In dissents from the Supreme Court’s decision on presidential immunity, the court’s liberal justices suggested the majority opinion permitted a range of terrifying scenarios, such as a president ordering Navy SEALs to “assassinate” a political opponent or even poisoning a cabinet member.
The Supreme Court ruled 6-3 on Monday that the president has substantive immunity for acts committed while in office, a decision with significant implications for former President Trump, who has been indicted on charges related to the January 6th breach of the U.S. Capitol and alleged interference in the 2020 presidential election, and the Supreme Court is set to hear the case.
But Chief Justice John Roberts’ majority opinion made clear that the president is “not above the law” and immunity is a factor only when “official acts” are involved – the justices sent the case back to a lower court to decide whether the conduct at the heart of Trump’s lawsuit was “official” – but the three dissenting justices said the decision raised a series of frightening possibilities.
In dissent, Justices Sonia Sotomayor, Ketanji Brown Jackson and Elana Kagan wrote that the court’s majority opinion “makes a mockery of a fundamental principle of our Constitution and political system: that no person is above the law.”
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U.S. Supreme Court Justices Sonia Sotomayor and Amy Coney Barrett (not pictured) speak with moderator Eric Liu, co-founder and CEO of Citizen University, during a panel discussion at the Civic Learning Week National Forum at George Washington University on March 12, 2024 in Washington, DC. (Jahi Chikwendiu/The Washington Post via Getty Images)
“The President of the United States is the most powerful person in the country, and perhaps the world. Whenever he exercises any form of public power, the majority reasoned, he is henceforth immune from criminal prosecution,” Sotomayor wrote. “Ordered Navy SEAL Unit 6 to assassinate a political opponent? Immunity. Plotted a military coup to stay in power? Immunity. Accepted bribes in exchange for a pardon? Immunity. Immunity, immunity, immunity.”
She continued, “Let’s allow the president to break the law, to use the perks of his office for his own personal gain, and to abuse his public power. Because if he knew that he might one day be held accountable for breaking the law, he might not be as bold and fearless as we would like to be. That is the message of the majority today.”
Sotomayor added that the majority’s decision “irrevocably altered” the relationship between the president and the American people, making “the president now a king above the law in the exercise of all public power.”
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Supreme Court Justice Ketanji Brown Jackson (Tom Williams/CQ-Roll Call, Inc via Getty Images)
A footnote in another dissent written by Jackson contains yet another startling scenario.
Jackson noted that a president’s firing of a cabinet member is a public act, saying, “For example, a president may have the power to decide to fire the attorney general, but the question is whether the president has the option to remove the attorney general in some way, such as by poisoning him.”
She added: “In other words, the issue here is not whether the president has exclusive removal power, but whether a generally applicable criminal law prohibiting murder can limit the president’s exercise of that power.”
Sotomayor’s conclusion sums up the general tone of her and Jackson’s writings: “I oppose it out of fear for our democracy.”
Both dissents were criticized by the Court’s majority opinion.
“The dissent exudes a chilling sense of doom that is completely out of proportion to what the Supreme Court currently does in practice,” Justice Roberts wrote.
He added, “The dissent, without sufficient arguments, repeats the charge that the Supreme Court has placed the President ‘above the law.'”
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Former President Donald Trump speaks during the Independence Day Spectacular, Friday, June 30, 2023, in Pickens, South Carolina. (Sam Wolf for The Washington Post via Getty Images)
Roberts added that the dissent “lacks logical merit,” writing, “Ultimately, the dissent ignores the Constitution’s separation of powers and Supreme Court precedent and engages in little more than fear-mongering based on extreme hypotheticals about a future in which a president “will feel empowered to violate federal criminal law.”
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Sotomayor’s dissent was quickly spread across social media, with former Secretary of State Hillary Clinton, who lost to Trump in the 2016 election, posting on X that she agreed with Sotomayor’s stance against the “MAGA” side of the Supreme Court.
“It is up to the American people this November to hold Donald Trump accountable,” Clinton wrote.
