As one of three Democratic appointees on the nine-member Supreme Court, Justice Sonia Sotomayor often provides a lonely, although eloquent voice of dissent.
But her dissent was about as subtle as a siren Monday as she railed against the high court’s decision to bestow presidents with immunity from prosecution over official actions. High-octane outrage was sadly appropriate for her and fellow dissenters, Justices Elena Kagan and Ketanji Brown Jackson.
As absurd as it sounded to me, among numerous others, the conservative majority ruled that former President Donald Trump does have some legal immunity for his official actions.
The six GOP-appointed justices made the president into “a king above the law,” she wrote, calling the majority “deeply wrong.”
“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” she wrote. The decision holds “stark” long-term consequences for the future of American democracy, including any bid to prosecute Trump for his attempt to subvert the outcome of the 2020 election.
Ah, if only Richard Nixon were around to see this. He’d probably lament how he was a president before his time.
“When the president does it, that means that it is not illegal,” Nixon famously told British journalist David Frost in a series of interviews in 1977, almost three years after he’d left the White House in disgrace.
I was bemused at how casually Nixon’s law school education seemed to have failed him. But I came to learn that academic education is no guard against a lack of ethics, especially in his case.
Chief Justice John Roberts seemed to exhibit similarly Nixonian thinking when he ruled on the federal prosecution of Trump for his role in the effort to overturn the 2020 presidential election. The president has “absolute immunity” for “official acts” when those acts relate to the core powers of the office, Roberts wrote.
“We conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote. “At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.”
In his 1973 book, “The Imperial Presidency,” historian Arthur Schlesinger, writing during the height of Watergate, made some of the same arguments Roberts did more than 50 years later in favor of a strong, activist executive branch. Much of Roberts’ justification for setting forth these brand new immunity standards was that a president has to be free to act in what they believe to be the country’s interest without fear of being charged criminally by a successor.
But, unlike Roberts, Schlesinger also acknowledged that expansions of presidential power since the founding had led to dangerous abuses.
It was abuses of power that concerned Sotomayor in her dissent. Insulating the president of the United States from criminal prosecution when he uses his official powers will allow him to freely use that authority to violate the law, exploit the trappings of his office for personal gain, or for other “evil ends,” she wrote.
That should concern all of us. Critics of Sotomayor’s view suggest she is being alarmist. I’m more concerned that she may not be alarmist enough.
The Supremes have raised the stakes for November’s election beyond the horrors many of us already have imagined. If Trump wins his bid for a second term, he will only be encouraged to behave even more outrageously, as if he ever has needed much encouragement at all.
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law,” Sotomayor wrote. “Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, … the Court gives former President Trump all the immunity he asked for and more.”
Trump could still seek further delays, as immunity questions are among the very few that may be appealed prior to trial.
Court critics have noted that the justices could have considered the case as early as December, when Justice Department special counsel Jack Smith unsuccessfully sought review of the same questions later put forward by Trump. For now, again justice is delayed and — in many ways I fear — possibly denied.