In addition to weakening Congress, the Roberts court has laid the groundwork for an authoritarian presidency. Its ruling in Trump v. United States last year, where the court created the doctrine of “presidential immunity” out of thin air, allows presidents to commit a wide range of crimes without fear of future prosecution. The 6–3 ruling concluded that presidents should have “presumptive immunity” for their official acts in general. For acts that fall within the presidency’s “core constitutional powers,” like issuing pardons or commanding the military, presidents now enjoy absolute immunity.
There is no constitutional basis whatsoever for that framework, or for the concept of “presidential immunity” in general. The Constitution itself only explicitly gives immunity to members of Congress in certain circumstances, such as travel to and from the Capitol and when participating in speeches and debates. The courts have also long recognized judicial immunity as an irreducible feature of the Anglo-American legal system. Presidential immunity, on the other hand, did not exist until Donald Trump asked for it and the Roberts court gave it to him.
It is hard to overstate the decision’s radicalism. While the forms of legislative and judicial immunity that exist in our system are narrow in scope, presidential immunity is not. Members of Congress and federal judges can still be prosecuted for taking bribes to perform an official act. Trump, on the other hand, could issue pardons in exchange for personal payments of $1 million and still fall within the immunity ruling’s bounds. The Roberts court’s ruling is not merely a shield against overzealous prosecutors; it is a blank check for corruption and abuse of power.
Justice Sonia Sotomayor warned in her dissent that, under the ruling’s own terms, a president could lawfully order SEAL Team Six to assassinate his political rivals and still retain immunity. Roberts replied that his colleague was “fear mongering on the basis of extreme hypotheticals.” Beyond that, he did not seriously dispute her interpretation.
The collective impact of the Roberts court’s ruling is far more disastrous than the sum of the individual parts. For almost 250 years, Americans defined themselves by their civic republicanism—their cultural and philosophical inclination toward self-government, their ability to address problems and issues through democratic means, their opposition to despotic or hereditary leadership, and their respect for the rule of law.
The Roberts court has not extinguished these traditions altogether, but it has made them much harder to maintain. It is harder to keep faith in the nation’s political system when anti-corruption laws go unenforced. It is harder to maintain the rule of law when the nation’s highest court says the president can commit crimes. Self-government is impossible when elected officials know their power comes from gerrymandered districts and wealthy donors instead of the people.