“If Trump truly goes off the rails, can the Supreme Court reverse itself (on its own initiative) as to presidential immunity? If so, can it be retroactive?”
— Scott in Seattle
Hi Scott,
In a word: No.
The general answer to whether the justices “can” do something is: “If a majority of them want to.” But they’re supposed to decide cases based on live disputes between parties. So, the court overturns past precedents with new appeals. Take, for example, the Dobbs case in which the court overturned Roe v. Wade in 2022. The majority didn’t reverse Roe the day that Justice Amy Coney Barrett joined the court in 2020; it needed a case, and that case was Dobbs.
When it comes to potentially overturning Trump v. United States, it’s unclear what new appeal would present the issue anytime soon. It’s true that the president is challenging his New York state hush money conviction while citing the immunity ruling to support an appeal that could eventually reach the justices. But the issue there would likely be about the immunity ruling’s scope, not whether the ruling itself should stand.
More to the point, I don’t think the Roberts Court would change its mind on immunity after just handing down the decision last year. It’s not like the president was an unknown figure to the justices when a majority of them sided with him. Indeed, the case in which they bestowed that broad legal protection stemmed from Donald Trump’s allegedly criminal bid to thwart the 2020 election, backed by his supporters’ violence. (He pleaded not guilty before the government moved to dismiss the case after he won the 2024 election due to the Justice Department’s policy against prosecuting sitting presidents.) The retroactivity question is doubly hypothetical because such a reversal is unlikely to happen anytime soon. But due to constitutional principles against retroactively outlawing conduct, I don’t think such a hypothetical reversal of the immunity ruling would make Trump retroactively eligible for any prosecution that the ruling presently bars. However unpersuasive the new immunity precedent is, it wouldn’t be fair for the court to say that someone can’t be prosecuted for something and then turn around and say: “Actually, they can.” While the president doesn’t have much use for other people’s rights in his revenge-themed second term, the law has protected and will continue to protect him. Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal blog and newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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