Today, the decision on Presidential immunity in Trump v. United States was announced, which was a tragic event. This was my first time attending a Supreme Court decision announcement, and I was surprised that the Supreme Court security guards repeatedly called for quiet in the already silent courtroom before the session even began. There was only very calm and reserved conversation among the lawyers sitting in the Supreme Court’s lawyers’ seats, and very little conversation in the general seats.
But this “quietness” was achieved by security guards whose backs were to the bar and the dais where the judges sat, facing the public. In other words, only the public was warned to be quiet. Of course, decorum is important in the High Court, as in any courtroom, but this advance warning to the public seemed unnecessary. There’s no need to make a fuss about something that’s not happening. This turned out to be a metaphor for the majority opinion that Chief Justice John Roberts delivered from the court as the trial began.
In an opinion that seemed to drive the final nail in the coffin for special counsel Jack Smith’s chances of having his January 6th case against Trump heard before the election, the Supreme Court wrote the opinion for a right-wing majority made up of Alito, Thomas, Kavanaugh, Gorsuch (who was absent for no apparent reason) and Coney Barrett (who was more personable than expected, even joking with the public that the opinion she released was not what anyone wanted to hear).
In his opinion, Justice Roberts made it clear that the President of the United States should be given complete immunity for acts that are within the scope of the powers vested solely in the President, and while he acknowledged that the President may be prosecuted for unofficial acts, he concluded that the Supreme Court did not know enough about the events of January 6 to determine which acts of former President Trump were prosecutable. Therefore, as many experts predicted, the case was sent back to the lower courts to decide on that part first (and these decisions will undoubtedly then be appealed again to the Supreme Court).
Roberts wrote: “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. The President is also entitled to immunity with respect to the rest of his official duties. At this stage in the case, however, it is not necessary, and I do not intend to decide, whether immunity must be absolute.”
The basis for this ruling was Roberts’ anguish that the threat of criminal liability would cause the president to “hesitate from fearlessly discharging his duties” and that “the Framers’ design of the presidency did not contemplate such perverse burdens on the ‘energy’ of the president.”[]”The ‘power’ and ‘energy’ of administration” (citing Federalist No. 70).
Of course, as Roberts points out at the beginning of his analysis, a president has never been criminally prosecuted for acts committed while in office, meaning two centuries have passed leaving presidents vulnerable to dangers they have never faced before. This is an unnecessary “shut up” analogy.
While Roberts read the opinion calmly, the conservative majority seemed disinterested or preoccupied for the most part. Justice Thomas occasionally leaned back to rest his eyes, while Justice Alito looked contented and occupied with the task at hand. Justice Kavanaugh looked attentively toward Roberts as the Chief Justice read, reminiscent of a college student sitting in the front row trying to appear focused. Justice Coney Barrett, perhaps anticipating the discomfort she would find in Justice Sonia Sotomayor’s dissenting opinion, stared straight ahead and exuded a noticeably less comfortable air than when she joked about her own opinions.
Supreme Court Justices: Seated (from left): Justice Sonia Sotomayor, Justice Clarence Thomas, Chief Justice John G. Roberts Jr., Justice Samuel A. Alito Jr., and Justice Elena Kagan. Standing (from left): Justice Amy Coney Barrett, Justice Neil M. Gorsuch, Justice Brett M. Kavanaugh, and Justice Ketanji Brown Jackson.
Evelyn Hochstein/Reuters
As Justice Sotomayor began to read her dissent, the atmosphere on the court became visibly tense. In a forceful dissent joined by Justices Ketanji Brown Jackson and Elena Kagan, Justice Sotomayor criticized the majority’s lack of legal reasoning, writing:[a]”With each passing debate the majority forcibly manufactures its own immunity,” he said, calling the majority’s conclusion “completely indefensible.”
Justice Sotomayor noted that the majority’s assertion that they begin by assessing how the Constitution deals with presidential powers is spurious given that the Constitution says nothing about presidential immunity, and at times turned directly to her conservative colleagues to her left, appearing to focus specifically on Chief Justice Roberts, to accentuate the reading. Meanwhile, Justice Coney Barrett, physically separated from her conservative colleagues by Justice Gorsuch’s vacant seat and Justice Sotomayor, stared fixedly at the back of the courtroom, where the gaudy red velvet floor-to-ceiling curtains meet the 44-foot-high ceiling.
“Out of concern for our democracy, I oppose it.“
— Justice Sonia Sotomayor
Sotomayor’s dissent articulated a series of dire consequences that could be unleashed by the majority’s ruling. Referring to a now-immortal hypothetical raised by D.C. Circuit Judge Florence Pan during the appeals court’s arguments, Sotomayor wrote of the president: “The majority’s reasoning makes the president immune from criminal prosecution when he exercises public power in any way. Order Navy SEAL Unit 6 to assassinate a political opponent? Immunity. Raise an army to retain power? Immunity. Accept a bribe in exchange for a pardon. Immunity. Immunity, immunity, immunity.”
In her powerful conclusion, Sotomayor writes: “I fear for our democracy and I vote no.”
Notably, she omitted the traditional closing words “respectfully.” Justice Jackson’s dissenting opinion read, “I [Sotomayor’s] The “strong dissenting opinion” similarly omitted the words “respectfully.”
I said at the start that this was a somber affair, and it was. The excited anticipation of the court had completely dissipated by the time the announcements were finished. Chief Justice Roberts’s thanks to court staff and colleagues and list of retirees seemed to go on and on. Even Roberts’ gaffe, in which he mistakenly referred to a fellow justice as an “employee,” elicited only a few laughs.
Justice Sotomayor’s powerful writing was not only filled with anger, but also with loneliness. The loneliness of a legal scholar who watches helplessly as the Supreme Court is taken over by the brute power of a conservative majority built up over decades. This loneliness was most evident in the many times she turned to Chief Justice Roberts to speak. In a normal conversation, when someone turns to you and speaks, you usually look back at them, nod, or smile to make them feel included and acknowledged. But Justice Roberts never looked back at his colleague. He probably didn’t feel the need to.
