Five SCOTUS Justices’ Comments on Prez Immunity Come Back to Haunt Them
Owen Lavine – July 2, 2024
Photo Illustration by Thomas Levinson/The Daily Beast/Getty
Collective amnesia seems to have struck the conservative majority on the Supreme Court, especially around the question: Is the president above the law?
Five of the six conservative justices who ruled to give the president absolute immunity for “core” presidential duties seem to have made contradictory statements during their Senate confirmation hearings.
“No man is above the law,” Neil Gorsuch told Sen. Patrick Leahy (D-VT) during his confirmation hearing in 2017.
Gorsuch even doubled down, calling the court’s landmark 1952 decision in Youngstown v. Sawyer, which reigned in presidential authority, a “brilliant opinion.”
Similarly, Brett Kavanaugh told the Senate that “no one is above the law” during his 2018 confirmation hearing, according to CNN. Amy Coney Barrett concurred during her hearing, but like Kavanaugh, obfuscated on presidential pardons, according to The New York Times.
“That question may or may not arise, but that is one that calls for legal analysis of what the scope of the pardon power is,” Barrett told the Senate on the extent of the presidential pardon.
Kavanaugh told the Senate, “The question of self pardons is something I have never analyzed.”
In Samuel Alito’s confirmation hearing he told the senate that “no president, Democratic or Republican, no president is above the law, as neither are you, nor I, nor anyone in this room.”
Alito also praised the Youngstown ruling, adding that during Watergate it was “the responsibility of the judiciary to hold fast,” in forcing President Nixon to abide by subpoenas.
“Senator, I believe that no one is above the law under our system, and that includes the president,” he said in his 2005 confirmation hearing. “The president is fully bound by the law, the Constitution and statutes. Now, there often arise issues where there’s a conflict between the Legislature and the Executive over an exercise of Executive authority, asserted Executive authority. The framework for analyzing that is in the Youngstown Sheet and Tube case, the famous case coming out of President Truman’s seizure of the steel mills.”
Justice’s dissent: ‘The president is now a king above the law’
By Mike Wendling, BBC News – July 1, 2024
Three justices have issued a blistering dissent to the US Supreme Court opinion granting Donald Trump partial immunity from prosecution, warning that it will allow presidential power to be used “for evil ends”.
The 6-3 historic decision effectively strips out key parts of an indictment against the former president for allegedly conspiring to overturn his 2020 election defeat.
Six conservative-leaning justices signed the majority opinion, but the three liberals dissented, expressing “fear for our democracy”.
President Joe Biden similarly warned of a “dangerous precedent”, while one legal expert said this was not simply a case of “fear-mongering”.
Leading the liberals, Justice Sonia Sotomayor outlined hypothetical situations where the concept of immunity could apply.
“Orders the Navy’s Seal Team 6 to assassinate a political rival?” she wrote. “Immune.”
“Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
“Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done,” Justice Sotomayor wrote. “In every use of official power, the President is now a king above the law.”
Justice Sotomayor was joined in her dissent by the court’s two other liberal justices, Ketanji Brown Jackson and Elena Kagan.
Justice Jackson wrote in a separate dissent that the majority’s ruling “breaks new and dangerous ground” by “discarding” the nation’s long-held principle that no-one is above the law.
“That core principle has long prevented our Nation from devolving into despotism,” she said.
Justice Sotomayor argued that the majority had invented a notion of absolute immunity for a president performing “official acts”, even though it has at times been assumed that presidents could be prosecuted for things they did while in office.
She was visibly emotional as she spent more than 20 minutes reading out parts of her opinion on Monday.
She cited Richard Nixon getting pardoned by the president who succeeded him, Gerald Ford, for using his official powers to obstruct an investigation into the Watergate burglary – the scandal that eventually led to Mr Nixon’s resignation.
Those involved in the case were under the presumption that Mr Nixon did not have immunity and could be prosecuted after leaving office, Justice Sotomayor wrote.
Her opinion went much further back in history as well. She quoted US Founding Father Alexander Hamilton, who wrote that former presidents would be “liable to prosecution and punishment in the ordinary course of law”.
But the majority opinion, written by Chief Justice John Roberts, argued that the dissenters “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today”.
He wrote that the liberal justices were “fear mongering on the basis of extreme hypotheticals” and dismissed their legal reasoning as weak.
Normally, court dissents include the word “respectfully” but Ms Sotomayor signed off hers by writing: “With fear for our democracy, I dissent.”
And Ms Sotomayor’s dissent was echoed by President Biden’s campaign manager, Quentin Fulks, in a call with reporters.
“Immune, immune, immune. They just handed Donald Trump keys to a dictatorship,” Mr Fulks said.
Legal experts indicated that the scenarios laid out by the justices, as stark as they might seem, are open to further interpretation, particularly by lower courts.
Jeffrey Cohen, an associate professor at Boston College Law School, told the BBC that the opinion lacks clarity as to what counts as an official act.
“There’s language in there that suggests that official acts could bleed into unofficial acts really easily and render things presumptively immune,” he said. “It’s a problem that the court has left us all with this sinking feeling that they’re presuming almost everything is immune.”
Leah Litman, a law professor at the University of Michigan, said that on significant government procedure cases such as this one, the Supreme Court has usually come to a unanimous verdict, but failed to do so this time.
The decision, she said, “strongly places the thumb on the scale in favour of immunity.”
“I don’t think the dissent is being fear-mongering. At the minimum, it is unclear how a prosecution could proceed on several of the theories laid out in the majority opinion.”
Julie Novkov, the dean of Rockefeller College of Public Affairs and Policy at the University at Albany, said she was surprised at the broad definition of official acts.
But she noted that the decision raises complicated factual questions.
“I could imagine scenarios were we would have to get into this really careful analysis,” she added.
With reporting by Bernd Debusmann Jr at the Supreme Court and Rachel Looker in Washington
Sotomayor’s dissent: A president should not be a ‘king above the law’
By Lindsay Whitehurst – July 1, 2024
Supreme Court Justice Sonia Sotomayor attends a panel discussion, Feb. 23, 2024 in Washington. The Supreme Court allowed a president to become a “king above the law,” in the use of official power, Sotomayor said in a biting dissent Monday, July 1, that called the majority opinion on immunity for former President Donald Trump “utterly indefensible.” Joined by the court’s two other liberals, Sotomayor said the opinion would have disastrous consequences for the presidency and the nation’s democracy by creating a “law-free zone around the president.” (AP Photo/Mark Schiefelbein, File)
Members of the Supreme Court sit for a group portrait in Washington, Oct. 7, 2022. Bottom row, from left, Justice Sonia Sotomayor, Justice Clarence Thomas, Chief Justice John Roberts, Justice Samuel Alito and Justice Elena Kagan. Top row, from left, Justice Amy Coney Barrett, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Ketanji Brown Jackson. The Supreme Court justices will take the bench Monday, July 1, 2024, to release their last few opinions of the term, including their most closely watched case: whether former President Donald Trump has immunity from criminal prosecution. (AP Photo/J. Scott Applewhite)Read More
People protest outside the Supreme Court Monday, July 1, 2024, in Washington. (AP Photo/Mariam Zuhaib)
The Supreme Court building is seen on June 27, 2024, in Washington. Supreme Court justices will take the bench Monday, July 1, to release their last few opinions of the term, including their most closely watched case: whether former President Donald Trump has immunity from criminal prosecution. (AP Photo/Mark Schiefelbein, File)
The Supreme Court opinion in former President Donald Trump’s immunity case is photographed Monday, July 1, 2024. In a historic ruling the justices said for the first time former presidents can be shielded from prosecution for at least some of what they do in the Oval Office. (AP Photo/Jon Elswick)
Republican presidential candidate former President Donald Trump speaks at a campaign rally in Chesapeake, Va., Friday, June 28, 2024. (AP Photo/Steve Helber)
WASHINGTON (AP) — In an unsparing dissent, Justice Sonia Sotomayor said the Supreme Court allowed a president to become a “king above the law” in its ruling that limited the scope of criminal charges against former President Donald Trump for his role in the Jan. 6, 2021 riot at the U.S. Capitol and efforts to overturn the election.
She called the decision, which likely ended the prospect of a trial for Trump before the November election, “utterly indefensible.”
“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” she wrote. She was joined by liberal justices Elena Kagan and Ketanji Brown Jackson, who wrote another dissent referring to the ruling’s consequences as a “five alarm fire.”
Sotomayor read her dissent aloud in the courtroom, with a weighty delivery that underscored her criticism of the majority. She strongly pronounced each word, pausing at certain moments and gritting her teeth at others.
“Ironic isn’t it? The man in charge of enforcing laws can now just break them,” Sotomayor said.
Chief Justice John Roberts accused the liberal justices of fearmongering in the 6-3 majority opinion. It found that presidents aren’t above the law but must be entitled to presumptive immunity to allow them to forcefully exercise the office’s far-reaching powers and avoid a vicious cycle of politically motivated prosecutions.
While the opinion allows for the possibility of prosecutions for private acts, Sotomayor said it “deprives these prosecutions of any teeth” by excluding any evidence that related to official acts where the president is immune.
“This majority’s project will have disastrous consequences for the presidency and for our democracy,” she said. She ended by saying, “With fear for our democracy, I dissent.”
Trump, for his part, has denied doing anything wrong and has said this prosecution and three others are politically motivated to try to keep him from returning to the White House.
The other justices looked on in silence and largely remained still as Sotomayor spoke, with Justice Samuel Alito shuffling through papers and appearing to study them.
Sotomayor pointed to historical evidence, from the founding fathers to Watergate, that presidents could potentially face prosecution. She took a jab at the conservative majority that has made the nation’s history a guiding principle on issues like guns and abortion. “Interesting, history matters, right?”
Then she looked at the courtroom audience and concluded, “Except here.”
The majority feared that the threat of potential prosecution could constrain a president or create a “cycle of factional strife,” that the founders intended to avoid.
Sotomayor, on the other handed, pointed out that presidents have access to extensive legal advice about their actions and that criminal cases typically face high bars in court to proceed.
“It is a far greater danger if the president feels empowered to violate federal criminal law, buoyed by the knowledge of future immunity,” she said. “I am deeply troubled by the idea … that our nation loses something valuable when the president is forced to operate within the confines of federal criminal law.”
Associated Press writer Stephen Groves contributed to this story.
Lindsay Whitehurst is a national criminal justice reporter for The Associated Press, based in Washington, D.C. She covers the Justice Department, public safety and legal issues.
Liberal justices say Trump immunity decision ‘will have disastrous consequences’ for the U.S.
The Supreme Court ruled that the former president has some immunity from prosecution in his federal election interference case, further delaying the trial.
Rebecca Shabad – July 1, 2024
Justice Sonia Sotomayor said the majority had invented an “unjustifiable” immunity that puts a president above the law. Jahi Chikwendiu / The Washington Post via Getty Images
WASHINGTON — The Supreme Court’s liberal bloc issued blistering dissents Monday in the Trump immunity ruling, arguing that it “reshapes the institution of the presidency” and “makes a mockery” of the constitutional principle that no man is above the law.
Justice Sonia Sotomayor, reading her dissent from the bench, said that “relying on little more than its own misguided wisdom … the Court gives former President Trump all the immunity he asked for and more.”
She added that “because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.”
The Supreme Court ruled 6-3 on ideological lines that former President Donald Trump has immunity for some of his conduct as president but not unofficial acts in the federal election interference case. The court did not determine what constitutes an “official” act in this case, leaving that to the lower court.
The decision adds another hurdle and further delay to special counsel Jack Smith’s prosecution of the former president. Trump was indicted last year on charges he conspired to “overturn the legitimate results of the 2020 presidential election.”
Sotomayor said that the majority opinion, written by Chief Justice John Roberts, invents “an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.”
Their ruling, she went on, makes three moves that she said “completely insulate Presidents from criminal liability.” Sotomayor said the court creates absolute immunity for the president’s exercise of “core constitutional powers,” creates “expansive immunity for all ‘official acts,'” and “declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him.”
Sotomayor warned that the ruling “will have disastrous consequences for the Presidency and for our democracy” and that it sends the message: “Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends.”
She added, “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.”
In her own written dissent, Justice Ketanji Brown Jackson said that the majority’s ruling “breaks new and dangerous ground.”
“Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law — applicable only to the most powerful official in our Government,” she wrote.
Jackson warned that under the majority’s “new Presidential accountability mode,” a hypothetical president “who admits to having ordered the assassinations of his political rivals or critics…or one who indisputably instigates an unsuccessful coup…has a fair shot at getting immunity.”
The chief justice dismissed the dissents, suggesting that his three liberal colleagues had misinterpreted the majority’s opinion and were engaging in “fear mongering.” Roberts argued that they “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.” He wrote that “like everyone else, the President is subject to prosecution in his unofficial capacity.”
He also appeared to scoff at Sotomayor for what she included in her dissent, saying that her “most compelling piece of evidence consists of excerpted statements of Charles Pinckney from an 1800 Senate debate.” He continued, “But those statements reflect only the now-discredited argument that any immunity not expressly mentioned in the Constitution must not exist.”
Justice Amy Coney Barrett wrote in a concurring opinion that she agreed with some of the majority opinion but not all of it. Notably, she said she agreed with Sotomayor that Trump’s immune conduct should still be allowed to be used as evidence in his trial.
“The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” she said.
Soon after the court issued the ruling, Trump celebrated the decision on his Truth Social account, writing in all caps: “Big win for our Constitution and democracy. Proud to be an American!”
A Biden campaign adviser, on the other hand, said that the ruling doesn’t change what happened on Jan. 6, 2021.
“Donald Trump snapped after he lost the 2020 election and encouraged a mob to overthrow the results of a free and fair election,” the adviser said. “Trump is already running for president as a convicted felon for the very same reason he sat idly by while the mob violently attacked the Capitol: he thinks he’s above the law and is willing to do anything to gain and hold onto power for himself.”
