The Supreme Court ruled Monday that former President Donald Trump is immune from criminal prosecution for official acts committed while in office. This partial immunity ruling – that presidents do not enjoy absolute immunity for non-official acts committed while in office – is a stunning example of institutional arrogance and reckless judicial activism.
Instead of determining specifically whether special counsel Jack Smith’s criminal charges against Trump for election interference were invalidated by presidential immunity, the court acknowledged a broader purpose. Chief Justice John Roberts, writing for the majority, declared:[W]”We cannot afford to focus solely or primarily on the present emergency.” In plain terms, the court refused to answer the questions at the heart of Trump’s indictment, instead sending the case back to the district court for further argument and debate.
Rather than specifically determining whether presidential immunity invalidated Special Counsel Jack Smith’s criminal charges against President Trump for election interference, the court affirmed its broader purpose.
This is a far cry from Roberts’ comments during his Senate confirmation hearing, in which he likened his role to that of an umpire calling balls and strikes. The point of Roberts’ analogy is that judges do not make the rules, they are merely arbiters. But in this case, the Court ignored the long-standing principle of judicial restraint. Instead, the Court expanded the scope of the case beyond what the parties had proposed.
Meanwhile, we already knew this was a likely outcome. When the Court converted Trump’s stay of execution motion to certiorari, the justices drafted a broad question to decide: “Whether, and to what extent, former presidents enjoy presidential immunity from criminal prosecution for conduct allegedly related to their official duties while in office.”
During oral arguments on April 25, Trump lawyer D. Jon Sauer acknowledged that the Court “expanded the issues raised from what the parties have submitted for argument here.” This expansion led directly to the Court’s inconclusive ruling that a former president may be immune from liability for some acts but not others. This ruling not only prolonged the delay in Trump’s DC federal trial, but also remanded the case to Judge Tanya Chutkan. If the district court again rules that Trump is not immune, his lawyers will again appeal. And the endless loop of legal delays will continue.
The Supreme Court’s self-serving willingness to enunciate sweeping principles was highlighted by Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh during oral arguments.
Alito stressed that the issue before the court is larger than just one case because “any decision we make will apply to all future presidents.” After Justice Department lawyer Michael Dreben mentioned the specific charges in Trump’s lawsuit, Alito stressed, “As I said, this case will have implications that go far beyond this prosecution.”
Gorsuch appeared to share a similar view, saying he was “not just worried about this case, but about future cases.”
“As you’ve indicated, I believe this case has profound implications for the presidency, the future of the presidency and the future of the country,” Kavanaugh said during a conversation with Justice Department lawyers.
It was not part of this case to determine the scope of the president’s immunity in circumstances different from those alleged in Trump’s indictment.
But it was not part of this case to determine the scope of presidential immunity in circumstances different from those alleged in Trump’s indictment. Courts can and should decide constitutional issues based on the specific facts presented. For example, in Bush v. Gore, the 2000 decision that halted a recount of Florida’s votes and effectively awarded the presidential election to George Bush, the Court wrote: “Our consideration is limited to the present circumstances because the question of equal protection in election procedures generally involves many complex issues.”
Early in Chief Justice Roberts’ term, the Supreme Court adopted rules to “avoid broad constitutional rulings” in “a number of recent cases,” according to a 2014 report from the Congressional Research Service. The report detailed advice from Harvard Law School professor Cass Sunstein that “when deciding cases, justices should say no more than is necessary to justify their decision and leave as much open as possible.”
The court knows how to decide appeals on narrow grounds and leave further issues for future cases. Last month, in City of Napoleon, Ohio v. Chiaverini, the court upheld the validity of an arrestee’s Fourth Amendment claim, but Justice Elena Kagan wrote that she would “leave for another day” how that rule would be applied in court.
The Supreme Court chose not to adhere to this principle in the Trump case, to the detriment of both the law and American democracy. The majority not only blocked a timely prosecution of Trump for his alleged role in trying to remain in power after losing the 2020 election, but also revealed the Court’s own self-importance.
