The US Supreme Court has made a hugely significant and equally controversial judgment. It is one which could affect the results of the 2024 election, the rule of law and democratic institutions in the United States and shape the powers of the nation’s highest office for years to come.
In its ruling on presidential immunity, relating to a case brought by the US special counsel, Jack Smith, alleging that Donald Trump had attempted to subvert US democracy by interfering in the results of the 2020 election, the nine-member supreme court, led by the chief justice, John Roberts, appears to have effectively deteriorated into a personal court for Trump. It can no longer be seen – as it has since it was first founded in 1789 – as an impartial guardrail to protect American citizens from autocratic power grabs.
The majority judgment of the court argued that former presidents are entitled to some degree of immunity from criminal prosecution. The decision predictably fell along ideological lines of six to three, with Elena Kagan, Sonia Sotomayor and Ketanji Brown strongly dissenting. In her dissent, Justice Sotomayor wrote that the ruling makes a “mockery of the Constitution”.
But, given that three of the nine justices were appointed by Trump himself, this outcome is in some ways not surprising. Since Trump reshaped the supreme court with the appointment of three ideologically conservative justices, Neil Gorsuch (appointed 2017), Brett Kavanaugh (2018) and Amy Coney Barrett (October 2020, at the height of that year’s presidential campaign) an array of long-time iron-clad supreme court decisions have been upended.
These have included voting rights, affirmative action, gun control and environmental regulation. Perhaps the most controversial, though, was the court’s decision to overturn Roe v Wade, the 1973 decision that guaranteed womens’ right to abortion.
With this new pliant supreme court line up in place, something once unthinkable in US politics is coming into view. Supreme court precedents only matter as long as there are justices that personally and politically agree with decisions.
Matter of judgment
When it was announced at the end of February that the court would hear arguments in April on presidential immunity, many legal commentators were surprised. Retired federal judge J. Michael Luttig told MSNBC that: “There was no reason in this world for the Supreme Court to take this case.” He added that the court of appeals for the District of Colombia had written a “masterful opinion denying the president’s claims of absolute immunity.”
There was also concern at the relatively slow pace with which the Supreme Court dealt with such an urgent matter, under the circumstances and with a presidential election campaign imminent. Harvard law professor, Lawrence Tribe claimed that the court, was intentionally dragging its feet.
This all played into Trump’s primary strategy of trying to delay his various trials until after the election. As the election interference trial in Washington DC should have taken place in March, this strategy appears to have succeeded.
So now, given the Supreme Court ruling, the election interference trial is highly unlikely to conclude before the election in November. Given how close the race is, this trial’s conclusion was important to offering voters a definitive answer to the question of whether Trump was guilty of trying to overturn an election.
This judgment held that Trump is protected from prosecution for “official” actions (even if they extend beyond what is termed the “outer perimeter of office”) or matters that are tangentially related to the official duties.
So while any actions taken by a president that are considered to be “unofficial” are not considered exempt, the boundaries of what was official and unofficial are now held to be open to interpretation and the court’s judgment has given fairly broad parameters for this.
In addition, any criminal trial against a president would have the burden of proving that the case “posed no danger to the intrusion of the authority and functions of the president”.
‘Disaster for democracy’
As the US president, Joe Biden, himself said this Supreme Court judgment is incredibly consequential for US democracy. It could embolden future presidents to use the office for personal gain and engage in criminality, since violations of the law are now protected under a this vaguely and broadly defined concept of presidential immunity.
Everything we now know that disgraced former president, Richard Nixon, as part of the Watergate scandal could have been defended as part of an official act. Gerald Ford would have had no need to pardon him.
If Trump wins the election in November (and polls seem to indicate he will), he can order the justice department to drop the charges. Or he could try to pardon himself. There are now also concerns that Trump can appoint a loyalist attorney general and weaponise the justice system against his opponents.
According to the Supreme Court ruling, all of these official acts could be permitted and would be immune from prosecution.
Though Trump claimed triumphantly that this was a big win for democracy, most legal experts would disagree. Dissenting Supreme Court justice Brown wrote in her opinion that this is a “five-alarm fire that threatens to consume democratic self-governance”.
The only thing that could have made this decision more in sync with what you’d expect from an authoritarian regime would have been if the Supreme Court had ruled that it’s only Trump who enjoys presidential immunity.