I was wondering what you thought about the presidential immunity decision. Personally, I think you're far kinder to it than I feel. I think this was an incredibly bad decision; not only was it badly thought out, various justices completely betrayed their principles. The opinion is basically nonsense from an originalist or textualist standpoint. Roberts I don't think claims to be an originalist, so that's not an issue for him, but the others have to varying degrees, and this is the antithesis of such an opinion. The others in the majority went against their own avowed principles with this (Barrett was the least bad of them in this regard, admittedly).
Now, I went into this case skeptical on the claims of presidential immunity, even the lawsuit immunity from Nixon v. Fitzgerald. I found Charles C.W. Cooke's argument at National Review (https://www.nationalreview.com/2024/04/there-is-no-immunity-clause/) that there's simply no immunity very persuasive. But I thought maybe the majority could change my mind. Instead it largely just reinforced to me that the Supreme Court was just making stuff up.
I think this decision, while not as bad as Roe v. Wade on the whole, is even less based on the Constitution than that decision was. John Hart Ely memorably declared that Roe "is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be" and that applies even more here. At least Roe was able to point to part of the Constitution that supposedly justified a right to an abortion, which is more than this opinion did! The majority opinion says "True, there is no “Presidential immunity clause”". That right then and there seems like it should end the question unless it immediately follows it up with an explanation of what clause this can be found in. Instead the next sentence is "But there is no "separation of powers clause" either... Yet that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Executive power solely in the President" which does not actually answer the problem; even if we were to suppose that the three separate articles implicitly gives separation of powers, no such thing can be said for presidential immunity. And I would say that separation of powers is found insofar as it gives explicit powers to the different branches and therefore the branches don't get powers not granted. Quite honestly, those two sentences seem all that is necessary to me to prove presidential immunity is nonsense, and they're not in the dissent, but the majority opinion! Again, even Roe was able to point to a part of the Constitution that supposedly gave right to an abortion, something this opinion seems unable to.
Also, on the "Seal Team 6" thing, I feel the criticisms I see of Sotomayor's invocation of it seem to largely miss the mark. People by and large point to the functional difficulties of the President doing so (as you do in your article), but that's not saying that immunity isn't given under the decision, merely that it is either impractical or that if a President is doing that, we're past the point where immunity matters anyway. The only person I personally saw who gave a real response to it was someone who asserted that the decision saying "The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress" meant commanding the military didn't count because congress has some power over the military too; I have some issues with that, namely that the Constitution still indicates each separate exclusive power over the military, and more importantly if that was the case, Roberts could've just said that in response to the dissent rather than just dismissing it as extreme hypotheticals. Would've only taken an extra paragraph.
Now, you do say it's a "first draft" opinion, and while you seemed to be using this to say it could be developed later, it reminded me of how Akhil Amar on his podcast said the whole thing felt like an unfinished rough draft (I don't think he used those exact words, though), and that it seemed like the Supreme Court didn't bother to get the opinion together right because they rushed through it due to not wanting to spend an extra day or two fixing it up before going on their vacation. He really disliked it, too, and said it was one of the worst Supreme Court decisions during his lifetime, and possibly the worst; I wouldn't go that far, but I understand his sentiments (he discussed it in "Show 185").
So maybe the reason for the lack of addressing that point was just because they wanted to go on their vacations, but if that's the case it sure seems like they should've spent an extra day fixing it. The opinion is not only bad in its basic conclusions, it's bad in that it's hard to actually draw anything real out of those conclusions. I suppose this isn't necessarily the result of rushing... perhaps Roberts tried to sidestep various things to keep his majority together?
Granted, for my problems with the majority opinion, I have trouble with the other ones also. Barrett's concurring opinion is an improvement on the majority opinion, but still suffers from some of the same issues (it's actually puzzling she signed onto so much of the majority opinion given her concurrence seems to disagree so much with the reasoning, even if she mostly reaches the same conclusions). Thomas's concurring opinion did seem like it brought up some good points, but it makes him look like a hypocrite when he offers such an originalist/textualist argument while simultaneously signing onto an opinion that is practically the antithesis of that. And while I think the dissents got things more right than the majority opinion, it is annoying to see Sotomayor suddenly go so strongly originalist/textualist after rejecting that in so many other opinions. I also would've preferred it if the dissents had said that Nixon v. Fitzgerald was decided incorrectly, but perhaps they did not view that as necessary for the case.
Honestly, if one compares this opinion to Dobbs, it's almost like a bit of a mirror universe. The general reasoning the majority used in Dobbs should have led them to dissent in this one, and the general reasoning the dissent used in Dobbs should have led them to join the majority opinion! While I don't think anyone in the majority looks good in this specific case, when considered in the context of other cases I don't think any justices come out looking good.
Maybe there is some actually good argument for the existence of presidential immunity, but it's certainly not in the majority opinion in this case.
There's another issue with this opinion. Because the majority opinion is so (in my view) obviously forced, it just helps spread the narrative that the Court is just doing stuff for partisan reasons, with its 6-3 split divided among the parties of those who nominated the justices. I don't think most of the justices are doing that, but it sure makes it harder to make that case when we see opinions like this.
I know this is a lot of rambling on my part, some of it unfocused, but I've been wanting to post my general thoughts somewhere and thought this might be a good place.
I have read this carefully twice now, and I just wanted to say: I think you're right! I don't really disagree with much of anything you've written here. The conservative justices did a bad job and it was a terrible look. The consequences of this decision are far less significant (and far less dire) than something like Roe, but the complaints that its reasoning was Roe-like are... well, I mean, at least Roe seemed to have involved reading the Constitution at some point, even if it did so in an insanely stupid and violently destructive way.
I think my biggest disagreement with you is the suggestion that they could have taken another day or two to clean this up. I don't think so. The majority opinion is *fundamentally* defective. There would be no way to make it more acceptable except to rebuild it from the ground up, taking account of the historical evidence.
I guess the other thing is that I genuinely like Barrett's concurrence, and I think it is legally correct. I liked the C.C.W. Cooke piece a lot, too, when it first ran, but Barrett's argument changed my mind toward "there is a little immunity." It wasn't long enough to explore that argument adequately, but it put me on the path toward it.
I think Barrett joined a much worse majority opinion, though, because she was trying to cabin it. If she says that her much more limited view of presidential immunity is compatible with the majority's view, and the majority agrees with her about (and it *must* have, because her opinion was a concurrence rather than a concurrence-in-the-judgment) -- well, then, her limited view of presidential opinion *must* be compatible with the majority's view! And therefore the majority's view must be a lot narrower than it looks on first impression. That, at least, was what made me start to recognize that the incredibly vague language of the decision could be read not just very broadly, but also very narrowly, and that the Court has committed to neither direction yet.
On the other hand, maybe that's wishful thinking on my part. Most of the feedback I have received about the article (elsewhere, not here) is that I was too mealy-mouthed, too both-sidesy, not willing enough to take the conservatives to task for their hypocrisy, and too eager to put the blame on others. (Readers who felt this way tended not to recognize that I called Justice Sotomayor's dissent "Scalia-esque," and that this the highest compliment I am capable of bestowing.) Still, perhaps they are correct. Some of my restraint was due to Law & Liberty's "above the fray" house editorial voice (a prudent editorial decision), which meant that some of my biggest swings (mostly at Trump) had to be dialed back, but it may be true that I have a problem writing about the conservative justices. I don't share the Left's view that they're simply corrupt hypocrites willing to do anything to advance their political team. (I think this view is stupid, actually, if you look at their voting records.) But, if that's not it, then what the hell *are* they doing? That might be the biggest question in American politics for me right now: "what the hell do Clarence Thomas and Neil Gorsuch think they are doing over there?" Coming on the back of Trump v. Anderson, where the justices *again* abandoned originalism in a case specific to Trump, *again* throwing up grand majestic vaguenesses to prevent any further action in lower courts...
I have a friend who said after Trump v. Anderson that he isn't mad at the Court, because he never expected them to do anything but act political, but he's mad at ME, because they betrayed my faith in them, and, instead of going nuclear on them, I wagged my finger in disappointment. How dare I sell myself to the conservative justices so cheaply?!
I dunno. There's a lot to think about after this decision, and none of it makes for happy thoughts. (I have also now rambled unfocusedly for a bit, so we're even.)
EDIT: There's more to be said about the constitutional case for limited presidential immunity for acts as commander-in-chief -- I alluded VERY quickly to some arguments in favor in my article -- but I should probably make clear that I don't blame Sotomayor at all for bringing up the hypo in her dissent. It's her job to make the stakes of the legal case clear to the other justices and to the future law students who will read this in a casebook. (Scalia always said he was trying to write clearly for the casebooks.)
I DO blame the fawning and hysterical press that ran that hypo up and down the flagpole with zero context, so that the next week was full of idiots on Reddit and left-wing news sites asking Joe Biden to use his "newfound authority to assassinate Donald Trump." Sotomayor did nothing wrong (as you correctly noted, and as my article admitted, there's a real chance that, under the majority decision, *she is correct*!), but it was presented to the public in a way that degraded the public discourse, and this was done (I think) for plainly political ends (the press hates SCOTUS now that it's conservative for the first time since the New Deal, and they will do anything to destroy it). (That lady won a Pulitzer for driving down the shore to prove that Alito's beach house flew an old patriotic flag!)
So no shade on Sotomayor! She did yeomen's work here, something I've literally never said about Sotomayor. But shade on others.
"I think my biggest disagreement with you is the suggestion that they could have taken another day or two to clean this up. I don't think so. The majority opinion is *fundamentally* defective. There would be no way to make it more acceptable except to rebuild it from the ground up, taking account of the historical evidence."
I want to clarify this a bit. What Akil Amar was saying in his podcast, from what I recall (this was a few weeks ago and I only listened once) was that the opinion is opaque in a lot of ways as to what it's actually deciding, and thinks this was from them rushing through things to get on their vacation. An extra day or two wouldn't have fixed the opinion in his view, but could have at least made what it actually decided more understandable. Basically, his contention as I understand it is that if they took just a little extra time to refine the opinion, it could shift from a confusing opinion with bad logic into a clearer opinion with bad logic. The bad logic remains, but at least you better know what it's deciding.
"I guess the other thing is that I genuinely like Barrett's concurrence, and I think it is legally correct. I liked the C.C.W. Cooke piece a lot, too, when it first ran, but Barrett's argument changed my mind toward "there is a little immunity." It wasn't long enough to explore that argument adequately, but it put me on the path toward it."
Well, Cooke seemed to like her opinion also (https://www.nationalreview.com/corner/im-with-justice-barrett-on-trump-v-united-states/) and I do agree it's superior to the majority opinion. While I still have problems, it's an improvement in both reasoning (it approaches it in a better way than any kind of immunity) and conclusion (paring back the most extreme parts of the majority decision), and I think we would've seen less backlash to the majority opinion if it had followed her lead.
Oh, I see, I misunderstood what Amar was saying. (You cited the episode and I could have listened and I didn't so that's on me!)
I wonder, though... I wonder whether clarifying what they actually meant would have exposed such deep flaws in their reasoning that it would have torn the majority apart and led to a fractured judgment. I mean, they released it JULY FIRST, which is crazy late! It's not like they didn't have time! So maybe the magnificent vagueness and lack of clarity about what it decided was a feature, not a bug.
I comfort myself at night by insisting that decisions this vague and confusing won't be able to bind the lower courts (because the lower courts don't know what it means any more than we do) and that decisions this unreasoned don't enjoy strong precedential status. So maybe SCOTUS overturns this the next time it comes up (... in another 200 years, maybe).
I hate when this happens: my team gives me the result I think I wanted, but in a manner I definitely didn't want...
I was wondering what you thought about the presidential immunity decision. Personally, I think you're far kinder to it than I feel. I think this was an incredibly bad decision; not only was it badly thought out, various justices completely betrayed their principles. The opinion is basically nonsense from an originalist or textualist standpoint. Roberts I don't think claims to be an originalist, so that's not an issue for him, but the others have to varying degrees, and this is the antithesis of such an opinion. The others in the majority went against their own avowed principles with this (Barrett was the least bad of them in this regard, admittedly).
Now, I went into this case skeptical on the claims of presidential immunity, even the lawsuit immunity from Nixon v. Fitzgerald. I found Charles C.W. Cooke's argument at National Review (https://www.nationalreview.com/2024/04/there-is-no-immunity-clause/) that there's simply no immunity very persuasive. But I thought maybe the majority could change my mind. Instead it largely just reinforced to me that the Supreme Court was just making stuff up.
I think this decision, while not as bad as Roe v. Wade on the whole, is even less based on the Constitution than that decision was. John Hart Ely memorably declared that Roe "is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be" and that applies even more here. At least Roe was able to point to part of the Constitution that supposedly justified a right to an abortion, which is more than this opinion did! The majority opinion says "True, there is no “Presidential immunity clause”". That right then and there seems like it should end the question unless it immediately follows it up with an explanation of what clause this can be found in. Instead the next sentence is "But there is no "separation of powers clause" either... Yet that doctrine is undoubtedly carved into the Constitution’s text by its three articles separating powers and vesting the Executive power solely in the President" which does not actually answer the problem; even if we were to suppose that the three separate articles implicitly gives separation of powers, no such thing can be said for presidential immunity. And I would say that separation of powers is found insofar as it gives explicit powers to the different branches and therefore the branches don't get powers not granted. Quite honestly, those two sentences seem all that is necessary to me to prove presidential immunity is nonsense, and they're not in the dissent, but the majority opinion! Again, even Roe was able to point to a part of the Constitution that supposedly gave right to an abortion, something this opinion seems unable to.
Also, on the "Seal Team 6" thing, I feel the criticisms I see of Sotomayor's invocation of it seem to largely miss the mark. People by and large point to the functional difficulties of the President doing so (as you do in your article), but that's not saying that immunity isn't given under the decision, merely that it is either impractical or that if a President is doing that, we're past the point where immunity matters anyway. The only person I personally saw who gave a real response to it was someone who asserted that the decision saying "The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress" meant commanding the military didn't count because congress has some power over the military too; I have some issues with that, namely that the Constitution still indicates each separate exclusive power over the military, and more importantly if that was the case, Roberts could've just said that in response to the dissent rather than just dismissing it as extreme hypotheticals. Would've only taken an extra paragraph.
Now, you do say it's a "first draft" opinion, and while you seemed to be using this to say it could be developed later, it reminded me of how Akhil Amar on his podcast said the whole thing felt like an unfinished rough draft (I don't think he used those exact words, though), and that it seemed like the Supreme Court didn't bother to get the opinion together right because they rushed through it due to not wanting to spend an extra day or two fixing it up before going on their vacation. He really disliked it, too, and said it was one of the worst Supreme Court decisions during his lifetime, and possibly the worst; I wouldn't go that far, but I understand his sentiments (he discussed it in "Show 185").
So maybe the reason for the lack of addressing that point was just because they wanted to go on their vacations, but if that's the case it sure seems like they should've spent an extra day fixing it. The opinion is not only bad in its basic conclusions, it's bad in that it's hard to actually draw anything real out of those conclusions. I suppose this isn't necessarily the result of rushing... perhaps Roberts tried to sidestep various things to keep his majority together?
Granted, for my problems with the majority opinion, I have trouble with the other ones also. Barrett's concurring opinion is an improvement on the majority opinion, but still suffers from some of the same issues (it's actually puzzling she signed onto so much of the majority opinion given her concurrence seems to disagree so much with the reasoning, even if she mostly reaches the same conclusions). Thomas's concurring opinion did seem like it brought up some good points, but it makes him look like a hypocrite when he offers such an originalist/textualist argument while simultaneously signing onto an opinion that is practically the antithesis of that. And while I think the dissents got things more right than the majority opinion, it is annoying to see Sotomayor suddenly go so strongly originalist/textualist after rejecting that in so many other opinions. I also would've preferred it if the dissents had said that Nixon v. Fitzgerald was decided incorrectly, but perhaps they did not view that as necessary for the case.
Honestly, if one compares this opinion to Dobbs, it's almost like a bit of a mirror universe. The general reasoning the majority used in Dobbs should have led them to dissent in this one, and the general reasoning the dissent used in Dobbs should have led them to join the majority opinion! While I don't think anyone in the majority looks good in this specific case, when considered in the context of other cases I don't think any justices come out looking good.
Maybe there is some actually good argument for the existence of presidential immunity, but it's certainly not in the majority opinion in this case.
There's another issue with this opinion. Because the majority opinion is so (in my view) obviously forced, it just helps spread the narrative that the Court is just doing stuff for partisan reasons, with its 6-3 split divided among the parties of those who nominated the justices. I don't think most of the justices are doing that, but it sure makes it harder to make that case when we see opinions like this.
I know this is a lot of rambling on my part, some of it unfocused, but I've been wanting to post my general thoughts somewhere and thought this might be a good place.
I have read this carefully twice now, and I just wanted to say: I think you're right! I don't really disagree with much of anything you've written here. The conservative justices did a bad job and it was a terrible look. The consequences of this decision are far less significant (and far less dire) than something like Roe, but the complaints that its reasoning was Roe-like are... well, I mean, at least Roe seemed to have involved reading the Constitution at some point, even if it did so in an insanely stupid and violently destructive way.
I think my biggest disagreement with you is the suggestion that they could have taken another day or two to clean this up. I don't think so. The majority opinion is *fundamentally* defective. There would be no way to make it more acceptable except to rebuild it from the ground up, taking account of the historical evidence.
I guess the other thing is that I genuinely like Barrett's concurrence, and I think it is legally correct. I liked the C.C.W. Cooke piece a lot, too, when it first ran, but Barrett's argument changed my mind toward "there is a little immunity." It wasn't long enough to explore that argument adequately, but it put me on the path toward it.
I think Barrett joined a much worse majority opinion, though, because she was trying to cabin it. If she says that her much more limited view of presidential immunity is compatible with the majority's view, and the majority agrees with her about (and it *must* have, because her opinion was a concurrence rather than a concurrence-in-the-judgment) -- well, then, her limited view of presidential opinion *must* be compatible with the majority's view! And therefore the majority's view must be a lot narrower than it looks on first impression. That, at least, was what made me start to recognize that the incredibly vague language of the decision could be read not just very broadly, but also very narrowly, and that the Court has committed to neither direction yet.
On the other hand, maybe that's wishful thinking on my part. Most of the feedback I have received about the article (elsewhere, not here) is that I was too mealy-mouthed, too both-sidesy, not willing enough to take the conservatives to task for their hypocrisy, and too eager to put the blame on others. (Readers who felt this way tended not to recognize that I called Justice Sotomayor's dissent "Scalia-esque," and that this the highest compliment I am capable of bestowing.) Still, perhaps they are correct. Some of my restraint was due to Law & Liberty's "above the fray" house editorial voice (a prudent editorial decision), which meant that some of my biggest swings (mostly at Trump) had to be dialed back, but it may be true that I have a problem writing about the conservative justices. I don't share the Left's view that they're simply corrupt hypocrites willing to do anything to advance their political team. (I think this view is stupid, actually, if you look at their voting records.) But, if that's not it, then what the hell *are* they doing? That might be the biggest question in American politics for me right now: "what the hell do Clarence Thomas and Neil Gorsuch think they are doing over there?" Coming on the back of Trump v. Anderson, where the justices *again* abandoned originalism in a case specific to Trump, *again* throwing up grand majestic vaguenesses to prevent any further action in lower courts...
I have a friend who said after Trump v. Anderson that he isn't mad at the Court, because he never expected them to do anything but act political, but he's mad at ME, because they betrayed my faith in them, and, instead of going nuclear on them, I wagged my finger in disappointment. How dare I sell myself to the conservative justices so cheaply?!
I dunno. There's a lot to think about after this decision, and none of it makes for happy thoughts. (I have also now rambled unfocusedly for a bit, so we're even.)
EDIT: There's more to be said about the constitutional case for limited presidential immunity for acts as commander-in-chief -- I alluded VERY quickly to some arguments in favor in my article -- but I should probably make clear that I don't blame Sotomayor at all for bringing up the hypo in her dissent. It's her job to make the stakes of the legal case clear to the other justices and to the future law students who will read this in a casebook. (Scalia always said he was trying to write clearly for the casebooks.)
I DO blame the fawning and hysterical press that ran that hypo up and down the flagpole with zero context, so that the next week was full of idiots on Reddit and left-wing news sites asking Joe Biden to use his "newfound authority to assassinate Donald Trump." Sotomayor did nothing wrong (as you correctly noted, and as my article admitted, there's a real chance that, under the majority decision, *she is correct*!), but it was presented to the public in a way that degraded the public discourse, and this was done (I think) for plainly political ends (the press hates SCOTUS now that it's conservative for the first time since the New Deal, and they will do anything to destroy it). (That lady won a Pulitzer for driving down the shore to prove that Alito's beach house flew an old patriotic flag!)
So no shade on Sotomayor! She did yeomen's work here, something I've literally never said about Sotomayor. But shade on others.
"I think my biggest disagreement with you is the suggestion that they could have taken another day or two to clean this up. I don't think so. The majority opinion is *fundamentally* defective. There would be no way to make it more acceptable except to rebuild it from the ground up, taking account of the historical evidence."
I want to clarify this a bit. What Akil Amar was saying in his podcast, from what I recall (this was a few weeks ago and I only listened once) was that the opinion is opaque in a lot of ways as to what it's actually deciding, and thinks this was from them rushing through things to get on their vacation. An extra day or two wouldn't have fixed the opinion in his view, but could have at least made what it actually decided more understandable. Basically, his contention as I understand it is that if they took just a little extra time to refine the opinion, it could shift from a confusing opinion with bad logic into a clearer opinion with bad logic. The bad logic remains, but at least you better know what it's deciding.
"I guess the other thing is that I genuinely like Barrett's concurrence, and I think it is legally correct. I liked the C.C.W. Cooke piece a lot, too, when it first ran, but Barrett's argument changed my mind toward "there is a little immunity." It wasn't long enough to explore that argument adequately, but it put me on the path toward it."
Well, Cooke seemed to like her opinion also (https://www.nationalreview.com/corner/im-with-justice-barrett-on-trump-v-united-states/) and I do agree it's superior to the majority opinion. While I still have problems, it's an improvement in both reasoning (it approaches it in a better way than any kind of immunity) and conclusion (paring back the most extreme parts of the majority decision), and I think we would've seen less backlash to the majority opinion if it had followed her lead.
Oh, I see, I misunderstood what Amar was saying. (You cited the episode and I could have listened and I didn't so that's on me!)
I wonder, though... I wonder whether clarifying what they actually meant would have exposed such deep flaws in their reasoning that it would have torn the majority apart and led to a fractured judgment. I mean, they released it JULY FIRST, which is crazy late! It's not like they didn't have time! So maybe the magnificent vagueness and lack of clarity about what it decided was a feature, not a bug.
I comfort myself at night by insisting that decisions this vague and confusing won't be able to bind the lower courts (because the lower courts don't know what it means any more than we do) and that decisions this unreasoned don't enjoy strong precedential status. So maybe SCOTUS overturns this the next time it comes up (... in another 200 years, maybe).