Two of the Supreme Court’s most conservative justices may have opened the door to undoing one of President Donald Trump’s biggest legal wins.
Justices Clarence Thomas and Samuel Alito are reportedly staying on the bench this year, a choice that MS NOW legal analyst Jordan Rubin argued Friday could cost Trump and the outgoing Republican Senate majority their chance to replace them and potentially set up a future court that reverses the 2024 presidential immunity ruling in Trump v. United States.
Rubin, a former Manhattan prosecutor, took up the question in his “Ask Jordan” feature after a reader asked whether a later court could toss the decision and whether Trump could then face charges.
Democrats will take control of the Senate in January, and Rubin noted there’s no telling when Republicans will again hold both the Senate and the White House. Should a Democrat capture the presidency in 2028 and fill the seats held by Thomas and Alito, the court’s 6-3 conservative majority would become a 5-4 majority of Democratic appointees, assuming no other vacancies.
Rubin pointed out that Justice Sonia Sotomayor, the Obama appointee who led the liberal dissent in the immunity case, recently said that she hopes to see the ruling overturned during her lifetime.
But Rubin cautioned that justices can’t simply reverse a precedent on their own initiative. They need a live case to do it, but presidential immunity rarely comes up in court, since former presidents are seldom prosecuted.
One possible vehicle is Trump’s appeal of his New York hush money conviction, which partly rests on immunity grounds and is pending in an intermediate state appeals court. That case concerns a narrower question about whether prosecutors improperly relied on evidence of official acts, but Rubin suggested a Democratic-appointed majority could use it to scrap the broader precedent anyway.
As for prosecuting Trump himself after he leaves office in 2029, Rubin described that as a long shot. Any revived federal case could get bogged down in fights over the statute of limitations or a possible self-pardon, and Trump would be well into his 80s before any trial began.
“The reality is that Trump’s 2024 election victory may have saved him,” Rubin wrote.
Still, he added, a future court could overturn the ruling so later presidents don’t enjoy the same protection.
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