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Fundamental Thoughts on the Presidential Immunity Case [1]

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Date: 2024-07-01  

Everyone reading this is undoubtedly aware of the Supreme Court’s decision today, essentially giving Trump (and all future Presidents) a get out of jail free card. I urge everyone to read both the Court’s opinion and the three related opinions (Barrett concurring in all but one section of the majority’s opinion, and the dissents authored by Sotomayor and Jackson) and to form your own views. The two dissents are powerful and outstanding, and I don’t need to belabor the legal arguments because the dissents cover them far more eloquently and thoroughly than I could. Rather, I want to back up, forget the unnecessarily complex analyses offered by the majority, and repeat a few first principles that should be shared by all Americans, and that they should have learned in high school civics, if not before; but which the Supreme Court majority has evidently forgotten .

The essence of the Constitutional scheme of self-government is the rule of law. The essence of the rule of law, actually inscribed on the Supreme Court edifice, is “Equal Justice Under Law.” Equal justice under law, though not always perfectly achieved, has always been an ideal that America, and its jurisprudence, has aspired to. When in high school, I was taught that this aspiration meant that “no man [or woman] is above the law.” We were taught that whether you’re a bum in the gutter or the President of the United States , you are equally entitled to the rights enshrined in the Constitution, and equally responsible for obeying the laws enacted by our elected representatives. Indeed, this was such a fundamental principle of our constitutional republic that elementary school children absorbed it, even before formal instruction on the Constitution. “It’s a free country” and “that’s not fair” were sayings commonly invoked by children when confronted with arbitrary, unfair exercises of authority or bullying. And we believed it.

Well, after today, no more. One man is above the law. But don’t you understand, we have to give the President immunity so he can take bold, decisive action. We wouldn’t want to chill his exercise of power on Americans’ behalf, would we? (Never mind that to date, in the last 248 years or so of our history, there’s little evidence of Presidents being chilled from the exercise of power by worrying about criminal prosecution.)

A bit later, when I went to law school, we were taught about how important it is for courts to exercise “judicial restraint,” so as to avoid loss of legitimacy and to avoid usurpation of executive and legislative powers (under the core doctrine of separation of powers). Judges, being non-political and unelected actors, must be very careful to avoid judicial overreach. They do so by confining their decisions to actual cases and controversies, deciding no more than is necessary to resolve the specific case before them, refusing to render advisory opinions, and ruling on non-Constitutional rather than Constitutional grounds whenever possible. This was fundamental to preserving the legitimacy of the courts and the checks and balances that are so crucial to our system of ordered liberty. This is Constitutional Law 101.

Well, after today (and the overruling of Chevron), no more. The Supreme Court has now declared itself a super-legislature, writing “rules for the ages,” substituting their superior wisdom for the flawed reasoning of the legislative and executive branches, resolving cases by fiat based on (their) preferred outcomes, not on neutral principles.

I question whether our republic as we have known it for the last 250 years can survive this Court.

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