Supreme Court Justice Sonia Sotomayor and Supreme Court Justice Ketanji Brown Jackson.
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Supreme Court Justices Sonia Sotomayor, Ketanji Brown Jackson and Elena Kagan laid out bleak visions of U.S. democracy in their joint written dissents against the court’s decision Monday on former President Donald Trump’s claim to presidential immunity from prosecution.
“In every exercise of official power, the president is now a king above the law,” Sotomayor wrote. “This majority’s project will have disastrous consequences for the presidency and our democracy.”
Jackson reiterated her warning: “If the structural consequences of today’s paradigm shift represent a step in the wrong direction, then the practical consequences are a red flag that threatens to destroy democratic self-government and the normal operations of our government.”
According to written reports, the dissenters’ concerns were “definitely striking,” said Alison LaCroix, a legal historian at the University of Chicago.
“It’s a darker tone. It’s more of a warning,” LaCroix told CNBC in an interview about the three dissents written by the only three justices nominated to the court by Democratic presidents.
In a 6-3 opinion along partisan lines, the Supreme Court ruled Monday that presidents are immune from criminal prosecution on a case-by-case basis, exempt when charges relate to “official” actions of the president, rather than of Excluded from charges are “unofficial” actions.
The immediate result was that special counsel Jack Smith’s election fraud case against Trump was sent back to U.S. District Judge Tanya Chutkan. She will have to decide whether the criminal charges relate to official actions Trump took as president that granted him immunity, or to his private conduct.
The added complexity will almost certainly delay the process until after the Nov. 5 election, a victory for Trump, the presumptive nominee, and Republicans.
Former US President and Republican presidential candidate Donald Trump awaits the start of his criminal trial at Manhattan Criminal Court in New York City on May 29, 2024.
Charly Triballeau | Via Reuters
Chief Justice John Roberts tried to portray the majority opinion as a modest move, which is why the dissenters felt the need to mount such particularly strong opposition, LaCroix said.
“Chief Justice Roberts has tried, as he often does, to take some kind of middle ground between moderation and the court as an institution,” LaCroix said. “The dissenters really point out and say, ‘Look, you need to acknowledge or admit that this is as big a deal as it is.'”
Sotomayor wrote: “The long-term consequences of today’s decision are grave. The court is effectively creating a legal vacuum around the president and upsetting the status quo that has existed since the founding.”
The dissenters, all appointed by Democratic presidents, argued that the ruling would expand executive power beyond anything justices can imagine today.
They also laid out several hypothetical scenarios for presidential crimes that they claimed would now be difficult or impossible to prosecute.
For example, when the president “orders the Navy’s Seal Team 6 to assassinate a political rival? Immune,” Sotomayor wrote. “Organize a military coup to stay in power? Immune. Accepting a bribe in return for a pardon? Immune. Immune, immune, immune.”
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Whether a president is immune “from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed crime” will now “always and inevitably be: it depends,” Jackson wrote.
“Even if these nightmare scenarios never happen, and I pray they never do, the damage has already been done,” Sotomayor added.
LaCroix said that while these hypotheses are extreme and “obviously rhetorical,” they are not a complete exaggeration.
“I think what we’ve seen over the last five or six years is that anything that someone can come up with as a hypothesis is increasingly something that actually happens or could happen,” she said.
“We have seen many norms simply thrown overboard. I think the lesson of the last half decade is: Don’t assume anything is completely off the table.”
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2024-07-01 23:34:32
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