‘E tiquette is a pact,” writes New York Times critic Wesley Morris in a brilliant recent reflection on the show Curb Your Enthusiasm. “In a functional society, it’s also an offering of goodness, decency, forbearance and respect, a flavor of the social contract, in which we all pay a small personal freedom tax so that everyone feels accommodated.”

This “social contract” involves all the things we do, not because a law or rule directs us, but because these behaviors are necessary for society to function. Call them “courtesy” or “norms” or “etiquette” or “customs” or “mores” — they are the unwritten rules that lubricate the political and social machine, allowing people of different opinions, backgrounds, and incentives to coexist. (As Morris notes, the genius of Curb Your Enthusiasm is Larry David’s curmudgeonly ability to dismantle and examine our ideas of etiquette. Why do we tip? How many buttons are you allowed to push in an elevator? Should you pick up a prostitute in order to use the carpool lane?)

But as we have seen in the past few years, our government breaks down when politicians ignore the unwritten rules. Much of elections and lawmaking is based on tradition and custom. Yet the government can’t rely on the honor system when many of our leaders are so thoroughly dishonorable.

That dishonor has now landed former president Donald Trump at the center of a case before the U.S. Supreme Court: The justices must figure out when a president can be held criminally liable for actions that took place during his presidency. The two extreme positions — that a president is completely legally immune for all actions he takes during his time in office or that all of his actions are subject to criminal review — are equally absurd, so the Court must now decide where the line is drawn. Because of Trump’s unwillingness to accept (or lack of knowledge of) the traditional concept of the peaceful transfer of power, the justices must now write down the unwritten rules.

During the April 25 hearing on Trump’s immunity case, several of the justices acknowledged that there is a line between “official” and “unofficial” acts, with the latter being subject to criminal prosecution. But they are going to struggle to figure out where that line is. Previously, we never needed written guidelines on how to handle a president who tried for months to overturn a popular election or who attempted to shake down a foreign leader for dirt on a political opponent. But now we do.

America’s Founding Fathers anticipated that scoundrels might one day occupy the presidency. James Madison acknowledged in Federalist No. 10 that “enlightened statesmen will not always be at the helm.” But the constitutional checks on errant presidents’ actions — congressional and judicial oversight, impeachment — deal primarily with their public acts. And if the president was truly terrible, voters would vote him out next time. Right?

But the Trump case falls through the cracks between all these checks. The election was already held, and Trump lost — but he was trying to overturn it. And impeachment was difficult because it was within two weeks of Joe Biden’s inauguration. (Not to mention that some of the senators voting on his impeachment were actually complicit in January 6, so they were effectively voting on their own guilt or innocence in the final impeachment trial.)

So now all the unwritten things we have normally chalked up to tradition — the peaceful transfer of power, the idea that a vice president can’t decline to count state electors, respect for law enforcement and the court system, etc. — are no longer taken for granted. Because of one sore loser, they now have to be spelled out by an unelected court rather than by the lawmaking branch. And given the Supreme Court’s inability to see into the future, that is going to be almost impossible to do.

There is a famous Saturday Night Live sketch in which NBC anchor Tom Brokaw (played by Dana Carvey) has to sit down and pre-record some possible news stories that might happen while he is on vacation in Barbados. Brokaw reads through a number of things that could happen to former President Gerald Ford: being chopped to pieces by the propeller of a small plane, overdosing on crack cocaine, getting strangled by the reanimated corpse of Richard Nixon, and so on. (When he objects to reading a line speculating that Ford was eaten by wolves, the producer tells Brokaw, “Taft was.”)

In effect, the Supreme Court now has to imagine such hypothetical acts by a president and decide whether they would fall into the “criminal” bucket or the “just doing his job” bucket. Is replacing your attorney general with someone who will help you overturn an election an official act, or is it criminal mischief? What if, in the name of “election integrity,” the sitting president sends the military out to police polling places in states where he doesn’t do as well?

As with any position on a major issue, the pro-Trump contingent should also consider the ramifications of broad presidential immunity when the other party is in power — as is the case today. If presidents can do whatever they want without legal ramifications, what’s to stop Joe Biden, citing what he and his party see as Trump’s threat to democracy, from canceling the 2024 election to save the republic? Or let’s say the election takes place — does Vice President Kamala Harris get to pick which electors she’s willing to accept?

After last month’s immunity hearing, many progressives and some NeverTrumpers were upset with the justices’ taking their time to explore the outer limits of each side’s arguments, thinking that, say, Justice Samuel Alito was laying the groundwork for Trump to skate. But Justice Neil Gorsuch noted that such poking and prodding was necessary because they were writing an opinion “for the ages.”

And that broader opinion could mean protecting ex-president Joe Biden from President Redux Donald Trump as much as it means protecting Trump from special counsel Jack Smith. Now that they have to envision all the possible contingencies, they must speculate as to what might be a private versus public act.

The idea that we need rules rather than custom to govern everyday interactions and transactions is one typically associated with the Left. It is progressives who prescribe laws attempting to regulate private interactions — just look at liberal-run college campuses, which now have infrastructure set up to reeducate students who engage in wrongthink and which mandate written contracts to ensure that each romantic interaction is fully consensual. When etiquette wanes and the holes in our interactions are exposed, they are filled with more illiberal laws meant to teach us how we should behave.

But it is now Trump who is forcing us to litigate the commonplace, and this litigation of civic etiquette is far more dire and less entertaining than a Larry David rant. If only Emily Post had written a manual on the peaceful transition of power.