A Supreme Court Out of Balance

Democracy Newsletter: August 2024

By Robert Katz

The threat to American democracy that a second Trump presidency would be was recently compounded by the Supreme Court’s immunity decision, Trump v. United States, raising even higher the stakes of the next election. The case typifies a court that is bent on abandoning judicial restraint and pursuing an activist right-wing agenda.
 
Before discussing that case, I would recall by way of contrast, another case about a different rogue president decided 50 years prior, United States v. Nixon. In Nixon, the question was whether the president could assert executive privilege in order to quash a subpoena in a criminal prosecution that sought to obtain tapes of Oval Office conversations about the Watergate burglary. The unanimous opinion, written by Chief Justice Warren Burger, a Nixon appointee, held that there was no such broad executive privilege. That privilege could be asserted in certain circumstances, such as where national security is genuinely at stake, and that would be determined by the judge who presides in the case reviewing the material claimed to be privileged in the privacy of his/her chambers. Nixon had to hand over the tapes and resigned shortly thereafter. The decision represented a careful balancing of the need of the president to communicate in confidence about sensitive matters and the needs of the justice system to obtain evidence when crimes are alleged to have been committed.
 
In contrast, the Trump case showed a court that is profoundly out of balance. The majority declared immunity from criminal prosecution for all of the president’s official acts. There is absolute immunity when the president exercises his “core” official powers, the kind that the Constitution explicitly grants to the president alone, such as exercising the pardon power or removing cabinet officials. For official actions that were not “core,” the court said immunity may be either absolute or presumptive, apparently unable to decide which. Even assuming the immunity is presumptive, the prosecutor would have to prove that the prosecution for those acts would not “pose any dangers of intrusion on the authority and functions of the Executive Branch,” a test that, if broadly interpreted, may be virtually impossible for a prosecutor to pass. The court said that the President’s acts would be considered “official” if they were “‘not manifestly or palpably beyond [his] authority.” Finally, the court held that, as even Trump’s lawyers admitted, the president could be prosecuted for unofficial acts; but with “official acts” defined so broadly, the opinion leaves the reader to wonder whether “unofficial acts” will prove to be a vanishingly small category.
 
Where does the majority derive such broad immunity? Not from the text of the Constitution, which explicitly states that an official subject to removal by impeachment, such as the president, can’t be criminally punished by Congress but “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Not from historical understanding of original intent: the Sotomayor dissent shows how the framers were clear that presidents were not kings above the law, without so much as hinting that that proposition would be nullified if the president were to be acting in an official capacity. It seems the majority, so often touting its opinions as following the Constitution’s original meaning, use history when it furthers their agenda and ignores it when it does not.
 
It can be admitted that, as in the case of executive privilege, there are circumstances in which presidential immunity is appropriate. Legal scholars would agree that U.S. courts should not be using the criminal law to second-guess a presidential decision to deploy a drone strike to kill an American on foreign soil who is in league with an enemy of the United States. But instead of carefully balancing the need not to inhibit the legitimate exercise of presidential powers with the need to prevent the abuse of those powers to punish political enemies, or for other nefarious ends, the Trump majority focused almost exclusively on the former need and seems blind to the latter. The majority could have crafted a narrower judicial rule that would allow a criminal case against the president to go forward if the presiding judge concludes preliminarily that the evidence clearly shows his manifest abuse of power. The majority appears not to have considered such an option, so preoccupied were they by their focus on protecting presidential power.
 
That is one case, but there were many more. It isn’t hyperbolic to say that the current court is keenly interested in protecting the rights of polluters and other corporate malefactors to challenge government regulations and the rights of gun enthusiasts to the arsenal of their choice, while interested not at all in protecting the rights of women to reproductive health and very little in protecting minority voting rights. These cases, like the immunity decision, show a court profoundly out of balance.
 
The prospect of a man who has regularly flouted the law returning to the world’s most powerful political office under the protection of the Supreme Court’s immunity ruling is chilling to say the least. His defeat, on the other hand, would show that democracy in America is still strong. If that defeat is accompanied by the return of a Democratic majority in Congress, it will allow a President to address another threat to democracy — a Supreme Court consistently guided more by an activist right wing ideology than by a sensible reading of the law. The only effective remedy would be some reform that would change the composition of the court itself and restore balance — and the respect of our citizens — to the nation’s highest tribunal.
 
[Editor’s note: On July 29, President Joe Biden published three proposed reforms for the Supreme Court.]

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Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court 1993–2018.

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