The Supreme Court Creates a Lawless Presidency
The Supreme Court’s radical decision handing the president broad immunity from criminal prosecution on Monday will rightly be understood as enormously increasing the power and enormously reducing the accountability of the president.
But it should also be understood as a decision about the court’s own power and accountability. In casting aside the text, structure and history of the Constitution in favor of gauzy concerns about the need to “safeguard the independence and effective functioning of the executive branch” and to “enable the president to carry out his constitutional duties without undue caution,” the court reveals that it will rule — and rule us all — based on its own free-floating and distorted vision of an optimal constitutional order.
It is increasingly clear that this court sees itself as something other than a participant in our democratic system. It sees itself as the enforcer of the separation of powers, but not itself subject to that separation.
Most immediately, the decision continues to shield Donald Trump from meaningful accountability for his actions before and on Jan. 6, 2021. The court had already given Mr. Trump a decisive win in the form of its monthslong delay in deciding this case — his federal criminal trial for election interference, originally scheduled to begin on March 4, appears less and less likely ever to come to pass.
But the opinion itself grants Mr. Trump a more enduring win, and democracy an even more enduring loss: It jettisons the long-settled principle that presidents, like all others, are subject to the operation of law, and announces that all official acts taken by a president are entitled to either absolute or presumptive immunity from criminal prosecution.
The court’s misguided decision in this case could not come at a more dangerous time. It has removed a major check on the office of the presidency at the very moment when Mr. Trump is running for office on a promise to weaponize the apparatus of government against those he views as his enemies.
