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HOW THE US SUPREME COURT SHREDDED THE CONSTITUTION AND WHAT CAN BE
DONE TO REPAIR IT  
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Laurence H Tribe
July 8, 2024
The Guardian
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_ Court’s troubling rulings on presidential immunity and regulatory
power make it clear that change is an ethical essential _

‘Trump v United States isn’t just unwise. It’s a betrayal of
the constitution.’, Anadolu/Getty Images

 

On 1 July 2024, the US supreme court, after an unconscionable
half-year delay that it laughably described as “expedited”
treatment, handed down Trump v United States, the immunity ruling
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American presidents above the law by deeming the president a “branch
of government ... unlike anyone else.” The court’s delay
guaranteed that Donald Trump would face the electorate in 2024 without
first confronting a jury of his peers instructed to decide, and thus
inform voters, whether he was guilty of trying to overthrow the 2020
election.

Famously, the English immigrant Thomas Paine advocated that we revolt
against the crown to form an independent country and frame a
constitution to prevent the rise of a dictator “who, laying hold of
popular disquietudes, may collect together the desperate and the
discontented … [and] sweep away the liberties of the continent like
a deluge”. To that end, Paine asked: “Where … is the king of
America?” And he replied: “In America THE LAW IS KING. For as in
absolute governments the king is law, so in free countries the law
ought to be king; and there ought to be no other.”

In the court’s majority opinion, Chief Justice John G Roberts, Jr
betrayed that promise and the constitution that embodied it. He
pretended that granting lifelong immunity from accountability to the
nation’s criminal laws didn’t place the president “above the
law”. In majestic circularity, he announced that the “president is
not above the law” because it is the law itself that implicitly
contains that immunity, to preserve “the basic structure of the
constitution from which that law derives”.

But the idea that we need an unbounded chief executive to make the
separation of powers work is grounded neither in theory nor in
experience and contradicts the axioms of checks and balances. Worse
still, the court’s decision delivers not a genuinely unbounded
executive but one bound by whatever limits the court itself invents as
it fills in the gray areas in its anything but black-and-white ruling.
So it’s an imperial judiciary this court delivers in the guise of an
imperial executive, not surprising for a court that just last week
dismantled
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administrative state by substituting itself for the panoply of expert
executive agencies in Loper Bright Enterprises v Raimondo.

The three dissenting justices objected, without rebuttal by the
majority, that no prior president has needed this novel immunity from
generally applicable criminal laws to operate as “an energetic,
independent executive”, an objective the court placed above all
else. The majority professed worry about “an executive branch that
cannibalizes itself, with each successive president free to prosecute
his predecessors, yet unable to boldly and fearlessly carry out his
duties for fear that he may be next”.

But it said nothing to justify that worry – or to explain how the
newly concocted less-than-absolute shield of presidential immunity
could hope to solve the problem it conjured. After all, if we elect
presidents unprincipled enough to direct their attorneys general to
persecute their predecessors on trumped-up charges of abusing their
official powers, there’s nothing to stop them from fabricating
purely private – and, under the court’s new rule, non-immune –
crimes by those predecessors.

Beyond those glaring flaws in the majority’s reasoning, Roberts
snidely accused the three dissenting justices of “fear-mongering on
the basis of extreme hypotheticals” that neither the majority
opinion nor either of the two concurring opinions troubled to refute.

What to make of the majority’s confusing instructions to the court
trying Trump for the federal crimes through which he is alleged to
have sought to overturn the 2020 election
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the lawful transfer of power for the first time in our history? Only
Justice Amy Coney Barrett, partly concurring and partly dissenting,
wrote in no uncertain terms what the majority should have made clear
but didn’t: “The president’s alleged attempt to organize
alternative slates of electors … is private and therefore not
entitled to protection … While Congress has a limited role in that
process, see art II, §1, cls 3-4, the president has none. In short, a
president has no legal authority – and thus no official capacity –
to influence how the states appoint their electors.”

The majority should’ve endorsed Barrett’s brisk conclusion: “I
see no plausible argument for barring prosecution of that alleged
conduct.”

The majority also offered no cogent reason to disagree with Barrett
that, “beyond the limits afforded by executive privilege”, the US
constitution doesn’t “limit the introduction of protected conduct
as evidence in a criminal prosecution of a president”. As she and
the three dissenters persuasively argued, the constitution “does not
require blinding juries to the circumstances surrounding conduct for
which presidents can be held liable” even if it does immunize them
from prosecution on the basis of those circumstances. Bribery, a
federal crime, makes the point perfectly. It’s nonsensical to hold,
as the majority does, that a president who performs an official act
like issuing a pardon in return for a bribe may be prosecuted for the
bribe but may prevent the jury from learning about the backroom
presidential conversations surrounding the pardon. The majority’s
rejoinder that the pardon itself may be introduced in evidence as an
official record is no answer at all.

Indeed, the whole journey on which the majority embarks is
misdirected. As dissenting Justice Ketanji Brown Jackson
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it’s “cold comfort” to learn that “the president is subject to
prosecution in his unofficial capacity … like anyone else”,
because the “official-versus-unofficial act distinction” is both
“arbitrary and irrational, for it … is when the president commits
crimes using his unparalleled official powers that the risks of abuse
and autocracy will be most dire”. She is right that vesting the
president with uniquely sweeping powers and duties “actually
underscores, rather than undermines, the grim stakes of setting the
criminal law to the side when the president flexes these very
powers”.

I’ll let others sort through the tangled puzzles the court has left
in its wake absent meaningful guidelines for distinguishing between
the various categories of presidential conduct it enumerates. My main
takeaways from this shameful decision are three: first, there is a
compelling need for supreme court reform, including a plan to impose
an enforceable ethics code and term limits and possibly create several
added seats to offset the way Trump as president stacked the court to
favor his Maga agenda; second, we should start planning for a
constitutional amendment of the sort I have advocated in the New York
Times to create a federal prosecutorial arm structurally independent
of the presidency; and third, we need a constitutional amendment
adding to article I, section 9’s ban on titles of nobility and
foreign emoluments a provision expressly stating that nothing in the
constitution may be construed to confer any immunity from criminal
prosecution by reason of a defendant’s having held any office under
the United States – and a provision forbidding use of the pardon
power to encourage the person pardoned to commit a crime that the
president is unable to commit personally.

Amending the constitution to address problems the supreme court
creates needn’t take long. When the court prevented Congress from
lowering the voting age to 18 in state along with federal elections in
Oregon v Mitchell, it took under seven months for us to adopt the 26th
amendment to repair that blunder. And the court can overturn its own
egregiously wrong decisions quickly, as it did in 1943 when it
overturned a 1940 ruling letting states force children to salute the
flag against their religious convictions in West Virginia state board
of education v Barnette. As Justice Felix Frankfurter once wrote:
“Wisdom too often never comes, so one ought not to reject it merely
because it comes late.” Trump v United States isn’t just unwise.
It’s a betrayal of the constitution. Overturning it should be an
issue in this November’s election.

 This article was amended on 8 July 2024. Thomas Paine was English,
not Irish as an earlier version said.

_LAURENCE H TRIBE is the Carl M Loeb University professor and
professor of constitutional law at Harvard Law School_

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* Supreme Court
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* immunity
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* ethics
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* term limits
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* prosecutorial independence
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