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July 01, 2024 11:26 AM UTC

United States Supreme Court Takes a Dump on the Republic

  • by: Colorado Pols

Nothing quite says, “Happy Birthday, America” like opening the door to turning the United States into a dictatorship.

The conservative majority on the United States Supreme Court used the opportunity of the week of America’s birthday to award “Presidential immunity” to whomever occupies the top elected office in the land. The Washington Post explains a complicated but absolutely terrifying ruling:

Former presidents are immune from prosecution for official actions taken while in the White House, the Supreme Court ruled on Monday, but do not have immunity for unofficial acts — a broad new definition of presidential power that may stand for generations and will likely mean more months of delay for Donald Trump’s pending election-interference trial. [Pols emphasis]

The 6-3 decision along ideological lines appears to rule out one set of allegations in Trump’s federal election-interference trial, involving his conversations with Justice Department officials after Joe Biden’s 2020 election victory, and signals other parts of the case against him may proceed only after additional lower court rulings.

It seems highly unlikely that the 45th president will go to trial on charges of trying to subvert the 2020 election before voters cast ballots in this year’s presidential contest, in which Trump is the presumptive Republican nominee.

Writing for the majority, Chief Justice John G. Roberts Jr. said, a president “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.”

But Roberts added, the president “enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law.” [Pols emphasis]

Chief Justice John Roberts and the conservative majority are no doubt repeating this excuse in their heads even as we write, but it’s a nonsense statement. For all intents and purposes, any President is basically now above the law now, protected from prosecution by a dictionary. As long as you can make even the most ridiculous of arguments that a presidential action was “official,” then the President can do pretty much anything.

The ruling feels like a ‘thank you’ card to former President Donald Trump for helping to ensure the right-wing MAGA majority on the highest court in the land. The three Justices appointed by Trump — Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh — joined with Robert and conservatives Samuel Alito and Clarence Thomas in crafting a virtual “get out of jail free” card for Trump. Many legal experts said that Alito and Thomas probably should have recused themselves from the case, given that their spouses very publicly supported the January 6, 2021 insurrection that was largely what this case was about.

John W. Dean, former White House counsel for President Richard Nixon

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented in the case known as Trump v. United States, with Sotomayor authoring a blistering opposition. Via The New York Times:

Writing that the majority was “deeply wrong,” Justice Sonia Sotomayor added that beyond its consequences for the bid to prosecute Mr. Trump for his attempt to subvert the outcome of the 2020 election, it would have “stark” long-term consequences for the future of American democracy.

“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” she wrote, in an opinion joined by the other two Democratic appointees, Justices Elena Kagan and Ketanji Brown Jackson.

Insulating the president of the United States — the most powerful person in the country and possibly the world, she noted — from criminal prosecution when he uses his official powers will allow him to freely use his official power to violate the law, exploit the trappings of his office for personal gain, or other “evil ends.”

“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military exchange for a pardon? Immune. Immune, immune, immune,” she wrote, adding: “Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the president and the people he serves has shifted irrevocably.” [Pols emphasis]

Justice Sotomayor also wrote that how the majority had applied the new standard of immunity to official acts to Mr. Trump’s case specifically was “perhaps even more troubling.” Its analysis, she added, operated as a “one-way ratchet” — helping the defense but offering no help to the prosecution.

For example, she wrote, the majority declared that all of Mr. Trump’s actions involving Vice President Mike Pence and the Justice Department counted as official conduct but did not designate any actions in the indictment as falling into the non-“core” category of official conduct that it said could be prosecuted. Nor did it designate as clearly private actions any of several things that Mr. Trump’s team had conceded looked unofficial, like Mr. Trump’s interactions with a personal lawyer…

Sometimes justices conclude their dissents with a softening and polite qualifier, writing “Respectfully, I dissent.” Justice Sotomayor instead concluded this one harshly: “With fear for our democracy, I dissent.” [Pols emphasis]

This is the part where we remind you, once again, that elections matter.

They matter a great deal.

And there may truly be no more important election than the one this November — which could put Donald Trump back in the White House with a license to basically do whatever he wants.


11 thoughts on “United States Supreme Court Takes a Dump on the Republic

  1. The path not taken …..

    I'm think back 20 years ago and how it is that we ended up with Alito. Recall that Bush wanted to appoint one Harriett Miers who was a local lawyer from Texas. The concensus was, "Harriet who?" followed by sneering and snickering. She was on track to being confirm until it came out that she may have said something vaguely pro-choice on the issue of reproductive freedom at some point in her younger years. She ended up withdrawing and the rest is history.

    There are all those other forks in the road that have occurred.  If Claence Thomas hadn't frightened Dems in the Senate into confirming him, he may been rejected and Daddy Bush would have turned to a David Souter-type as the replacement nominee.

    If people hadn't thought that Al Gore and Bush, Jr. were indistinguishable, and hadn't wasted their votes on Ralph Nader, Gore, not Bush, Jr., would have replaced Rhenquist and O'Connor.

    If Colorado had re-elected Mark Udall in 2014, Merrick Garland might be on the Supreme Court today.

    If people hadn't wasted their votes on Jill Stein in 2016, Hillary Clinton would have replaced Scalia (assuming Garland wasn't confirmed), Kennedy and Ginsburg.

    If Ginsburg didn't believe that she was immortal, she would have accepted Obama's invitation to step down before 2014, and Obama would have selected her replacement.

    There's plenty of blame to go around.

  2. Mitch McConnell did this with his handling of SCOTUS appointments.

    Helluva legacy, Mitch, the destruction of democracy.

    Today is probably worse than Jan. 6.

  3. Oh the obvious paths so easily and conveniently ignored…

    You've left out all those who worked to get Reagan and the Bushes elected. All those who supported Gingrich, Delay, Cheney, Kissinger, and more. Those who dismissed Rush, Beck, O'Reilly and others as mere entertainers. The disgusting members of Congress and the media who opposed and vilified Obama for 8 years. Those who punched hippies for having the temerity to accurately observe that the Republican party was full of racists, misogynists, nationalists, bigots, christo-fascists, grifters, and imbeciles. Those who still think that we should pay homage to the contributors to the Bulwark and the Lincoln Project (all highly paid cheerleaders for the nasty people noted above, and who got bonuses for punching hippies,and are now holding influential positions at the NY Times, MSNBC, and more).

    If you spent any of your adult life actively supporting the Republican party, then you are to blame. After you accept your responsibility, and acknowledge that the dirty liberals have been right about the gop for 50-some years, maybe then we can evaluate how to distribute the residual blame.

    Meanwhile… vote blue no matter who…

  4. Heather Cox-Richarson:

    Today the United States Supreme Court overthrew the central premise of American democracy: that no one is above the law. 

    This is a profound change to our fundamental law—an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law. 

    But this extraordinary power grab does not mean President Joe Biden can do as he wishes. As legal commentator Asha Rangappa pointed out, the court gave itself the power to determine which actions can be prosecuted and which cannot by making itself the final arbiter of what is “official” and what is not. Thus any action a president takes is subject to review by the Supreme Court, and it is reasonable to assume that this particular court would not give a Democrat the same leeway it would give Trump. 

    There is no historical or legal precedent for this decision. The Declaration of Independence was a litany of complaints against King George III designed to explain why the colonists were declaring themselves free of kings; the Constitution did not provide immunity for the president, although it did for members of Congress in certain conditions, and it provided for the removal of the president for “high crimes and misdemeanors”—what would those be if a president is immune from prosecution for his official acts? The framers worried about politicians’ overreach and carefully provided for oversight of leaders; the Supreme Court today smashed through that key guardrail. 

    But it was not just McConnell who thought that way. At his confirmation hearing in 2005, now–Chief Justice John Roberts said: “I believe that no one is above the law under our system and that includes the president. The president is fully bound by the law, the Constitution, and statutes.” 

    In his 2006 confirmation hearings, Samuel Alito said: “There is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law.” 

    And in 2018, Brett Kavanaugh told the Senate: “No one’s above the law in the United States, that’s a foundational principle…. We’re all equal before the law…. The foundation of our Constitution was that…the presidency would not be a monarchy…. [T]he president is not above the law, no one is above the law.”

    Now they have changed that foundational principle for a man who, according to White House officials during his term, called for the execution of people who upset him and who has vowed to exact vengeance on those he now thinks have wronged him. Over the past weekend, Trump shared an image on social media saying that former Representative Liz Cheney (R-WY), who sat on the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, was guilty of treason and calling for “televised military tribunals” to try her. 

  5. It's really too bad Democrats are far too scared of their own shadows to do anything about this democracy-crushing ruling. They're so afraid of the right's reaction, they freeze. They're so afraid of decorum, they won't fight fire with even a spark, and that will cost us our country. Enjoy every moment for the next 6mos, because it only gets infinitely worse after the election. I dont think anything can stop Trump from winning now. Evil won. Smoke 'em if you got em.

  6. As far as I can see, no member of Congress, no governor, and no state legislator in Colorado has made a single statement condemning yesterday’s appalling ruling that effectively allows our president to be a dictator. Now, yes, it’s possible I have missed something. Apologies if I have.

    My point is that, as usual, Democrats will bring a butter knife to a gun fight and effectively do nothing. 

    What should be done is this:

    1. Schumer should end the latest of the Senate’s frequent paid vacations and get them back to DC, where a constitutional amendment overturning this ruling should be immediately introduced and heard in committee, then brought to the floor forthwith. No, the House won’t pass it and, really, neither will the Senate, but the discussion would begin and would get lots of attention.

    2. Democratic members of the House should do the same. No hearings will happen in a GOP House, but press attention would follow.

    3. State legislators should begin the process of launching an amendment “the other way,” from the states.

    4. The President should order Donald Trump arrested and detained on the charges for which he has already been indicted, in DC and Florida. And then the President should also order the arrest of all members of Congress who participated in the planning for the January 6, 2021 insurrection and order Rip Van Garland to get the grand jury rolling on an indictment. Arrests on what is known as an “information” are usually possible, but even if the arrests have to wait for indictments, fine. Just make it snappy already.

    5. The President should also order the FBI to begin an intensive investigation of the financial behaviors of Mr. Alito and Mr. Thomas and direct the Justice Department to prosecute if sufficient evidence to believe a crime was committed is found. Mr. Alito and Mr. Thomas should be arrested and detained pending trial. And if SCOTUS says “release them,” Mr. Biden should invoke his “take care” power under the Constitution – one of those powers declared yesterday to be a gateway to immunity – and tell SCOTUS “I don’t care if you hold me in criminal contempt when I refuse. I’m immune.”

    6. The Chairman of the Joint Chiefs of Staff and the senior flag officers in each of the armed forces should call a press conference and make clear that a reading of the Constitution that gives the President “absolute immunity” for breaking the criminal law in his role as commander in chief is unacceptable to the military. They should remind the Supreme Court that, in fact, the actual defender of the Constitution and of the republic, to say nothing of our freedom, is the military. I am tempted to say that the military should take Trump into custody and charge him under the UCMJ for stealing and probably sharing classified documents, but I don’t see the military leadership being willing to go that far and, besides, the Supreme Court could invalidate any conviction under the UCMJ.

    7. Mr. Biden should remind the nation, often, that this decision’s impact will not go away if he is reelected. After all, the Supreme Court won’t magically change if he is. And, even if the membership of that court does change, it will take time for that to happen and even more time to get another case before the justices in which this absurd decision can be reconsidered. A DeSantis, Cotton, Cruz, Vance, et al. presidency beginning in January 2029, to say nothing of any other future president down the road, could and likely would use this ruling to inflict significant harm on Americans.

    Quit being complacent and lazy, Democrats.


    1. Text of the proposed amendment:

      “Neither the President, Vice President, nor any other officer of the United States shall be excused or immune from liability for crimes against the United States.”

    2. What difference would it make? You can condemn the ruling all you want and other than making you feel better about yourself, what difference does it make?

      When Thomas and Alito decided that they did not need to recuse because of their financial and/ family conflicts of interest, it established that absolutely nothing matters except achiving the desired objective. (Ironically, Thomas and Alito could have recused on the immunity case and it would have ended in a 4 to 3 decision in favor of immunity. In other words, they didn't even need to place their fingers on the scale in order to win.)


    3. I completely agree. Didn’t the Justices, themselves, urge the president to consider “bold” decisions? We all know they understood perfectly that Joe Biden could use their ‘”gift” to the presidency. I am also quite confident the calculation over there is that Biden won’t play that card.

      FBI agents should show up at Ginni Thomas’ door tomorrow with a warrant for her arrest on sedition charges, or whatever legal vehicle the government can select. Impeachment articles should be filed…

      I agree with you. The forces of good need to get organized and get busy. The soldiers of Christian Nationalism aren’t going to pull up short and stop, until someone stops them. The national Democratic party is wimping out because they owe so much to Donnies’ billionaires and the K Street machine. Our leadership is failing us.

      Let’s stop focusing on the side show that is Donald J. Trump and focus on the people pulling the strings. The Heritage Foundation, the Federalist Society, and their ilk, propel the MAGA movement, and the government of the United States must stop them. The people of this Union must, sadly, once again defend our nation from traitors among us.

      Vote Blue..

      No Matter Who!


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