosecutions.”

Of apparent concern is the increasing proclivity by a deeply politicized and highly partisan Department of Justice for using its enormous prosecutorial power to corral, stifle and silence political opposition.

Presidents make decisions every day. Motivations for those decisions are varied and complicated and almost never cut and dried. Any decision can be second guessed.

Trump’s lawyers argue that presidents would be effectively paralyzed by the constant fear that such ex post facto second guessing by a politically hostile DOJ could lead to prosecution upon leaving office.

That would gut the presidency.

Based on what we’ve seen at oral arguments, it appears that the Supreme Court has at last taken notice of these very real constitutional concerns.

It’s about time.

Decisions in both cases will come this summer.

Buckle up.