Supreme Court’s Presidential Immunity Decision “Will Live in Infamy”

Posted in: Constitutional Law

In our time of national crisis, we need a Supreme Court that displays and exemplifies fidelity to constitutional norms and ideals. Yet, as its current term ends, the Court we have seems to have lost its way and the American people’s confidence.

This is not the first time in this country’s history that the Court has lost its way. But it may be one of the worst, and the most consequential, of those times.

Instead of acting as a defender of constitutional governance, the Court is aiding and abetting a partisan project. It is unabashedly helping to move the United States down the road to authoritarianism.

On Monday, the Court offered a new reason for Americans to think that it has lost its way when it added Trump v. United States to its long list of infamous decisions.

I recognize that the word infamy should not be used lightly. Indeed, it rarely appears in stories about the bad things the Court has done, no matter how bad they have been.

For example, Columbia law professor Jamal Greene avoids this language when discussing decisions like Dred Scott v. Sanford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States. Instead, he labels them “anticanonical.”

“Anticanonical cases,” Greene argues, “do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to conventional constitutional argument.”

According to Greene, “Anticanonical cases achieve their status through historical happenstance,” and “subsequent interpretive communities’ use of the anti-canon as a rhetorical resource reaffirms that status.” Greene says that cases are marked as anticanonical by the frequency with which subsequent cases and legal scholarship repudiate them.

They serve as negative reference points in the narrative of constitutional progress. Decisions become anticanonical only over time as their subsequent history unfolds.

I am confident that Trump v. United States will eventually join Greene’s list of anticanonical decisions. But whatever history’s judgment will be, it is not too soon to label Trump v. United States infamous.

The language of infamy has a long history. It can be traced back to Ancient Greece and Rome, where infamia described certain dishonorable behavior. Throughout history, it has been used to describe shameful acts or decisions.

The label “infamous” has traditionally been reserved for behaviors that went to the core of what it meant to be upstanding. And, as Supreme Court Justice William Douglas once noted, being labeled infamous amounts to a type of “civil excommunication.”

For Americans of my generation, the language of infamy is most closely associated with what President Franklin Delano Roosevelt said about December 7, 1941, the date of the Japanese attack on Pearl Harbor. He labeled it “a date which will live in infamy.”

Trump v. United States deserves a similar label because it turns the Constitution on its head and marks a low point in the American experiment in self-government under law. It also is infamous because it also brings dishonor to the Supreme Court itself.

No longer can we say that the United States is a country where no one is above the law. The Trump decision undoes that founding principle.

Indeed, it effectively ratified a view articulated by Richard Nixon in 1977 during an interview conducted by the British journalist David Frost. Talking about the shady things Nixon had done to quash anti-Vietnam War protests and to covertly surveil activists, Frost asked Nixon, “What you are saying is there are certain situations… where the president can decide that it’s in the best interest of the nation or something and do something illegal?”

Nixon responded, “When the president does it, that means it’s not illegal.”

Nixon’s brazen assertion that the President is above the law, or rather that presidential action defines what is or is not law, has long been regarded as a shameful outlier in American history. But no more.

Monday’s decision means that a President obligated to ensure that the law is faithfully executed need not be bound by the laws that he is duty-bound to enforce. So long as the President is discharging their official responsibilities, they are, from this point forward, freed from the obligation to obey the criminal law.

To get a sense of how radical, shameful, and infamous that decision is, one needs only to make recourse to what some of the justices in the Trump v. United States majority said during their confirmation hearings. The Washington Post offers several pertinent examples.

Let’s start with what Justice Brett Kavanaugh told the Senate Judiciary Committee. As the Post notes, “Kavanaugh cast presidential immunity as almost an unthinkable—or at least, un-thought-of—idea.”

Kavanaugh testified, “‘No one has ever said…that the president is immune from civil or criminal process. So immunity is the wrong term to even think about in this process.’”

He added, “I do not think anyone thinks of immunity. And why not? No one is above the law. And that is just such a foundational principle of the Constitution and equal justice under law.”

The Post notes that “Kavanaugh repeatedly cited Federalist 69, which stated that Presidents should ‘be liable to prosecution and punishment in the ordinary course of law.’”

Or recall what Chief Justice John Roberts said during his 2005 confirmation hearings. “‘I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the Constitution and statutes.’”

The views set forth by Kavanaugh and Roberts during their confirmation hearings seemed, at the time they were uttered, so obvious that they barely needed to be said.

And last year, when they were challenged by Trump’s assertion of presidential immunity, first the U.S. District Court for the District of Columbia and then its Circuit Court of Appeals reiterated Kavanaugh’s and Roberts’s positions.

As the circuit court put it in its per curiam opinion, “The structure of the Constitution mandates that the President is ‘amenable to the laws for his conduct’ and ‘cannot at his discretion’ violate them.”

The court noted that “recent historical evidence suggests that former Presidents, including President Trump, have not believed themselves to be wholly immune from criminal liability for official acts during their presidency.”

Moreover, the court explained that “instead of inhibiting the President’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior.” It concluded that granting presidential immunity “would collapse our system of separated powers by placing the President beyond the reach of all three branches.”

That is exactly what the Court did on Monday.

Its ruling belied Roberts’s claim that in our constitutional system, the President is “fully bound by the law.” Welcome to authoritarianism protected by judicial fiat.

In the end, it is clear that the conservative majority on the Court, including Kavanaugh and Roberts (two of the least extreme members of that majority) has bought into the MAGA program. By doing so they have, as Justice Sonia Sotomayor put it in her dissent in the Trump case, made “a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”

That is why Trump v. United States deserves to be called a decision that

“will live in infamy.”

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