(WASHINGTON) — In a blistering dissent, Justice Sonia Sotomayor said the Supreme Court’s historic immunity ruling left her with “fear for our democracy.”
The 6-3 decision set a broad new definition of executive power as it stated former presidents are protected from criminal prosecution for “official acts” taken while in the White House, though they do not enjoy such immunity for “unofficial acts.”
The immediate effect is a delay in Donald Trump’s 2020 election subversion case while the trial court determines what actions alleged by federal prosecutors are official, and therefore protected, and which are not.
But the ruling has far-reaching implications for the future of the presidency, both sides agreed.
In Sotomayor’s view, the impact would be chilling. In every use of official authority, she stated, the president “is now a king above the law.”
“Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark,” she wrote. “The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding.”
Sotomayor went on to highlight some of the more severe examples debated during the immunity arguments, saying the majority’s guidelines for immunity would give former presidents legal cover in even those circumstances.
“The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” she wrote. “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.”
Sotomayor was joined in her dissent by Justices Elena Kagan and Ketanji Brown Jackson.
“As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision,” Jackson wrote in her own dissent.
Jackson described the majority’s threshold for deciding immunity on a case-by-case basis as complicated and convoluted. The model they laid out, she said, could leave presidents feeling more emboldened to act unlawfully.
“Having now cast the shadow of doubt over when — if ever — a former President will be subject to criminal liability for any criminal conduct he engages in while on duty, the majority incentivizes all future Presidents to cross the line of criminality while in office, knowing that unless they act ‘manifestly or palpably beyond [their] authority, they will be presumed above prosecution and punishment alike,” she wrote.
Justice Amy Coney Barrett, while concurring with much of the majority opinion, said she disagreed with their finding that conduct that is protected from immunity can’t be used as evidence to establish other charges — a point Sotomayor took issue with as well.
“I disagree with that holding; on this score I agree with the dissent,” Barrett wrote. “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”
“To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability,” she said.
Chief Justice John Roberts pushed back against the liberal dissents, saying they “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”
“Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.”
Roberts went on to state the dissenting justices were overlooking the potential harms of a lack of protection for presidential actions.
“Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute,” Roberts wrote.
“Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors.”
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