Sotomayor scolds immunity decision for making presidents ‘king above the law’
Justice Sonia Sotomayor said the Supreme Court’s decision granting former President Trump “completely insulate[s] presidents from criminal liability” in a forceful dissent issued on Monday.
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” Sotomayor wrote in the 30-page dissent, joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson.
“It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
In a 6-3 vote on Monday, the Supreme Court ruled former presidents enjoy absolute criminal immunity for certain core functions. Other official acts are entitled to a presumption of immunity, Chief Justice John Roberts wrote for the majority.
“The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding,” Sotomayor wrote. “This new official-acts immunity now ‘lies about like a loaded weapon’ for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.”
“The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law,” her dissent read.
The case was sparked by a defense mounted by former President Trump in his federal election subversion case where he maintains he is immune from criminal prosecution for official actions he took while president, particularly in attempts to overturn the 2020 election results and leading up to the Jan. 6 riot at the Capitol.
Sotomayor extensively read her dissent from the bench, a rarity reserved for when a justice wants to underscore their sharp disagreements on a case.
“Our Constitution does not shield a former President from answering for criminal and treasonous acts,” Sotomayor wrote.
As she read her dissent, Sotomayor repeatedly looked over at Roberts, who was two seats to her left. But Roberts did not look back.
Sotomayor said the majority created an “unjustifiable immunity.”
“Argument by argument, the majority invents immunity through brute force,” she wrote.
The long-anticipated Supreme Court opinion means some of the allegations in Trump’s federal election subversion indictment are doomed from moving forward, while others could possibly still proceed.
Meanwhile, it provides Trump easy pathways to delay his trial until after November’s election as he battles with special counsel Jack Smith over how to apply the Supreme Court’s new test.
Sotomayor appeared to be eyeing language from the majority indicating Trump’s outreach to the Department of Justice during his effort to unwind the election would be a protected act – questioning just how far such a test would stretch.
"When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” Sotomayor wrote in dissent.
“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune,” she continued. “Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune."
Jackson said she agreed with “every word” of Sotomayor’s “powerful dissent,” in her own dissenting opinion.
“The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong,” Jackson wrote.
“But, for all our sakes, I hope that they are right,” she added.