The Supreme Court ended its term divided along partisan lines, with Republican appointees ruling in favor of former President Trump's claim to immunity while all three Democratic appointees expressed bitter dissent.
It's exactly the outcome that many critics of the court might have hoped for, with politics driving the law. It's also what Chief Justice John G. Roberts Jr. has tried hard to avoid — at least most of the time.
For much of this year, Roberts and the justices have managed to defuse partisan divisions with narrow or procedural decisions.
By a 9-0 vote, they dismissed a lawsuit in Texas seeking to prevent millions of American women from obtaining abortion pills. They denied the right to carry weapons to people under a domestic violence restraining order in an 8-1 decision.
But the chief justice did not try to overcome the partisan divide in Trump v. United States. He squandered the opportunity for a narrow consensus offered by Judge Amy Coney Barrett that might have swayed the court’s liberals.
Barrett, a former Notre Dame law professor, saw no need for a broad ruling on presidential immunity in Trump's case.
“Properly conceived, the president’s constitutional protection from criminal prosecution is limited,” he wrote in a concurring opinion. “The Constitution does not insulate presidents from criminal liability for official acts.”
Yes, the president cannot be prosecuted for exercising his “fundamental” constitutional powers, he said, agreeing with the conservative majority on that point.
But he said the court case focused on Trump's effort to overturn his election loss by, for example, encouraging Republican state lawmakers to create fake lists of electors claiming that Trump, not Biden, won their state.
Barrett said this was “private conduct.” “The president has no authority over state legislatures” and the Constitution offers Trump “no protection from prosecution for acts committed in a private capacity.”
That was precisely the kind of middle ground Roberts usually seeks, but he dismissed it instead.
The court must uphold “enduring principles” related to the “separation of powers and the future of our Republic. (…) We cannot afford to focus exclusively, or even primarily, on current demands,” he said, referring to the case before the court.
It was not the first time Barrett has distanced herself from Roberts this year in a high-profile case involving Trump. A week ago, Barrett disagreed with Roberts and said she would have upheld obstruction charges against Trump supporters who stormed the Capitol on Jan. 6, 2021. She said Roberts did “text-message bending” to ignore what the law said.
Why did Roberts and the four conservatives to his right insist on a broad ruling on presidential immunity?
Unlike Barrett, all five have worked in Washington under Republican administrations and are attuned to how politics drives most investigations involving presidents and their administrations.
Roberts and Judge Brett M. Kavanaugh served as White House counsel for Republican presidents.
Justice Neil M. Gorsuch was in high school when his mother, Anne Gorsuch, was forced to resign as administrator of President Reagan’s Environmental Protection Agency. House Democrats had voted to hold her in contempt for refusing to turn over documents at the behest of the White House related to hazardous waste dumps.
Justices Clarence Thomas and Samuel A. Alito Jr. came to the court after acrimonious confirmation hearings in which they clashed with then-Senator Joe Biden (D-Del.). More recently, they have been constant targets of Democrats for their undisclosed vacation trips paid for by billionaires. They were the most likely to vote in favor of Trump’s broad claim to immunity.
Many Republicans, not just Trump supporters, viewed the proceedings against the former president from a political perspective. Never before, they said, had a former president of one party been charged with crimes by the administration of the party that replaced him.
What's more, the Trump case took shape last year, as the former president was preparing to run against the Democratic president who ousted him.
In November 2022, Trump announced that he would run for president again. Biden said he would run as well. Biden's attorney general, Merrick Garland, then appointed Jack Smith, a very aggressive prosecutor, as special counsel to investigate Trump's actions following the 2020 election.
Last August, Smith accused Trump of conspiring to overturn his election loss and requested a fast-track jury trial for early this year. He also charged Trump in Florida with mishandling secret and highly classified documents.
Meanwhile, in New York, Manhattan District Attorney Alvin Bragg, an elected Democrat, charged Trump with 34 felony counts for false accounting entries intended to conceal payments to a porn star. New York State Attorney General Letitia James, a Democrat, sought and obtained a $355 million civil penalty against Trump for allegedly inflating his assets. In Georgia, Fulton County District Attorney Fani Willis, an elected Democrat, indicted Trump and 18 others on state racketeering charges related to the 2020 election.
Democrats and progressive groups cheered the indictments as a sign that Trump was finally being held accountable in court for his misdeeds. They were unprepared for what happened when Trump’s case reached the Supreme Court.
In early December, the special counsel asked the justices to immediately hear Trump’s claims. He said it was of “imperative public importance” that the case move quickly toward trial. Two weeks later, his appeal was rejected without comment.
In February, the U.S. appeals court in Washington said the case could go forward, but the Supreme Court put it on hold and scheduled arguments for late April on Trump's claim of presidential immunity.
Those arguments and this week's opinion made clear that Roberts and the conservative justices viewed the issue through an entirely different lens than liberals and Democrats.
“No president has ever faced criminal charges, let alone for his conduct in office,” Roberts said. Responding to a fierce dissent from Justice Sonia Sotomayor, he said she was engaged in “fear-mongering” that ignores the “more likely prospect of a self-cannibalizing executive branch, with each successive president free to prosecute his predecessors.” He foresaw “the weakening of the presidency” and “a cycle of factional fighting.”
Roberts concluded by noting that the newly declared immunity for presidents “applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.”
What poses the greater danger to the nation: a president who can break the law knowing he is forever protected from prosecution, or a president under constant threat of prosecution after leaving office by partisan opponents?
Irv Gornstein, a Georgetown law professor and director of the Supreme Court Institute, said that question explains a lot about the outcome.
“If you believe that prosecuting former presidents for retaliation poses a greater risk to the presidency and democracy than prosecuting Trump, you probably think that presumptive immunity for all official acts makes sense,” he said. “But if you believe that Trump is the greater threat, as many Americans surely do, you probably think that the court cares more about Trump and his reelection prospects than it does about democracy and the rule of law.”
“When a significant portion of the public has already lost confidence in the court, that is something the court should be concerned about,” he added.
Many critics on the left said the chief justice had made a colossal error of judgment that would cast a shadow over his career.
Quinta Jurecic and Ben Wittes, writing on the Lawfare blog, called it a “decision to overcome recklessness in dangerous times.”
“The Court majority may boast that it stays out of politics, but that is a fairy tale the justices are telling themselves — if, in fact, they are telling themselves this pleasant tale,” the two justices said. “In effect, they are granting powerful immunity to a judged criminal who may be on the verge of assuming the executive power of the United States.”
Harvard Law professor Jack Goldsmith, a top Justice Department lawyer under President George W. Bush, responded that it won’t be clear for some time whether the court made the right decision, but said Democratic lawyers made a mistake by relying on the courts to stop Trump.
“For many years, it has been a fantasy to think that courts and prosecutors can purge the nation of a populist demagogue who defies the law,” he said. “Only politics, not the law, can do that.”
