The stinging dissent to Trump immunity ruling

Justice Sonia Sotomayor’s sharp dissent against the US Supreme Court’s majority decision granting Donald Trump limited immunity will be remembered for its stout defence of democratic principles. It’s a rebuke of the dangerous precedent that put a president above the law
Justice Sonia Sotomayor.
Justice Sonia Sotomayor.(Photo| AP)

Be you ever so high, the law is above you. That adage recently yielded to the dictum that Donald J Trump is above it all. On July 1, the last day before the Supreme Court of the US (SCOTUS) rose for summer recess and three days before the US celebrated its 248th year of independence, the justices delivered an epochal verdict. It was a severe blow to the democratic principles revered in the oldest democracy—it rendered POTUS (President of the US) an emperor of all he surveyed.

The judgement is worth reading—not for the words of the conservative majority of six Republican-appointed justices, who went beyond providing a protective cover to Trump in an election year—but the brilliant dissent from the only Latino justice in SCOTUS’s 234-plus years’ history, Sonia Sotomayor.

In her scathing dissent, Justice Sotomayor accused the SCOTUS majority of making Trump a “king above the law” for limiting the scope of criminal charges against the former president for his role in the January 6, 2021 riot at the US Capitol and efforts to overturn the election. Sotomayor called the majority verdict “utterly indefensible”. She wrote in a sharp language rare from the judicial pulpit: “The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding.” Other liberal justices Elena Kagan and Ketanji Brown Jackson joined Sotomayor—all three Democratic appointments—with Jackson referring to the ruling’s consequences as a “five-alarm fire”.

Justice Sonia Sotomayor.
Biden slams US Supreme Court ruling on 'presidential immunity', contrasts with Trump on obeying rule of law

Dissents have always mattered. They go beyond the present. Charles Evan Hughes, the US chief justice through the 1930s, famously said, “A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed.” He has been quoted multiple times in all democratic polities including in India, as in the famous dissent of Justice H R Khanna in the infamous Additional District Magistrate, Jabalpur case of 1976.

While Trump claimed the decision was “a huge victory for democracy”, Biden called it a “dangerous precedent”. The Nine on the Bench have become an issue in the November POTUS elections. Trump is a felon convicted on 34 counts. He is facing more criminal prosecutions in the classified documents’ case and the January 6 riot case.

It was in the context of these prosecutions that Trump raised the issues of executive privilege and absolute immunity for POTUS. Washington district Judge Tanya Chutkan, on December 1, 2023 rejected Trump’s argument that he could not face prosecution for official actions he took as president, as the US presidency “does not confer a lifelong ‘get-out-of-jail-free’ pass”. Trump’s appeal to the federal appellate jurisdiction failed. From that emerged the docket before SCOTUS, which was certified fit to be heard by the Nine.

The ruling by the six in majority—Chief Justice John Roberts authoring it, and justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joining in—is that Trump had “broad protection for actions that fell within his official responsibilities as POTUS”. The effect is that the complex task of determining how to apply the ‘broad immunity’ in the four-count criminal indictment is left to the pending trial in the lower court. It is an escape route for Trump. Chutkan will have to conduct a detailed examination of the indictment to determine which of Trump’s actions were official and must be stricken from the case and which were private acts that can proceed to trial. Easy to suggest, but near impossible to carry out.

The same SCOTUS had, on June 24, 2022 in the Dobbs vs Jackson Women’s Health Organization decision, removed the federal constitutional right to abortion for individuals in the US, which had been in place for almost 50 years, on the historical ground that ‘abortion’ was not even contemplated by the framers of the US Constitution. But they forgot ‘history’ in the Trump immunity case. Of late, Roberts’ court has morphed into an openly partisan Republican one.

This is where the dissent of Justice Sotomayor kicks in. She was ruthless in her choice of words. And she chose to read her 29-page dissent for 25 minutes, looking at the audience when she emphasised her stinging dissent. She read, “The president of the US is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.”

Be you ever so high—the principle has roots in English common law and has influenced American legal thought. It aligns with democratic ideals and prevents tyranny. Remember that Trump has promised to be a dictator on Day One of his presidency. Any Supreme Court is a political institution as justices Benjamin Cardozo, Louis Brandeis and our own V R Krishna Iyer branded them.

Lest the SCOTUS majority claimed they were abiding by Rule of the Law, some punchlines from the Sotomayor dissent have gone viral: “Orders the Navy Seal Team 6 to assassinate a political rival? Immune. Organises a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune, immune, immune.”

Narasimhan Vijayaraghavan

Advocate, Madras High Court

(Views are personal)

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