Federalist judges claim to loathe judicial activism. To preserve the separation of powers, federalist judges restrict their rulings to the narrow set of facts and laws in front of them, and go not an inch further, lest their rulings impinge on the executive or legislative function. Yet to find criminal immunity for Donald Trump, the Supreme Court’s federalist majority bucked all traditional and supposed originalist leanings, announcing instead that the court would be “writing a rule for the ages,” and dealt an astonishing blow to the U.S. Constitution.
After overturning Roe v. Wade for the sin of imposing “on the entire country a detailed set of rules for pregnancy divided into trimesters, much like those that one might expect to find in a statute or regulation,” the Court did the very thing it just ruled unconstitutional: it imposed on the entire country a detailed set of rules for presidential immunity, divided into three stages, exactly “like those one might expect to find in a statute or regulation.”
After declaring that the right to obtain an abortion was not “rooted in the Nation’s history and tradition,” the Court set 248 years of the Nation’s history and tradition on fire.
The Roberts Court wrote new law
With the stroke of a pen, federalists on the high court skipped the arduous but constitutionally required process to amend the Constitution, skipped ratification by 2/3 of the House and Senate, skipped the Constitutional convention, skipped two-thirds of the nation’s State legislatures altogether, and simply rewrote Articles I, II, and III of the U.S. Constitution to create the following three stages of presidential immunity:
- Absolute criminal immunity, which attaches whenever a former President acts within his “conclusive and preclusive” constitutional authority. Any action undertaken under color or shade of the Constitution or laws is a function of core constitutional power, and Trump is free to break all criminal laws (bribery, treason, assassination, hoarding classified documents, siccing the military on protestors, selling secrets, subjecting critics to military tribunals and executions) as long as he does so in pursuit of his core presidential duties, which are vast and comprehensive.
- Negotiations with foreign governments in particular fall exclusively under the presidential domain of Art. II, even if treasonous, and remain immune from criminal prosecution no matter the scope of national injury.
- Presumptive immunity, which attaches to other official acts and shifts the burden to the government to show that criminal prosecution would not create a “danger of intrusion” on the authority and functions of the Executive branch. When Trump tried to pressure former vice president Mike Pence to stop the electoral count and adopt fraudulent electors, for example, Chief Justice Roberts said he was “presumptively” immune, a presumption the government could fight to rebut.
- No immunity attaches for “unofficial acts,” but lower courts are left to guess where the line between official and unofficial lies, and Roberts put his thumb on the scale by barring evidence of “immune” acts from becoming evidence. Roberts wrote that it was not the Supreme Court’s job to sift through, weigh and consider the evidence to figure out what presidential conduct was unofficial. “That analysis,” he wrote, “ultimately is best left to the lower courts to perform in the first instance.”
The court could have examined Trump’s attempt to overthrow the 2020 election through the contorted lens of its own ruling, but that would have saved time. The court’s goal, after all, was to send the case back to District Court Judge Tanya Chutkan for detailed factual and evidentiary hearings that appellate courts and the Supreme Court will review again, months and possibly years after the November election.
The Roberts Court amended the Constitution
The colonists who demanded independence from King George III despised his corruption and that of his military officers. With Trump and his corrupt enablers, only the names have been changed: Rudy Giuliani (just disbarred); Steve Bannon (now in prison); Peter Navarro (also serving time), Roger Stone (sentenced to three years for lying to Congress, commuted by Trump), Paul Manafort (sentenced to 7.5 years for fraud, illegal foreign lobbying, and witness tampering, Trump pardoned him and brought him back to Trump’s 2024 campaign).
In the Declaration of Independence, colonists declared that they would no longer be governed by a lawless King and his enablers, and instead created a new form of government where all men, at least in theory, were equal before the law.
When they wrote the Constitution, the framers did not draft immunity for the president; they did just the opposite by providing for the removal of the president for “high crimes and misdemeanors.” They also granted limited immunity to legislators in Art. I, §6, the Speech or Debate Clause: “Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest (while traveling to and from, and while attending, Congress) and for any Speech or Debate in either House, they shall not be questioned in any other Place.” Note that the founders immunized their speech—not their actions.
The founders expressly declined to extend similar immunities to Presidents. This was no oversight. Rather, the Constitution in Art. I expressly anticipates criminal prosecution: After a President is impeached, convicted, and removed from office, he “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Not so, says the Roberts court. Art. I of the Constitution now provides that the President “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, but only as to those acts that fall outside the President’s absolute and presumptive and criminal immunity from prosecution and good luck finding an act by the President that is not related to his core function.”
What comes next is worse
Kevin Roberts, president of the Heritage Foundation and chief advocate of Trump’s Project 2025 to turn the U.S. into a rightwing dictatorship, declared that we are “in the process of the second American Revolution, which will remain bloodless if the left allows it to be.” Since SCOTUS also just stripped the federal government of most of its power to fight climate change, we could very well see violence from the left this time.
Short of that, between now and November, we need to beat a loud drum for court reform. The Constitution, if it still matters at all, requires 2/3 of the Senate to remove Supreme Court justices. Given the lopsided power of rural states, Democrats are not likely to take a 2/3 majority of the U.S. Senate in November, so they need to focus on winning a majority in the House. If that happens, there are several reform options, not mutually exclusive:
Expand the court and limit their terms: The Constitution does not set the pay, or the length of service, or the number of justices on the Supreme Court. Congress does. That means Congress can increase the number of justices from 9 to 13, because there are now 13 courts of appeal below the Supreme Court; they can also impose term limits. Democrats must pledge a commitment to court reform ahead of November’s election.
Investigate and impeach Thomas and Alito: The Supreme Court perfected Trump’s J6 coup attempt despite repeated calls for Justices Clarence Thomas and Samuel Alito to recuse for their public displays of pro-insurrectionist bias. If Democrats win a majority of House seats, they can establish an investigative commission similar to the J6 Select Committee. With full subpoena and investigative powers, the committee can also examine Alito and Thomas’ donor gifts, Leonard Leo’s Federalist Society dark money graft, and ethical violations with particularity. (Side bet: Trump, immunity, legalizing bribery, and gutting Chevron are all about protecting fossil fuel money.)
Impose mandatory ethics: Congress can also address the Court’s refusal to follow the rules of ethics that apply to all other federal judges in the nation. It should not be left to crooked justices to police themselves. At a minimum, Congress can establish an independent counsel to monitor and police the court, and empower them, when necessary, to impose recusal and discipline.
Remove jurists who lied during confirmation: Another avenue for reigning in a rogue court is impeachment on the grounds that Justices Brett Kavanaugh, Amy Coney-Barrett and Neil Gorsuch each swore that they’d respect precedent on Roe v. Wade during their confirmation hearings, but seemed to forget about their testimony once they were sworn in. Lying to Congress is a felony.
Trump seeks revenge, retribution and executions for his political adversaries, and Republicans on the Court just gave him the green light. They have led the country into mortal danger, yet have no enforcement powers of their own. Perhaps deciding that a sitting president can order SEAL Team 6 to assassinate a rival, a critic or a lawless sitting court- as part of his core function of protecting democratic norms- was the wrong call.
