We should generally dread what a president might do with a guarantee they’ll be seen as a king above the law.
The Supreme Court majority’s extreme decision in Trump v. U.S. that our president is above the law is anathema to the history of our nation. The country’s founding was ignited by rebellion against a king who treated us unfairly and who was immune to accountability. We now have a Court with no real accountability that has given themselves more power than ever, entitling presidents to get away with whatever they want. They have upended our founders’ declaration of a government of laws, not men.
Some may cling to an optimistic reading of the decision. The Court, after all, only offered immunity to “official acts” by the president, so surely criminal behavior that warrants prosecution would always be “unofficial acts” anyway, right? The problem with this reading: The very Supreme Court that offered this immunity will determine which acts warrant it.
Notably, in the majority opinion, Chief Justice Roberts provided no examples of behavior that would be guaranteed to fall outside the “official acts” category. Where he does speculate, Roberts offers wide latitude for allowing criminal behavior, stretching immunity to the “actions performed within the outer perimeter of his official responsibilities.” It’s hard to fathom what couldn’t be included in this broad “perimeter.”
The problem with this reading: The very Supreme Court that offered this immunity will determine which acts warrant it.
For example, if any random person were to direct another to commit a crime, they would be considered party to that crime. But if the president directs their attorney general to commit a crime—and threatens to fire that attorney general for not committing that crime—the Court has said that’s all well and good. After all, such discussions “are readily categorized in light of the nature of the President’s official relationship to the office held by that individual,” and the president must maintain “unrestricted power to remove the most important of his subordinates.”
We can see even in this example how easily the Court is willing to call anything an official act. Even if common sense tells us that an unlawful act is not within the powers of the president, all that matters is that the president is doing something “official” while carrying out that act.
Justice Jackson drives this point home in her separate dissent: “Immunity can issue for Presidents under the majority’s model even for unquestionably and intentionally egregious criminal behavior.” So long as the judges who hear the case can point to a presidential duty that was underway, the criminal behavior can be excused. The judiciary, Jackson writes, becomes a “newfound special gatekeeper” with the power to decide whether any given law “applies to the President at all.”
Given that it’s the conservative justices—three of whom were appointed by former President Trump—issued this decision to protect Trump from prosecution, it’s not hard to imagine the Court using this power in a politically slanted way. If a Republican president does something, it’s magically an “official act,” but if a Democratic president does something, it’s somehow not.
Some find comfort in Justice Barrett’s concurrence, given she carves out more room for a president’s crimes to not be so easily protected by “official acts.” While it’s a nice thought, a single justice’s concurrence carries little weight when interpreting the impact of this decision. Barrett still otherwise joined the other conservatives in agreeing to grant the immunity at all, making her part of the problem and not at all part of the solution.
Justice Sotomayor was biting in her dissent on behalf of the liberal justices. The majority, she wrote, “invents an atextual, ahistorical and unjustifiable immunity that puts the President above the law.” She noted that allowing for the prosecution of “unofficial” or private acts was never even in question. This Court would find a president immune for having a political rival assassinated, organizing a military coup, or taking a bribe in exchange for a pardon as examples. She concluded, “With fear for our democracy, I dissent.”
As far as Supreme Court dynamics go, not offering that ‘respect’ is often an indication of the dissenting justices’ utter dismay at how egregiously wrong the majority is.
And therein is something telling. In almost every case, the dissenting justices write, “I respectfully dissent,” but both Sotomayor and Jackson omit the “respectfully” in their dissents in Trump v. U.S. As far as Supreme Court dynamics go, not offering that “respect” is often an indication of the dissenting justices’ utter dismay at how egregiously wrong the majority is. The first justice to notably drop “respectfully” was Justice Ruth Bader Ginsburg when she dissented from Bush v. Gore in 2000. Given how Trump v. U.S. similarly damages democracy to empower a loser of the popular vote, it was apt to follow suit here.
There is little to cling to in this decision. It is as un-American as can be, and we should generally dread what a president might do with a guarantee they’ll be seen as above the law.
Up next:
U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.
