Every dissenting opinion from this term of the U.S. Supreme Court ended with some variation of the same phrase: “I respectfully dissent.”
The dissents from both Justice Sonia Sotomayor and Justice Ketanji Brown Jackson in Trump v. United States conspicuously left out that phrase.
“With fear for our democracy, I dissent,” Sotomayor wrote at the end of her opinion, joined by all three liberal justices. Jackson wrote separately from Sotomayor, but began her opinion by writing that she agrees “with every word of her powerful dissent.”
Leaving out the traditional show of respect again placed on public display tensions within the court, which have been elevated since a draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization — the case that overturned the constitutional right to an abortion established by Roe v. Wade — leaked in May 2022. Recent ethics scandals involving Justice Clarance Thomas’s millions of dollars in undeclared gifts, his wife’s involvement on Jan. 6 and Justice Samuel Alito’s right-wing flags, have only added to them.
The same phrase was missing from the liberal justices’ dissent in Dobbs, and in Students for Fair Admissions v. President and Fellows of Harvard College, the 2023 decision which banned affirmative action in college admissions. Both cases had major consequences and were met with sharp dissent, but in neither was the split between the justices quite as strongly demonstrated as it was today.
Last week’s presidential debate between President Joe Biden and Donald Trump skipped a similarly pro forma show of respect: the traditional handshake that has occurred at nearly every presidential debate since 1976. The candidates’ lack of mutual respect would be obvious regardless, given the litany of personal attacks they — and their campaigns — trade daily, but the fact that they did not even pretend for that moment, as most candidates in modern history have, is a notable indication of the division throughout the country.
Sotomayor spoke directly about the court’s divide during an appearance earlier this year at Harvard University’s Radcliffe Institute, according to the New York Times
“There are days that I’ve come to my office after an announcement of a case and closed my door and cried.”
—Justice Sonia Sotomayor
That is a far jump from the days of Justice Ruth Bader Ginsburg, a staunch liberal, and Justice Antonin Scalia, a staunch conservative, setting aside vast ideological differences to become close friends.
In today’s 6-3 decision, the court held that “with respect to the President’s exercise of his core constitutional powers,” he maintains absolute immunity from criminal prosecution. This immunity extends even to acts at the “outer perimeter,” of the president’s official responsibilities.
The court did not rule that the president is immune for unofficial acts, nor did they determine which, if any, of the charges against Trump — who has been convicted of 34 state felony counts in New York and is under indictment for another 44 federal charges — are based on official acts.
“In this case, no court thus far has drawn that distinction, in general or with respect to the conduct alleged in particular,” Chief Justice John Roberts wrote for the majority. They left that decision to the judge overseeing Trump’s Jan. 6 case, Tanya S. Chutkan, of the U.S. District Court for the District of Colombia, placing the burden on the government to “rebut the presumption of immunity.”
Though it allows Trump’s Jan. 6 prosecution to continue, the decision could have major consequences for democratic institutions. “The relationship between the President and the people he serves has shifted irrevocably,” Sotomayor wrote in her dissent.
Sotomayor points out that if the president “orders the Navy’s Seal Team 6 to assassinate a political rival,” he would be immune from prosecution under the majority’s reasoning. The justices asked questions about this scenario during oral arguments, as did judges on the U.S. Court of Appeals for the District of Colombia Circuit, whose decision the Supreme Court vacated this morning.
“Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune,” Sotomayor wrote. “Immune, immune, immune.”
Jackson, writing separately, made a similar point. “Under the majority’s immunity regime, by contrast, the President can commit crimes in the course of his job even under circumstances in which no one thinks he has any excuse,” she wrote. “The law simply does not apply to him.”