This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
Is the Supreme Court obtuse or disingenuous? In its awful immunity ruling on Monday benefiting 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 it is willing to let a legitimate election subversion prosecution over a current threat against democracy go by the wayside.
As Mark Joseph Stern explained, the court’s ruling gives an exceedingly broad scope to the immunity afforded presidents from liability for official acts. It defined official acts so broadly as to include not only communications with officials at the Justice Department but even giving public speeches, as Trump did on Jan. 6, 2021, that encouraged political violence at the Capitol: “most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.” And even as to unofficial acts for which there is no immunity, a prosecutor could not rely on any official acts to overcome that immunity. The bottom line is that trying to prosecute a former president for criminal activity during the president’s time in office will be all but impossible.
The writing was on the wall back in the April oral arguments in Trump v. United States when Justice Neil Gorsuch said the Supreme Court’s task was writing an opinion “for the ages” and when Justice Samuel Alito opined, from some bizarre alternative universe, that it is the threat of criminal liability after the end of the presidential term (as opposed to its absence) that could cause an incumbent president not to leave office peaceably. Indeed, the intentional delay the court took—to the benefit of Trump—was clear way before then, when the court refused to expedite this case as the special counsel requested back in December and when it slow-walked the case, setting it for the last day of arguments (and now releasing the opinion on the last day of the term).
These justices were always thinking about an abstract problem that could occur in 2072 or 2114 with presidential power and not about the problems the United States faces today with the attempt at election subversion undertaken by Donald Trump and his allies in 2020.
Months ago, many of us were wondering why the court was dragging its feet, and I even naïvely suggested the court could behind the scenes be crafting a “grand bargain” where it decided in favor of Trump when Colorado tried to remove him from the ballot, to be followed by a quick rejection of immunity, allowing his election subversion trial to move forward before the election. Reality was in fact the opposite. In Monday’s opinion, the court accused the lower courts of moving way too quickly and not engaging in thorough enough legal analysis and factual development. Their message was, Hey guys, take it slow, presidential immunity for criminal acts is really important.
The court was right about importance, but not in the way that it thought. We have an ongoing threat to American democracy going on today, right now, in this country. In 2020, the incumbent president tried to overturn the results of a fairly conducted election by trying to manipulate the rules for states to certify their presidential electors and Congress to count those Electoral College votes. He did that by making wholly unsubstantiated claims of fraud and irregularities and pressuring Justice Department officials, state election administrators, state legislators, and others to change fair results. When that failed, he aimed and fired his armed supporters at the U.S. Capitol to disrupt the proceedings for certifying the election and block the peaceful transfer of power.
Not only did this presidential candidate not face any legal consequences yet for these actions, but he is the front-runner to be president again, now armed with a new Supreme Court opinion that gives him vastly expanded powers that he would no doubt use if he is put back in office. Who knows what he will do in 2025 with a green light to engage in all kinds of criminal activity?
Tellingly, Chief Justice John Roberts’ majority opinion spends not a moment condemning the violence in the Capitol on Jan. 6 or saying how awful the allegations against Trump are if true, or even celebrating peaceful transitions of power and reaffirming American democracy. It fell to Justices Sonia Sotomayor and Ketanji Brown Jackson to do this in their dissenting opinions in this case, in the Fisher case, and in Trump v. Anderson, the case holding that Colorado could not remove Trump from the ballot on grounds that Trump engaged in insurrection in violation of Section 3 of the 14th Amendment.
It is not as though Roberts does not know how to celebrate democracy or call for its protection when he thinks it’s important. In a 2014 campaign finance case, for example, Roberts opened with the line:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.
Near the end of his majority opinion in the immunity ruling, Roberts plays the role of the faux minimalist, as he often likes to do, pretending that when he is making major changes in the law he is really doing very little. He did this, for example, in the 2013 Shelby County v. Holder case killing off a key part of the Voting Rights Act. There he told us that Congress could tinker and fix the formula used to figure out which states need federal supervision of their voting rules, and that there were other voting rights protections under the law. He wrote that knowing Congress would not act. The Roberts court would then whittle away those other protections in subsequent years.
In Monday’s opinion, Roberts pushes back against dissents that “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine ‘in the first instance’ whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.” At best, the process that Roberts has set out will take months, and future appeals to the United States Supreme Court before any trial could even be possible, under rules that make Trump almost a prohibitive favorite to defeat the claims before there is even a trial. At worst, a reelected Trump will simply shut down the prosecution once he’s back in office.
Even putting aside the risks for future presidential authoritarianism, Roberts offers no acknowledgement that the court’s fact-intensive, slow-moving process has let Donald Trump run out the clock on claims of election subversion in 2020. Roberts surely was aware that this was an implication of the decision and surely the risks to democracy from this decision had to have crossed his mind.
Roberts’ failure to even acknowledge those risks, even if he thought the risks were worth taking because of larger principles at stake of protecting the presidency from bogus prosecutions in the future, is going to be Roberts’ legacy for American democracy. That is, if our democracy survives.