Justice Sonia Sotomayor’s dissent in the Trump immunity ruling contained language unlike anything I’ve ever seen before in a Supreme Court opinion:
“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.”
What Sotomayor is signaling here is that it’s not just about the Trump Jan. 6 case. It’s about every president going forward, indeed possibly Trump next year, and being immune from criminal law — to be able to use the Justice Department in ways the court today calls “absolutely immune” to undermine elections, to go after individuals. This is as grave a shift in our constitutional system as any in our lifetime.
If you ever thought about the stakes in November and what they were, this opinion makes them very clear. The stakes are now astronomical in a way they might not have been before. You have to have someone in power you can trust to execute the laws faithfully and to comply with the Constitution. But after this ruling, it’s clear the law and the courts are not going to be a check against the next president. This is a clarion call for the American public to understand the courts are not going to protect us against a president who wants to violate the law.
Neal Katyal
Neal Katyal is a former U.S. acting solicitor general.
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