‘The President is Now a King Above the Law’: Sotomayor Says She Fears For Democracy in Scathing Dissent to Trump Immunity Decision

The Supreme Court ruled 6-3 to grant presidents absolute immunity for all official acts as president, to the exclusion of private acts. Dissenting were the three liberal Justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor, who tore into the conservative majority in her dissent.

In her dissent, she declared that “When [a president] uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.” She listed out some extreme cases where she argued this ruling would shield presidents from prosecution:

Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Sotomayor added: “In every use of official power, the President is now a king above the law.” She went on, concluding her dissent by stating her “fear for our democracy”:

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines … all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.

With fear for our democracy, I dissent.

Read the full decision here.

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