October 23, 2024
Now I Got Worry
I Don’t Trust the Supreme Court
With the 2024 Election
During his presidency, the high
court’s conservatives proved to be resistant to the idea that Donald Trump was
their legal client. This year, that all changed.
Jacquelyn
Martin/Getty Images
It’s
impossible to say whether Donald Trump or Kamala Harris will win the
presidential election next month. Far more easy to predict is that there will
be litigation after Election Day over the results. By one count, there have
already been more than 130 legal challenges to
election laws across two-thirds of the states. Trump and his allies are aggressively sowing doubt about
the election results so that they can create fraudulent slates of electors to
deadlock the Electoral College if he loses.
In
some ways, the American electoral system is more resilient now to Trump’s
malfeasance than it was four years ago. Democrats hold key gubernatorial and
election offices in Arizona, Michigan, Pennsylvania, and Wisconsin, providing a
backstop against GOP skullduggery. Congress passed a law after the chaos of the
2020 election to clarify the Electoral Count Act of 1887. Storming the Capitol
to stop the count on January 6, 2025, will also be far more difficult with a
Democratic president in the White House.
But
there is one powerful actor in the presidential election that still keeps me up
at night: the Supreme Court. I was fairly confident ahead of the 2020 election
that the justices would not grossly intervene for Trump’s benefit. Indeed, they
ultimately rejected MAGA litigation intended to throw out the results,
wholesale. But the court’s rulings in Trump’s favor last term—first on
disqualification under the Fourteenth Amendment and then on presidential
immunity—mean I can’t make the same assumption this time.
For
most of the Trump years, the Supreme Court did not show the former president
any clear favoritism—by which I mean that its members did not rule in his favor
in ways that did not reflect their general approach to the law. When the
justices tossed a series of
congressional subpoenas for Trump’s financial records in 2020, for example, it
fit within the court’s general trend of insulating the executive branch from
congressional scrutiny. That same day, they also allowed New York
prosecutors to obtain those records with a grand jury subpoena, rejecting his
sweeping arguments for immunity.
This
trend continued through the end of Trump’s presidency as the justices
consistently rejected his last-ditch legal attempts to overturn or change the
election results in 2020. The Supreme Court even rejected a bizarre but
well-organized lawsuit by Texas and other Republican-led states that sought to
negate the electoral votes in multiple states that President Joe Biden had won,
without hearing arguments on it. Eleventh-hour pleas to specific members of the
court like Justice Samuel Alito also went nowhere.
Something
has changed since then. In the disqualification case, the court’s conservative
majority went out of its way to butcher Section 3 of the Fourteenth Amendment
in Trump’s favor. The unsigned majority decision declined to hold that Trump
hadn’t taken part in an insurrection or that the clause didn’t apply to him,
which would have been narrower (albeit flawed) grounds for reversal. Instead
they took the sweeping position that states couldn’t enforce the
disqualification clause without separate congressional authorization. The
conservative majority, parting ways with the liberal justices, then went one
step further to hold that federal courts could not disqualify Trump either.
As
I’ve noted before, the Anderson ruling
was a judicial train wreck. It defied the normal practice for how presidential
qualifications are enforced. States routinely reject candidates for not meeting
the age or natural-born citizenship requirements. It also mangled the structure
of the Fourteenth Amendment itself. Not only is the clause self-executing in
both design and practice, but requiring congressional action also complicates
how the rest of the amendment works. Taken altogether, the ruling smacked of
short-term expediency and political convenience instead of thoughtful judgment.
Trump
v. United States is much worse. Here we must
begin by stating the obvious: There is no such thing as “presidential immunity”
in the American constitutional order. It cannot be found in the Constitution’s
text, history, or tradition. The Supreme Court had never before suggested that
presidents enjoy any form of criminal immunity before now. Even American
presidents didn’t think it existed until Trump proposed it. If they did, Gerald
Ford wouldn’t have bothered to pardon Richard Nixon after he resigned over
Watergate.
To
accept the idea of presidential immunity is to defy the fundamental principles
of the Constitution. The Framers abhorred corruption and abuse of power, which
they saw as inherently dangerous to republics and the principal historical
causes of their demise. When describing the presidency in Federalist No. 69,
for example, Alexander Hamilton defended the new office from its critics who
saw creeping monarchism in its creation. He reassured readers that the
president would not be a king, by emphasizing that he would be bound by the
law.
“The
President of the United States would be liable to be impeached, tried, and,
upon conviction of treason, bribery, or other high crimes or misdemeanors,
removed from office; and would afterwards be liable to prosecution and
punishment in the ordinary course of law,” he explained. “The person of the
king of Great Britain is sacred and inviolable; there is no constitutional
tribunal to which he is amenable; no punishment to which he can be subjected
without involving the crisis of a national revolution.”
Roberts’s
ruling made no mention of any of this. He instead expounded upon a dividing
line between official acts and unofficial acts based on a framework he conjured
out of thin air. “There is no immunity for unofficial acts,” the chief justice
stated. When it comes to “official acts” that involve a “core constitutional
power” of the presidency, a current or former president has “absolute”
immunity. For everything else, Roberts claimed, a president has “presumptive”
immunity that could be reviewed by future courts.
How
did Roberts justify this? He drew from a hodgepodge of sources to make his
argument. Some of it comes from the court’s prior separation of powers and
executive privilege rulings, which are stretched beyond recognition to make an
argument for immunity that their authors did not consider or embrace. Other
sources are almost insulting to the reader’s intelligence. Roberts quoted
Federalist No. 70 for the proposition that the Framers envisioned a “vigorous”
and “energetic” chief executive, even though Hamilton was simply arguing for a
singular president instead of a multimember executive.
Perhaps
the most risible citations are to United States v. Nixon. That 1974
case effectively ended Richard Nixon’s presidency by forcing him to obey a
grand jury subpoena for the Watergate tapes. Though the court’s ruling
emphasized that no man was above the law and rejected Nixon’s claims of
“absolute immunity,” Roberts read the decision’s language on executive
privilege as tortured evidence for presidential immunity.
None
of this is remotely persuasive. The Framers were more than capable of saying
whether federal officials had any form of immunity. They happily did so in
other circumstances. Under the Constitution, members of Congress enjoy a
limited form of legislative immunity that is narrowly tailored to their
official duties. They cannot be arrested while traveling to and from sessions,
nor can they be punished for what they say during speeches and debates.
Federal
and state judges also have what is known as judicial immunity. The Constitution
makes no explicit mention of it, but judicial immunity is typically seen as a
bedrock feature of the common-law legal system that Americans inherited from
England before 1776. English judges have had some form of protection from
litigation over their rulings and official acts since the Plantagenets.
What
Roberts articulated for presidents goes far beyond these forms of immunity as
well. A senator who takes envelopes of cash in exchange for specific votes on
legislation can be tried and convicted for bribery. So could a federal judge
who demands kickbacks from litigants in exchange for specific rulings. The
Supreme Court has often narrowed anti-corruption cases involving “unofficial
acts” but had typically held the line when it comes to “official acts.”
Not
so when it comes to presidents. Here the formula is now reversed: If a
president acts corruptly when carrying out an “official act,” he is
automatically above the law. Only when he acts unofficially is he subject to
the general criminal laws of the nation. Even the carve-out for unofficial
acts is little reassurance because the president can simply comingle his
unofficial acts with official ones to provide himself with legal cover.
Part
of the special counsel’s indictment of Trump, for example, focused on his
interactions with Justice Department officials. After Election Day in 2020,
Trump and his allies pressured the acting attorney general and other top
officials to publicly endorse his false claims of election fraud. Their goal
was to build support for state legislatures to create fraudulent slates of
presidential electors under the false premise that the election results were
tainted.
Challenging
one’s own election results is not a core presidential power or even a
peripheral one. In Roberts’s eyes, however, using those conversations as
evidence for a criminal case would be unconstitutional. “The indictment’s
allegations that the requested investigations were ‘sham[s]’ or proposed for an
improper purpose do not divest the President of exclusive authority over the
investigative and prosecutorial functions of the Justice Department and its
officials,” he wrote. Justice Sonia Sotomayor, writing in dissent, found that
reasoning ridiculous. “If that were the majority’s concern, it could simply
have said that the Government cannot charge a President’s threatened use of the
removal power as an overt act in the conspiracy,” she wrote. “It says much
more.”
Roberts’s
overall dismissiveness of Sotomayor’s dissent only revealed the weaknesses in
his own argument. “True, there is no ‘presidential immunity clause’ in the
Constitution,” he wrote. “But there is no ‘separation of powers clause’
either.”
If
someone had leaked the immunity decision, à la Dobbs decision,
and it had contained this line, I would have written it off as a forgery. Even
if one sets aside the logical flaws in that reasoning, there is still a glaring
factual error. There are, in fact, three separation of powers clauses in
the Constitution: the three vesting clauses that begin Articles 1, 2, and 3.
That Roberts somehow forgot this—or ignored it in favor of a weak
zinger—typified his approach to the case.
Even
within the conservative majority, there were efforts to temper the extremism of
Roberts’s ruling. Justice Amy Coney Barrett took a much narrower approach in
her concurring opinion. She rejected the court’s framing of the issue as one of
“immunity,” instead focusing on whether presidents could challenge the
constitutionality of specific criminal laws as applied to them before trial.
Barrett concluded that a president (or former president, in this case) could
lawfully bring such a challenge, which would be evaluated on a case-by-case
basis.
“The
Court describes the President’s constitutional protection from certain
prosecutions as an ‘immunity,’” she wrote. “As I see it, that term is shorthand
for two propositions: The President can challenge the constitutionality of a
criminal statute as applied to official acts alleged in the indictment, and he
can obtain interlocutory review of the trial court’s ruling.”
This
framework is somewhat more defensible. If a particularly tough-on-crime
Congress passed a law that made it a federal crime for a president to issue a
pardon, for example, that would raise serious separation of powers concerns.
Barrett raised a hypothetical situation in which a hostage-rescue mission might
violate a real federal statute that makes it illegal to conspire to commit
murder in a foreign country. Sotomayor’s earlier reference to the removal power
could also fall under those terms.
“If
the statute covers the alleged official conduct, the prosecution may proceed
only if applying it in the circumstances poses no ‘danger of intrusion on the
authority and functions of the Executive Branch,’” she wrote, quoting from a
previous Supreme Court ruling. This approach is not without its own
shortcomings—it is still fairly deferential to presidents and leaves open
plenty of questions about when and how they can be prosecuted. Barrett did not
write comprehensively on this since her opinion was only a concurring one. Had
she written the majority opinion for the court under this framework, the damage
done would have likely been far less grave.
Roberts’s
errors are so fundamental that they force us to reevaluate both him and the
court itself. It is worth emphasizing that the conservative justices in the
majority abandoned all of their previously stated beliefs to write this
decision. Michael Rappoport, a University of San Diego law professor who serves
as the director of its Center for the Study of Constitutional Originalism,
described the decision as an “originalist disaster.”
Other nonliberal legal commentators noted that
Sotomayor’s dissent was far more faithful to the original public meaning of the
Constitution.
But
this is not merely about disagreements in interpretive method or judicial
philosophy. Those happen all of the time. This is about basic understandings of
the American republic and its civic tradition. Roberts’s ruling comes from a
world without John Locke, without Montesquieu, without Thomas Jefferson or
James Madison or Alexander Hamilton. He describes a Constitution unmoored from
republican virtue and higher principles of self-government. If living
constitutionalism is French and originalism is Italian, then Trump v.
United States is written in Klingon.
To
make matters worse, the outcome appears to have been unavoidable. The
New York Times reported in September that
Roberts had brushed aside efforts from the start to reach consensus from the
liberal justices, instead favoring a divisive, maximalist ruling that gave
Trump almost everything he wanted. Sometimes the court’s most flawed rulings
are the product of the fragmented consensus that is required to form a
five-justice majority. Not so in this case. The blame lies squarely on
Roberts—the chief justice, the heresiarch, the balls-and-strikes umpire who
happily gave Trump four outs and loaded the bases.
That
brings us back to the 2024 election. If Harris wins a majority of electoral
votes next month, I have no doubt that Trump and his allies will ask the courts
to intervene on his behalf or force others to go to the courts to stop him. He
is eagerly laying the groundwork to do it as we speak. Twelve months ago I
would have assumed the Supreme Court would resolve those cases with the same
equanimity and skepticism that it showed—and that Trumpworld’s efforts
deserved—in 2020.
Trump
v. Anderson and Trump v. United
States make it impossible to maintain that certitude. The court’s
conservative majority eagerly abandoned text and precedent to clear Trump’s
path to run in this election and to shield him from the consequences of trying
to overthrow the last one—and they did so at a time when they were freed from
any real pressure, political or otherwise, to show him deference. I am no
longer confident that they would brush aside fraudulent slates of electors or
compel MAGA-friendly officials to certify legitimate election results. I can no
longer assume that even the most ridiculous legal theories will be rejected out
of hand. After all, “absolute presidential immunity” used to be one of them.