The Supreme Court Term That Fundamentally Changed America

As the dust settles from Trump v. United States, those paying attention look out over the wreckage, contemplating an unbounded future President Trump, a system of checks and balances toppled, a super-executive free to commit crimes with impunity. 

“Trump v. United States is one of the most, if not the most, authoritarian court opinions I have ever read in U.S. law,” Blake Emerson, professor of law and political science at UCLA, told TPM. “It has a theory that in order for presidents to be able to exercise their responsibilities, they must have absolute power within this certain sphere that can’t be held to criminal account — that’s an unprecedented conclusion.”

The landmark Supreme Court ruling granted former presidents wide swaths of criminal immunity. For “core constitutional powers” that immunity is absolute; for foggily defined other official acts, there is “presumptive” immunity — a standard the Court did not bother to define or explain how to overcome. 

Two days after the decision landed, experts are still reeling at the ramifications of this novel legal structure and the nefarious uses to which the wrong President could put these powers. The magnitude of the earthquake in the structure of our government is immediately clear, even if the specific ways in which it will play out are not.

“This is one of the most important Supreme Court cases of the past 100 years,” Emerson said. “I’d put it up there with cases like Shelby County v. Holder, Plessy v. Ferguson, Dred Scott.” 

David Super, a Georgetown Law School professor, ranked it alongside Bush v. Gore and another case from this Supreme Court term, the 14th Amendment disqualification case, in which the justices “effectively read the insurrection clause right out of the Constitution,” he said.

Sweeping Immunity

Both buckets of immunity the Court established worry experts, but for different reasons. For the “core constitutional powers” — which already “have no checks and balances,” Super said, pointing to powers like the President’s role as Commander in Chief — the lack of limit on what the President can do appears breathtaking. 

“If a president says, ‘we’re going to have an auction and I’m gonna veto or sign a bill based on who pays me more’ — that’s not prosecutable,” Super said. “‘Want to be a Supreme Court justice for the low, low sum of x?’ Not prosecutable, since appointing the highest offices is the preclusive power of the President.”  

The total immunity will also incentivize presidents to try to shoehorn any potentially questionable behavior into those powers. Some of the justices are clearly already worried about that reality; Justice Sonia Sotomayor in her dissent specifically singled out the Constitution’s “Take Care” provision as one that the majority was already reading so broadly that it, for example, covered much of Trump’s 2020 attempt to overturn the election. Such an “expansive view of core power will effectively insulate all sorts of noncore conduct from criminal prosecution,” Sotomayor wrote. Even Justice Amy Coney Barrett expressed some anxiety, writing in her concurrence that some exercises of the “Take Care” provision do not fall into “core constitutional powers.”

On their face, the other, non-core official acts might seem less threatening — the Court only assigned them “presumptive immunity,” a threshold that can, in theory, be overcome by prosecutors during a trial. These official acts, per the ruling, are also presidential powers that have more overlap with other branches, in a realm where Congress (again, in theory) could legislate some guardrails. 

But this aspect of the ruling, too, runs up against a grim reality. A strong legislature as a check on the Executive Branch is an idea this Supreme Court loves: see the right-wing majority’s jurisprudence on federal agencies, in which the justices strike down regulations as overly broad, the kind of things only Congress can legislate into existence.  They profess to be shifting power from the big bad bureaucrats to the people’s house. In reality, they’re shifting power to themselves, as Congress — through a combination of divided governance, a Republican lack of interest in legislating and structural impediments like the filibuster — struggles to even pass basic funding bills each year. As Congress remains silent, the judiciary is left to interpret and reinterpret old laws, shaping American life.

In this case, the all-powerful executive created by Monday’s ruling is very unlikely to be meaningfully hemmed in by Congress, despite what the justices may claim. Because the Republican political world has been working towards strengthening the presidency for decades and is much more comfortable trampling the norms that once accompanied the office, implementing checks would likely require a Democratic trifecta in the numbers sufficient to overcome the filibuster (or with senators willing to get rid of it). 

“The Court is assuming that the only appropriate check is Congress without understanding how compromised Congress has become,” Rebecca Roiphe, a professor at New York Law School, told TPM. “Congress is a casualty of originalism.” 

The Supreme Court also left what constitutes an “official act” bafflingly undefined in its ruling — leaving it to the lower courts to fill in the details and malicious presidents to see what they can get away with.

‘The Agenda of Trumpism‘

All of this adds up to the creation of a new form of executive, a super president who, depending on his level of creativity, could stretch this newly invented immunity to cover huge amounts of criminal behavior. 

“This case at a categorical new level puts the President far and above other branches,” Emerson said. “We’ll see power struggles over elections — to the extent that we continue to have real elections — get that much greater because the President holds the keys to the kingdom. We could see diminished congressional power and diminished responsibility of members of Congress who increasingly rely on the President’s unilateral authority to get things done.” 

Such a threat takes on a flesh and blood dimension in the form of Donald Trump, whose conduct prompted the indictment that led to the decision, who cheered the decision and who is sure to test its bounds if given the chance. The wide latitude the Court has sketched out already seems to rubber-stamp some of the plans he’s telegraphed for a hypothetical second term. 

A particularly grim set of scenarios leaps from Trump’s attempt, in 2020 and early 2021, to bully and leverage his Justice Department into pressuring states to swap in his fake electors. That egregious conduct gave rise to the only charges in Special Prosecutor Jack Smith’s indictment that the majority declared covered by absolute immunity. 

Along with being a massive threat to the DOJ’s prosecutorial independence, that finding also seems to clear the way for a future President Trump to make many of his lingering legal problems vanish, and then go further. 

“If he wins the election, they have precleared him to drop two of the cases against him,” Super said, referring to the federal prosecutions centered on the Jan. 6 insurrection and the classified documents he hid at Mar-a-Lago.

Trump’s plans to purge federal employees seem similarly unlikely to raise an eyebrow at the Supreme Court under the new regime. 

“Once you say that the President gets absolute immunity for a certain subset of crimes, it’s hard not to say that the President has untrammeled authority within the bounds of the law to do whatever he likes in the Executive Branch,” Emerson said. 

Within a day of the decision, Trump was already using the immunity ruling as a cudgel in what had been the most successful legal case against him. He secured a delay in sentencing in the New York hush money case, his lawyers arguing that the prosecutors used evidence related to official acts to win their conviction — evidence which is now barred by the Supreme Court from being used by prosecutors, even when proving a case based on the unprotected, unofficial acts. 

Sentencing has now been pushed from July to September.

“It seems like a relatively straightforward application of the ruling,” Michael Dorf, a professor of constitutional law at Cornell Law School, told TPM, calling the Court’s new evidentiary rule “ridiculous.” 

Every expert TPM spoke to for this story also brought up another element of this Supreme Court term: the unprecedented attack on federal agencies from a Court already historically hostile to them. 

Those cases crescendoed with Loper Bright Enterprises v. Raimondo, in which the Court overturned a 40-year-old precedent that had been a key pillar of agency power. 

That leaching of power from the administrative state contrasts starkly with the massive accrual of power that the Court just gifted the presidency.

“It’s the culmination of Steve Bannon’s vision — it neuters what he would call the deep state and what I would call effective regulation in favor of the imperial presidency,” Dorf said. “It concentrates and elevates the power of the political portion of the White House while hamstringing orderly regulation of the world from agencies.

“It’s exactly the agenda of Trumpism.”