Stanford University Press authors weigh in on Trump v. United States
In light of the Supreme Court's recent decision on presidential immunity, we have gathered a small selection of responses from our authors.
The Supreme Court’s immunity decision provides another example of how autocrats defeat checks and balances by capturing apex courts. We’ve seen the same thing act as a prelude to the loss of democracy in Hungary and many other countries.
If Trump is elected, this opinion offers him opportunities to rapidly vanquish democracy. The dissent pointed out that the Court’s rulings allow the President to order Navy Seals to assassinate a political rival or initiate a coup without fear of criminal sanction. Steven Bannon has claimed that Trump will use the Insurrection Act to put down demonstrators if he is elected, and Trump has confirmed this, saying that he plans to establish a dictatorship for one day. This ruling frees Trump to order troops (or a paramilitary force drawn from immigration agencies if the military refuses) to fire upon demonstrators without fear of any consequences, which would go a long way toward establishing the fear necessary to sustain a dictatorship.
Trump has promised to follow the pattern of autocrats around the world by using investigation and prosecution of innocent political opponents to sideline them. A constitutional custom has long prohibited Presidents from making decisions about whom to investigate or prosecute. Functional democracies always obey such norms. This custom led the Department of Justice (DOJ) to resist Trump’s requests to investigate or prosecute Trump’s political opponents during his first term when there was no evidence of any crimes.
But the immunity decision undermines the constitutional norm against presidential direction of prosecution. Justice Roberts stated that “the President may discuss potential investigations and prosecutions with his Attorney General and other DOJ officials.” His opinion identifies investigative and prosecutorial decisionmaking as part of the executive power vested in the President, without any mention of the norm aimed at preventing its abuse.
Trump’s Supreme Court has become an enemy of the Constitution and the rule of law. It now resembles the courts that have hastened the end of democracies in many countries after an elected autocrat has appointed many of their members.
The six conservative members of the Supreme Court took the country into uncharted territory this week in Trump v. United States when they found that former presidents, like Trump, are entitled to broad immunity protections from criminal prosecutions for actions taken while president. But this wasn't the first time many of those justices had opined on the scope of presidential immunity. Each of the justices nominated by Trump - Justices Gorsuch, Kavanaugh, and Barrett - were interrogated during their confirmation hearings about exactly that question. Justice Alito and Chief Justice Roberts also offered thoughts at their hearings.
Nominees’ hearing statements are always cautious and filled with caveats and disclaimers, and these statements on presidential immunity were as well. Nonetheless, the overall tenor of the comments was notably different than that struck in their recent opinion.
Gorsuch, asked if President Trump could be prosecuted for violating a federal law against waterboarding, first refused to speculate but then, when prompted by a senator, immediately agreed that "No man is above the law." Kavanaugh, defending a law review he had written, stressed that no one (including presumably him) "thinks about immunity" because "no one's above the law." That's "just such a foundational principle of the constitution and equal justice under law. ... No one is above the law in the United States of America; the President is subject to the law." Barrett, asked whether the president had a right to pardon himself for a crime, agreed that "no one is above the law."
Roberts and Alito, both appointed by George W. Bush, made similar comments at their hearings. Roberts affirmed 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." But it was Alito who was asked perhaps the most pointed question. Can a President, Senator Leahy asked, "authorize somebody, either from an intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a Presidential pardon?” Justice Alito's answer? "Neither the President nor anybody else, I think, can authorize someone to - can override a statute that is constitutional." Do you believe the President is above the law, Senator Grassley followed up. "Nobody in this country is above the law," Alito answered, "and that includes the President.”
Or at least it did.
In Presidential Leverage, I describe “institutional inversion”[1] as one of the most “profound” changes in American politics (ch. 3, esp. pp. 41-43). The presidency has become the most powerful, preeminent institution in the American system without a word being changed in the Constitution, (other than election and succession), though the Framers placed most political power in Congress. Regardless of how one feels about the current and/or former president, the Supreme Court’s non-originalist and atextual decision in Trump v. U.S. even further strengthened the presidency. Now, I am no originalist nor am I a textualist. I am, in fact, a proponent of a strong, energetic presidency. And here, the majority stresses that presidents enjoy no immunity from criminality in their private actions, but are absolutely immune from criminal prosecution when exercising their “core” constitutional powers.
But there is an ill-defined middle ground, which leaves it to courts to discern where that is. The dissents show, this is an enormous grant of undefined power to presidents, especially when presidents are “absolutely immune” from prosecution for their communications with, among other things, the Department of Justice. How do courts decide what is private and what is official, beyond their “core” functions of vetoing, pardons, and so forth? The dissents suggest various scenarios and, regardless of how realistic they might be, the majority offers precious little guidance in making that determination. These protections cover all presidents, but that’s the point—how far can presidents go?
Justice Sotomayor dissent adopts Justice Robert Jackson’s own dissent Korematsu v. U.S., when she wrote “This new official-acts immunity now ‘lies about like a loaded weapon’ for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.” But as Justice Kagan said in oral argument, the Framers knew immunity and how to incorporate it, as they did with the Speech and Debate clause in Congress. They chose not to. Presidents should get some immunity, but where is it, and should it be the presidential decriminalization of what may well be criminal actions, with their definition hinted at but not established by the Court? The lack of demarcation or clear instruction to lower courts about where that line is adds to an undefined residuum of presidential power which has spilled well beyond the four corners of the Constitution.
[1] Jonathan Bernstein also uses the word, “inversion,” to describe the phenomenon.
History hails a moral rebel and deplores a wicked tormenter. Think David and Goliath. Joseph N. Welch and Senator McCarthy. Han Solo and Jabba the Hutt.
In 1803, Chief Justice John Marshall was the moral rebel and Thomas Jefferson the wicked tormenter. The case was Marbury v. Madison. President Jefferson claimed he had the power, under Article II, to disregard William Marbury’s “midnight appointment” because “presidential discretion” permitted the White House occupant to make unilateral decisions that were supposedly in the best interest of the nation. Presidential prerogative, the argument went, shielded the chief Executive from exactly the type of litigation brought on by Mr. Marbury.
Marshall disagreed, insisting that the United States is a “government of laws, and not of men.” He scolded the President for violating Mr. Marbury’s rights. He embarrassed the President for believing that he was above the law. He condemned the President for putting his interests over that of the nation. And then he let Jefferson win. Indeed, Marshall fashioned a paragon of judicial statecraft, one that simultaneously smote the bully from Charlottesville and still ensured that the crucial constitutional rule—namely judicial review—would endure. The real champions in the Marbury case were the foes of tyranny.
Fast forward to today. America’s wicked tormenter—Donald Trump—got the best of our moral rebel, Chief Justice John Roberts. Or, perhaps more accurately, Roberts lay down at the feet of this country’s biggest bully. The case is Trump v. United States, and the conservative majority, led by the Chief, seemingly spurned all the lessons taught by John Marshall. In granting presidents immunity for all “official” acts, the Court sanctioned possible lawlessness and deceit. The majority authorized presidential corruption and vice. Those same foes of tyranny who were triumphant in 1803 were heartbreakingly vanquished in 2024.
In the end, Chief Justice Roberts’ cavalier dismissal of Justice Sotomayor’s anguish says it all. The dissents’ concern, Roberts declares, is nothing more than “fear mongering on the basis of extreme hypotheticals about a future where the President ‘feels empowered to violate federal criminal law.” What he flouts is the stark reality that America’s likely next President makes Thomas Jefferson look like a saint.
makes the case that the richest, most democratic nations would be better off if they slightly reduced accountability to the voting public, turning up the dial on elite influence.
With Trump v. United States, the Supreme Court made it official: the Constitution grants U.S. presidents sweeping immunity for their official actions. Is this good or bad for the quality of governance in the U.S.?
Well, is it good or bad for a president—or ex-president—to be far from the grasp of jury trials and prison sentences for decisions that are part of the job of president? The answer is pretty easy, and the Supreme Court majority got it right:
“Such an immunity [which is not absolute!] is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.”
A president worried that one excessively violent arrest, one mistaken drone strike, or one failure to spend appropriated funds in a timely manner could lead to a criminal trial years after leaving office would create a presidency paralyzed.
And just as the Court got it right, so too did Hamilton in Federalist No. 70:
“Energy in the Executive is a leading character in the definition of good government.”
Hamilton learned that fact from both the theories of Montesquieu—who famously pushed for “vigor” in the executive leading a government—and from the practices of America’s weak Articles of Confederation, a government with a weak president unable to even respond to letters without the explicit permission of Congress.
Of course, a president fearful of distant future prosecution, whether that prosecution be politicized or sincere, would exhibit some of the same torpor and timidity America lived with under the Articles of Confederation.
The U.S. Constitution created a strong presidency, accountable primarily to the electoral college—and indirectly, to the masses. The Constitution struck that balance between democracy and oligarchy in 1789. By clarifying what had long been implicit—that courts and juries can’t routinely second-guess the actions of the powerful oligarch we call the President of the United States—the Supreme Court has reminded citizens that good government requires a sizable dose of unaccountable oligarchy.
shows that it is their unique perspective as Black justices – the lives they have lived as African Americans and the rooting of their judicial philosophies in the relationship of government to African Americans – that makes this succession echo across generations.
Buried within the battle between the majority and dissenting opinions in Trump v. United States about whether the prospect of a President ordering Navy Seals to assassinate political rivals was a grave threat or mere fearmongering is a concurring opinion by the justice who has been pointing the way for the Court’s conservative majority for decades. While joining the majority opinion, Justice Clarence Thomas also penned a solo concurrence – not only does Justice Thomas endorse the more expansive view of presidential immunity embraced by the Court, he would go a step further to disable the special counsel’s investigation of President Trump altogether. In the past two decades, the reasoning in Justice Thomas’s solo opinions have had a tendency to show up years later in the Court’s majority opinions, but this time, it may be on a faster track.
The most notable example of the reasoning in a Thomas concurrence showing up later came in Shelby County v. Holder, where the Court struck down a portion of the Voting Rights Act using arguments Thomas had made in a voting rights case years earlier. Then, Thomas penned another solo concurrence in Shelby County itself, demonstrating how even in cases in which Justice Thomas votes with the majority, he often signals a willingness to go significantly further. That pattern was repeated in the 2022 overruling of Roe v. Wade, where Thomas authored a concurrence indicating that the entire area of substantive due process (an area that protects the right to same sex marriage among other personal liberties) should be jettisoned.
In the immunity case, Thomas called into question the legality of a president (Biden) appointing a special counsel (Jack Smith) without such an “office” first being created by Congress “by law.” To Thomas, it is the prosecution of potential abuses of presidential power (at least in this manner) that seems the graver abuse of presidential power.
Trump’s lawyers pushed the argument in the lower court, while Smith asked district judge Aileen Cannon to disregard Thomas’s concurrence. But two weeks after the Court’s immunity decision, Judge Cannon dismissed the case. The reason: the appointment of Smith was unconstitutional, precisely for the reasons Justice Thomas had argued. The case is now on appeal (again) at the 11th Circuit Court of Appeals, but it could end up back at the Supreme Court soon. Has Justice Thomas once again planted the seed for a future Court opinion? If so, the fate of Trump’s prosecution will rest on whether Justice Thomas can convince his colleagues – as he has in the past – that a position he once staked on his own should be the law of the land.
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