Associate Justices Sonia Sotomayor and Ketanji Brown Jackson pose at a courtesy visit in the Justices Conference Room prior to the investiture ceremony of Justice Jackson, Sept. 30, 2022, in Washington, DC. (Collection of the Supreme Court of the United States via Getty Images)
Near the end of her fierce dissent from the opinion granting Donald Trump vast immunity from criminal prosecution, Supreme Court Justice Sonia Sotomayor employed repetition to clarify her point about the broad-based nature of the ideological 6-3 majority’s decision.
“Immune,” she writes. “Immune, immune, immune.”
The opinion by Chief Justice John Roberts in Trump v. United States briefly sketches out a never-before-ventured legal concept: when the “core constitutional powers” are exercised by a president, their immunity from criminal prosecution “must be absolute.”
The impact of what absolute immunity means, in real terms, for the use of those core powers is explored by Sotomayor and, to a lesser degree, in a separate dissent by Justice Ketanji Brown Jackson.
To hear Sotomayor and Jackson tell it, the absolute immunity created by the court portends both a dire and confusing future.
“Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark,” Sotomayor warns. “The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding.”
Where this zone begins and ends, however, is yet to be determined.
The majority opinion spends a few pages outlining some of that core — by which it largely, but not entirely, means powers contained within the text of Article II of the U.S. Constitution.
Roberts lists the following areas as residing within the core:
They include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States. He also has important foreign relations responsibilities: making treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration.
The majority then goes on to spend a few more pages addressing additional court-created areas of the absolute immunity core that “follow” from “the text of Article II.” Jackson, for her part, rubbishes the high court’s self-referential efforts. Rather than limiting the core, she argues, the court seems ready to enlarge it at will.
From the secondary dissent, at length:
[W]hatever additional power the majority’s new Presidential accountability model gives to the Presidency, it gives doubly to the Court itself, for the majority provides no meaningful guidance about how to apply this new paradigm or how to categorize a President’s conduct. For instance, its opinion lists some examples of the “core” constitutional powers with respect to which the President is now entitled to absolute immunity — a list that apparently includes the removal power, the power to recognize foreign nations, and the pardon power. However, the majority does not — and likely cannot — supply any useful or administrable definition of the scope of that “core.” For what it’s worth, the Constitution’s text is no help either; Article II does not contain a Core Powers Clause. So the actual metes and bounds of the “core” Presidential powers are really anyone’s guess.
More Law&Crime coverage: Justice Thomas just gifted Judge Cannon a reason to blow up Trump’s Mar-a-Lago prosecution, another bad sign for Jack Smith
Sotomayor, in her dissent, mostly deals with the legal landscape behind the majority’s opinion — but also seizes onto just a few of the Roberts-delineated core areas to describe “nightmare scenarios” that might result from a president untethered by law.
“The President of the United States is the most powerful person in the country, and possibly the world,” the lead dissent reads. “When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Roberts, in creating several levels of criminal immunity that last beyond a president’s time in office, has imbued the presidency itself with a series of perverse and self-serving incentives, Sotomayor argues.
“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,” the lead dissent goes on. “Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.”
More Law&Crime coverage: Supreme Court rules Trump immune in ‘improper’ Jeffrey Clark scheme as majority takes hacksaw to Jan. 6 case
Jackson, in her self-described “theoretical nuts and bolts” dissent, goes on to preview how the court’s new vision of law results in the “aggrandizing power in the Judiciary and the Executive, to the detriment of Congress.”
Once more, the secondary dissent, at length:
With its adoption of a paradigm that sometimes exempts the President from the dictates of the law (when the Court says so), this Court has effectively snatched from the Legislature the authority to bind the President (or not) to Congress’s mandates, and it has also thereby substantially augmented the power of both the Office of the Presidency and itself
…
Perhaps even more troubling, while Congress (the branch of our Government most accountable to the People) is the entity our Constitution tasks with deciding, as a general matter, what conduct is on or off limits, the Court has now arrogated that power unto itself when that question pertains to the President. In essence, the Court has now imposed its own preclearance requirement on the application of Congress’s laws to a former President alleged to have committed crimes while in office.
Jackson also says the new legal theory created by the six Republican-appointed justices undermines the law “to the detriment of us all.”
“Under the individual accountability model, because everyone is subject to the law, the potential of criminal liability operates as a constraint on the actions and decisions of everyone, including the President,” she argues. “After today, that reality is no more. Consequently, our Nation has lost a substantial check on Presidents who would use their official powers to commit crimes with impunity while in office.”
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