The announcement of the Presidential immunity decision today in Trump versus United States was a grim affair. As a first-time audience member for the announcements of high court opinions, I was surprised by the repeated “shushing” from SCOTUS security before the court session even started to an already quiet courtroom. Only very soft subdued conversations were happening mostly between lawyers who were sitting in the section reserved for members of the Supreme Court bar and there was almost no conversation in the public section.
The “shushing,” however was delivered by security facing the public with their backs to the lawyer section and the dais where the justices would be sitting. In other words, only the public was being warned to be silent. Of course, decorum is important at the high court—as it is in any courtroom— but the preemptive warning to the public seemed needless: much ado about something that had not happened. It would prove to be a metaphor for the majority opinion that Chief Justice John Roberts announced from the bench when court did start.
In an opinion that likely placed the last nail in the coffin of Special Counsel Jack Smith’s chances of getting the Jan 6 case against Trump tried before the election, the Chief Justice wrote for a majority comprised of the right-wing majority: Alito, Thomas, Kavanaugh, Gorsuch (absent without explanation), and Coney Barrett (more personable than expected—she even joked with the public about the opinion she announced as not being the one everyone was waiting to hear).
In his opinion, Roberts made clear that U.S. Presidents must be granted complete immunity for acts that fall within the powers assigned exclusively to Presidents, allowed for the possibility that Presidents might undertake non-official acts for which they might be prosecuted but concluded that the high court doesn’t know enough about the Jan 6 events to determine which of former President Trump’s actions might subject him to prosecution. Therefore, as many experts had predicted, the case was kicked back to the lower courts to figure those parts out first (after which those decisions will no doubt again be appealed to the Supreme Court).
Wrote Roberts: “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceeding in this case, however, we need not and do not decide whether that immunity must be absolute.”
A foundation of the ruling is Roberts’ handwringing over how the threat of potential criminal accountability would cause a President to experience “hesitation to execute the duties of his office fearlessly and fairly,” and that “The Framers’ design of the Presidency did not envision such counterproductive burdens on the “vigor[]” and “energy” of the Executive” (citing to the Federalist No. 70).
Of course, as Roberts notes at the very start of his analysis, no criminal prosecution of a President for what he did in office has ever happened before which means we have gone two centuries with Presidents unprotected from a danger that has never happened. That’s the needless “shushing” analogy.
Roberts read from his opinion in a matter-of-fact way, while his conservative majority mostly looked detached or preoccupied. Justice Thomas sometimes leaned back appearing to rest his eyes while Justice Alito seemed to busy himself with something in front of him with an air of smug satisfaction. Justice Kavanaugh kept his head attentively turned towards Roberts as the Chief Justice read, with an expression that reminded me of a college student trying to look like that were paying attention by sitting in the front row. Justice Coney Barrett, perhaps anticipating the coming discomfort of Justice Sonia Sotomayor’s dissent, looked straight ahead, emitting a distinctly less carefree vibe than when she quipped about her own opinion.
As Justice Sotomayor began to read her dissent, the atmosphere in the courtroom grew palpably more tense. In a powerful dissent joined by Justices Ketanji Brown Jackson and Elena Kagan, Sotomayor called out the majority’s lack of legal reasoning, writing: “[a]rgument by argument, the majority invents immunity through brute force” and calling the majority’s conclusions “utterly indefensible.”
Pointing out the majority claims of starting with an assessment of how the Constitution treats Presidential power sound fake given that the Constitution says nothing about immunity for Presidents, Sotomayor punctuated her reading by at times turning directly towards her conservative colleagues on her left, seeming to focus particularly on Chief Justice Roberts. During these moments, Coney Barrett, physically separated from her fellow conservatives by Gorsuch’s empty chair and Sotomayor, stared stiffly ahead at some point in the back of the courtroom where the 44-foot high ceiling meets the garish red velvet drapes that run ceiling to floor.
“With fear for our democracy, I dissent.”
— Justice Sonia Sotomayor
Sotomayor’s dissent sets forth the potential parade of horribles unleashed by the majority’s ruling. Referencing the now immortal hypothetical posed by D.C. Circuit Judge Florence Pan at the Court of Appeals argument, Sotomayor wrote about the President: “When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military to hold onto power? Immune. Takes a bribe in exchange for a pardon. Immune. Immune, immune, immune.”
In her powerful conclusion, Sotomayor wrote: “With fear for our democracy, I dissent.”
Tellingly, she omitted the traditional use of the word “respectfully” which is a traditional salutation used in dissent closings. Justice Jackson’s dissent, in which see wrote: “I agree with every word of [Sotomayor’s] powerful dissent” also chose the same omission of the word “respectfully.”
I said at the outset that this was a grim affair, and it was. The excited feeling of anticipation in the courtroom had completely drained out of the room by the time the announcements ended. A list read by Chief Justice Roberts thanking court staff, his colleagues and noting retirements seemed to drag on. Even Robert’s misspeak, in which he accidentally referred to his colleague justices as employees produced only a few laughs.
In Sotomayor’s strong prose, I heard a tone of not just anger but isolation. The isolation of a jurist powerlessly watching the high court taken over by the brutish power of a conservative majority decades in the making. Never was that isolation clearer than in the numerous times Justice Sotomayor turned directly towards Chief Justice Roberts as she spoke. In normal conversation, when someone turns directly toward you as they speak, it is common to look back at them, perhaps even nod or smile to make them feel included and acknowledged. But Roberts never so much as looked back at her, his fellow Justice. I guess he saw no need.
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