Justice Sotomayor dissent: ‘The President is now a king above the law’ (2024)

Sotomayor spent about 25 minutes reading her dissent from the bench Monday, a strong sign of her opposition to the ruling that came on the final day of the high court’s term. She said the ruling disregards motive and allows a president who wields power for even the most corrupt purposes to be immune from criminal prosecution.

“With fear for our democracy, I dissent,” she concluded.

Jackson also wrote separately.

It was a sweeping decision that expanded the definition of presidential powers in this country and narrowed the scope of Trump’s D.C. election interference trial, while adding what will probably be months of delay to the case.

Chief Justice John G. Roberts Jr., writing for the majority, said the liberal justices’ dissent struck “a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”

But the liberal justices said their fear is justified. Sotomayor warned that a president is now immune from criminal prosecution if he orders the Navy’s SEAL Team 6 to assassinate a political rival, or if he organizes a coup to hold on to political power.

If he takes a bribe in exchange for a pardon?

“Immune. Immune, immune, immune,” the dissent reads.

“Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done,” Sotomayor continued. “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”

She accused the majority of ignoring legal precedent and endorsing an “expansive vision of Presidential immunity” that goes far beyond what the founders, the executive branch — and even Trump’s lawyers — have ever recognized.

Particularly “nonsensical,” Sotomayor wrote, was the ruling that prosecutors could not use Trump’s official acts as evidence in a trial — even if the official acts are related to allegations around unofficial acts.

The indictment against Trump, for example, alleges that he exploited the power of his own Justice Department to convince states to replace their legitimate 2020 electors with Trump’s fraudulent electors. The justices ruled Monday that Trump’s conversations with his Justice Department officials would qualify as official acts and could not be used as evidence or to establish motive.

“Argument by argument, the majority invents immunity through brute force,” Sotomayor wrote, adding that the ruling narrows the line between official acts and unofficial ones so much that it makes prosecuting an unofficial act nearly impossible. “Under scrutiny, its arguments crumble.”

“Today’s Court, however, has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts,” Sotomayor wrote.

Jackson, a former public defender, wrote that there are plenty of protections already in place for a criminal defendant facing trial — such as the presumption of innocence until proved guilty or the burden of prosecutors to prove guilt beyond a reasonable doubt.

This model applies to every criminal defendant in the country, she wrote, and, up until the ruling Monday, the president of the United States.

In her dissent, she accused the majority of abandoning the “individual accountability model” and introducing a new “Presidential accountability model” that authorizes the judicial branch to exempt the president from punishment under law.

“The majority of my colleagues seem to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm,” Jackson wrote. “I fear that they are wrong. But, for all our sakes, I hope that they are right.”

Tobi Raji contributed to this report.