Roberts's majority backs Trump in finding an expansive presidential immunity

Sotomayor's dissent for the liberals warned of her "fear for our democracy."

The Supreme Court, on a 6-3 partisan vote, ruled on Monday that former president Donald Trump has absolute immunity from criminal prosecution for actions within his “core constitutional powers” and at least a presumption of immunity for any official actions within the “outer perimeter” of his duties.

It is a shocking expansion of presidential power to benefit Trump that transforms the presidency — and, with it, the nation.

Chief Justice John Roberts wrote the court’s decision, making those broad pronouncements in Trump’s challenge to the special counsel’s indictment of the former president for his efforts to overturn the 2020 presidential election. Roberts did so, moreover, with no clear textual support in the Constitution — and a considerable historical record to the contrary.

“[T]he system of separated powers designed by the Framers has always demanded an energetic, independent Executive,” Roberts wrote. “The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.”

Justice Sonia Sotomayor wrote for the Democratic appointees in dissent of the bottom-line result, “The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding,” concluding, “With fear for our democracy, I dissent.”

It was another ruling — to quote Justice Ketanji Brown Jackson’s dissent in this term’s earlier corruption case decision — that “only today’s Court could love.”

The ruling was a fitting, disturbing end to a term in which the court either issued broad, transformative rulings advancing conservative positions backed by Republicans or avoided substantive rulings in which the facts and the law — and popular opinions — more clearly favored the positions of the left or Democrats.

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About infallibility

In a term in which the Supreme Court’s six conservatives overturned a 40-year-old precedent controlling how federal agencies operate and struck down a gun-control measure that both the Trump and Biden administrations agreed on, one line from Roberts’s opinion Monday was particularly galling.

“Our dissenting colleagues exude an impressive infallibility,“ Roberts wrote of Sotomayor and Justices Elena Kagan and Ketanji Brown Jackson.

Is Roberts not aware of his decision on Monday? Is he not aware that its hubris is a key marker of the Roberts court, or does he just not care how it looks to accuse his dissenting colleagues of that?

The immunity decision he wrote on behalf of the conservatives on the court is as weak of a legal document as it is brazen of a political document.

I’ll discuss the legal part, such as it is, but the political reality is that Roberts and the conservatives took repeated steps with their treatment of this case to prevent Trump’s trial in this case before the presidential election. After rejecting Special Counsel Jack Smith’s request to skip over the U.S. Court of Appeals for the D.C. Circuit so the justices could more quickly hear the case, the court granted the case after the D.C. Circuit’s ruling against Trump but then took more than twice as long to reach a ruling once they heard it in April as when Trump needed a quick ruling on the Fourteenth Amendment “insurrection” ballot question.

The only real legal basis for Roberts’s decision is heavy reliance on robust presidential powers with a mangled understanding of separation of powers.

“[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility,” Roberts wrote. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.”

As Sotomayor countered, “The majority relies almost entirely on its view of the danger of intrusion on the Executive Branch, to the exclusion of the other side of the balancing test. Its analysis rests on a questionable conception of the President as incapable of navigating the difficult decisions his job requires while staying within the bounds of the law.”

Applying that new Roberts court-made law to Trump, Roberts concluded that parts of Trump’s indictment based on his efforts attempting to influence the actions of the Justice Department were within those “core” powers, hence, absolute immunity. Trump’s efforts to pressure then-Vice President Mike Pence, the court held, were within the “presumptive” immunity area. As such, Special Counsel Jack Smith could, potentially, rebut that presumption at trial. Exactly how was not clear, but he — apparently — would have to show that such a prosecution would not “pose any dangers of intrusion on the authority and functions of the Executive Branch.”

At the same time, the conservatives sent the case back down for more consideration of the “necessarily factbound analysis” of determining what aspects of Trump’s indictment for his efforts to overturn the 2020 presidential election were “official acts.” These relate to rest of the indictment, including Trump’s efforts to pressure state officials, the fake slates of electors, and Trump’s actions and speech on January 6, 2021.

Roberts’s majority went so far as to block even the introduction of those acts into evidence for other purposes:

If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated.

This final move was a step too far for Justice Amy Coney Barrett, who did not join this part of the decision, making it a 5-4 ruling on this aspect of the decision.

But, she joined the rest of the decision, leaving the three Democratic appointees in dissent. Sotomayor’s dissent for all three of them — which she read from the bench — was harsh about the effects of the ruling and the court’s majority that made it.

Although the public who couldn’t make it to the court on Monday won’t be able to hear Sotomayor’s dissent until the fall when the court turns over its opinion audio to the National Archives, it was a stark end to the year’s issuance of opinions.

Detailing all of the scenarios like the president “[o]rder[ing] the Navy’s Seal Team 6 to assassinate a political rival” from which a president is immune from criminal prosecution under the court’s decision, Sotomayor highlighted the change that has happened:

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded.

For her part, Jackson both joined Sotomayor’s “powerful” dissent and wrote separately “to explain, as succinctly as I can, the theoretical nuts and bolts of what, exactly, the majority has done today to alter the paradigm of accountability for Presidents of the United States.”

Distinguishing at length between the “individual accountability paradigm” that forms the basis for much of criminal law, Jackson argues forcefully that Monday’s ruling created an exception.

“[T]he majority holds that the President, unlike anyone else in our country, is comparatively free to engage in criminal acts in furtherance of his official duties,” she wrote.

In his conclusion on Monday, Roberts wrote, “This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer.”

Perhaps the decision would have more carefully adhered to, dare I suggest, history and tradition had the chief justice asked just one more question: Why?

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About facts

Among other critiques, and there are sure to be many, the immunity decision highlights up an important and disturbing reality of the Roberts court: When it needs to decide a matter for the right, it can and does accept questionable, if not false, claims as facts. If the result would benefit the left, however, there are virtually never enough facts to reach a decision.

When the case over Coach Joseph Kennedy’s football game prayers and the dispute over 303 Creative’s imaginary wedding websites came to the court over the past two terms, facts were whatever was necessary to decide the matter.

Contrast that to the case over Emergency Medical Treatment & Labor Act (EMTALA) this term and Monday’s immunity decision.

After the court granted certiorari before judgment in the Idaho case over EMTALA, the facts on the ground looked bad for Idaho’s claim that there was no conflict between Idaho’s abortion ban and EMTALA. Easy solution: Say there are too many questions. Roberts and Justices Amy Coney Barrett and Brett Kavanaugh detailed a few questions that they had, threw up their hands, and declared, as Barrett wrote, “In my judgment, it would be imprudent to answer these important questions now.“

On Monday, it was more of the same.

Even though Trump’s lawyer before the court conceded that at least some of the acts in the indictment were not official — something Roberts even acknowledged — he and the court’s majority refused to reach conclusions that those areas of the indictment were not official acts.

All of those had to be resolved on remand because that determination, Roberts wrote, “requires a close analysis of the indictment’s extensive and interrelated allegations.”