Because of the long-coming decision of this Supreme Court’s Christian nationalist MAGA majority, justice in Trump’s four separate criminal cases have been delayed, and possibly, eliminated altogether. More importantly, the justices’ legal chicanery has retroactively allowed a former president and all future presidents absolute immunity from criminal prosecutions by untenably conflating “private interests” with “official duties.”
In very different words, these Supreme Court justices have “nullified” Article II, Section 2 of the U.S. Constitution.
Ideally, a decision of this magnitude should have been a unanimous one — 9-0 — with justices across the ideological spectrum speaking with a unified and principled voice.
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Instead, the three justices that Trump nominated “cemented a 6-2 conservative majority that pushed the court further right, not only in embracing a broad view of presidential immunity, but also on an array of other topics – most notably, reducing the power of federal agencies, a long-favored target of conservative lawyers and legal scholars,” in the words of former Supreme Court litigator Amy Howe.
Certain justices themselves agreed.
Justice Sonia Sotomayor, for one, wrote in her powerful dissent, the Supreme Court has made “a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law,” noting that the Court gave Trump “all the immunity he asked for and more.”
As she opined, we should all fear for our democracy.
The question for this criminologist became: “How or why did crime and criminality – specifically a criminal conspiracy to overturn a presidential election – become the official business of a constitutionally empowered president of the United States?”
To find out how the Supreme Court avoided the answer to my question, obstructed justice or impeded due process, and eventually rendered such an absurd and perverted decision, you will have to read their convoluted logic for yourself and attempt to make sense of text that stubbornly defies logic, legal foundation or conservatives’ beloved principle of “originalism.”
Or, less painfully, you can read about it from Joyce Vance, a former U.S. attorney for the Northern District of Alabama who’s now a distinguished professor of the practice of law at the University of Alabama School of Law. As she wrote in Civil Discourse with Joyce Vance: “Presidents are kings” in the Supreme Court’s estimation.
To summarize Vance’s key takeaways:
The Supreme Court's decision “signals that they believe it’s more important to create a powerful presidency … then it is to be concerned with how a president could abuse that concentrated power, including to try and overturn an election.”
This was “a long decision with lots of moving parts” because there were five separate opinions written. Chief Justice John Roberts wrote the majority opinion. He was joined by Justice Clarence Thomas, who wrote a concurrence, as did Justice Amy Coney Barrett, “who joined most of Justice Roberts’ majority opinion, but not all of it.” Sotomayor wrote a dissent that was joined by Justices Elena Kagan and Ketanji Brown Jackson, who also wrote a separate dissent.
As Vance underscores, “the opinion itself is hard reading, even for appellate lawyers or those used to contemplating constitutional issues.” It is not law “written for the public, and that is an abdication of the Court’s responsibilities. Speaking of abdication of responsibility, both Justice Thomas and Justice Alito participated in the decision, an ongoing sign of the ethics dysfunction at the Court.”
Once more, the “Court has frittered away public confidence in its integrity as a democratic institution just when it’s needed the most, as the 2024 election, which like the one in 2020” may also end up in the courts.
The issue that the Supreme Court agreed to decide — which it never should have after trial judge Tanya Chutkan and a three-judge appellate panel had ruled unanimously that Trump could be prosecuted for actions undertaken while in the White House and in the run-up to Jan. 6 — was this: whether, and to what extent, Trump enjoyed “presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
As Vance writes below, the conservative supermajority issued a fairly direct answer finding that there were “three different categories of presidential conduct, and a different rule about immunity applies to each one,” as follows:
1.) “A former President has immunity from criminal prosecution for actions taken with his ‘conclusive and preclusive’ constitutional authority — his official authority stemming from the Constitution and our laws. This is for the exercise of his core constitutional powers.”
2.) “He had presumptive immunity from prosecution for other official acts, unless the government establishes that permitting them to prosecute will not create a danger of intrusion on the authority and functions of the Executive Branch. The Court calls this the ‘Twilight Zone’ of official acts, which includes areas where a president has shared immunity with Congress.”
3.) “There is no immunity for unofficial acts. [However,] there may be an issue about how to decide whether conduct is official or unofficial, but if it’s the latter, no immunity.”
Vance notes that had President Richard Nixon known he had this type of immunity, “he wouldn’t have resigned” from the presidency in 1974.
It also turns out that Nixon, during one of his exclusive 1977 interviews with David Frost, foreshadowed the Supreme Court’s immunity ruling 47 years in the future.
In response to Frost’s query about him having broken the law in relation to “a president believing that something is in the best interests of the nation,” Nixon legendarily replied: “Well, when the president does it, that means that it is not illegal.”
The three dissenting Supreme Court justices, Vance and this criminologist are hardly alone in our dismay. When I hunted through Google News for any commentaries that concurred with the Supreme Court’s pro-MAGA decision, I could not find any — save for Fox News, New York Post and several pro-MAGA publications.
Here are representative samples of what I did find:
From The Bulwark: “The Supreme Court is protecting the president from you. It should be the other way around.”
From The Washington Post: “Supreme Court’s Trump immunity ruling poses risk for democracy.”
From the Los Angeles Times: “We should all dissent from the Supreme Court’s immunity decision, and not respectfully.”
From CNN Politics: “The Supreme Court just gave presidents a superpower.”
From PBS: “A President could pocket a bribe for a pardon, stage a military coup to retain power, order the killing of a rival by the Navy’s SEAL Team Six – and be protected.”
From Project Syndicate: “The US Supreme Court has now ruled that the Constitution entitles former President Donald Trump to “presumptive immunity” from criminal prosecution for actions related to his efforts to overturn the November 2020 election.”
From Talking Points Memo: “The Supreme Court took a sledgehammer to American democracy.”
From Slate: “In its awful immunity ruling… benefitting Donald Trump, the court seems so worried about future threats to democracy that could come from the possibility of bogus future criminal prosecutions of former presidents [that have never happened before in US history] that it is willing to let a legitimate election prosecution over a current threat against democracy go by the wayside.”
From The New York Times: “The Supreme Court creates a lawless presidency.”
From Salon: “The Supreme Court rules that Donald Trump can be a dictator.”
From Politico: “The Supreme Court gave Trump a stunning Gift – and rewrote the Constitution.”
From Let’s Address This with Qasim Rashid: “Raise your hand if you remember learning about the separation of powers, and the fact that we have a democratically elected President with limited powers, not a fascist empowered dictator with unlimited powers?”
From Mother Jones: “The Supreme Court’s decision to grant presidents wide-ranging immunity from criminal prosecution is only guaranteed to fuel Democrats’ fear of a second Trump term and its impact on everything from the justice system to immigration to LGBT and other civil rights.”
Last month, in another assault on constitutional democracy, a 6-2 decision written by Chief Justice Roberts for the Supreme Court concluded in Loper Bright Enterprises v. Raimondo that the 40-year-old Chevron doctrine is dead, and that the era of executive branch agency rule is effectively over.
Elie Mystal, writing for The Nation, underscored the danger of this anti-scientific decision by detailing how it represents the unifying mission of The Federalist Society, Project 2025 of the Heritage Foundation, Trumpism and the Supreme Court supermajority.
“We just witnessed the biggest Supreme Court power grab since 1803,” Mystal lamented.
Mystal, a constitutional scholar, was referring to the fact that the Supreme Court “has given itself nearly unlimited power over the administrative state, putting everything from environmental protections to workers’ rights at risk.”
One might say that the “deconstruction of the administrative state” dreamed of and advocated by Steve Bannon, the once pardoned and now federally imprisoned advisor to the former president, is well on its way — especially should the felon and corruptor-in-chief return to the White House this coming January.
After all, the ideologically driven and anti-constitutional Supreme Court supermajority has now transformed itself and the presidency into imperial powerhouses. In the process, they have abandoned any semblance of legal principle and cultural tradition while setting both the First Amendment and stare decisis on fire.
Gregg Barak is an emeritus professor of criminology and criminal justice at Eastern Michigan University and the author of several books on the crimes of the powerful, including Criminology on Trump (2022) and its 2024 sequel, Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy.
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