By David R. Dow

Photo credit: Anthony Quintano

For the second time in a generation, the Supreme Court has intervened in a political dispute it could have avoided. For the second time in a generation, the justices resolved that political dispute by dividing along ideological lines. For the second time in a generation, the Court squandered the only thing it has as the basis of its authority: the respect of the people, and the public’s perception that it is not merely another political institution.

This time, however, in the case of Trump v. United States, unlike the Court’s previous ill-advised foray into the political realm in Bush v. Gore, the squandering of the Court’s authority and the demise of its reputation appears to be unsalvageable. 

Some observers might be tempted to praise the Court for not embracing either of two competing categorical rules: The justices did not say the President has absolute immunity for everything he does while in office, and they also did not say that he lacks immunity for everything he does in office. They purported to do something in between, leaving it to the lower courts to determine on which side of that line the President’s actions fell. But of course, a close reading of the opinion reveals that it will be difficult, perhaps impossible, for a prosecutor to prove that the President’s actions were unofficial. More ominously, although it is often true that a split-the-baby approach represents a sort of prudential compromise, unlike Solomon, whence the split-the-baby metaphor originates, the Court’s compromise in this instance, if it can be so called, does not exemplify wisdom at all.

Everybody, including the justices, knows that compromise means delay. Everybody, including the justices, knows that delay is a victory for Trump. That is why, shortly after the decision was announced, Trump was gleeful. 

But everybody also knows that two of the six justices who voted in Trump’s favor exhibited such ostentatious behavior as Trump supporters that legal ethicists called on them to recuse themselves and not participate in any cases pertaining to the January 6 attack at the US Capitol.  Everybody knows that three of the justices who voted in Trump’s favor owe their seats on the Court to Trump himself. So, when the people whose confidence in the Court’s judgment is the only thing that gives the Court its authority see the result of this decision, they see a little league baseball game where the umpire calling balls and strikes is the pitcher’s father. July 1, 2024, is the date the Court firmly entrenched its reputation as just another bunch of politicians.

This outcome was easily avoidable. In the opinions announced today, Chief Justice Roberts embraced one point of view; Justice Sotomayor embraced another. But the Court had a superior alternative to both those options: It could have done nothing. Part of what the Supreme Court does, of course, is to decide cases, but another part of what it does is to decide which cases to decide. In making that latter decision, the Court has its best opportunity to avoid appearing to be purely political. It seizes that opportunity by eschewing, wherever possible, political cases. The most important thing the Court can do is preserve its judgment, and often, that objective requires that it not decide. 

In 1936, Justice Brandeis famously articulated the idea of constitutional avoidance, a concept akin to judicial minimalism. This doctrine has some complexity, but at its core is the notion that if the Court can reasonably avoid deciding a constitutional issue, it should. Avoidance is a tool the Court has for preserving its capital.

During oral arguments in the case in April, Justice Gorsuch opined that the Court was “writing a rule for the ages.” Justice Kavanaugh similarly suggested prosecutions of former presidents is “not going to stop.” Both these observations are reflected in Chief Justice Roberts’s majority opinion. Yet it is not so much that these concerns are wrong as it is that they ignore history. Since the United States was founded, there have been twenty-two peaceful, uneventful transfers of power from one president to the next. There has been one January 6. One.

It is, of course, possible that politics in the US has been permanently altered, and that, going forward, the nation will exist in a state of perennial partisan warfare where nothing gets done except for the evening of scores as one administration gives way to the next. But it is also possible that the present moment is aberrational; and if the first 230 years of US history are a better predictor of the future than are the most recent eight years, the likelihood is that once Trump exits the political stage, we will return to a more mundane type of partisan bickering—one where a minimal degree of legislation actually happens and one where few people are shouting to lock the other guy up. 

If this sanguine view is mistaken—if Trumpism has permanently broken American democracy—the Court would have been able to address issues of presidential immunity in the future. Had it waited to do so, its intervention into the political sphere would have been viewed as critical, not gratuitous. But if Trump is, so to speak, a one-off, there was no need for a constitutional rule from the Court, at least not yet. It is a well-worn cliché in the legal profession that hard cases make bad law; Trump v. US illustrates a corollary to that dictum: unicorns also make bad law.

There is one final aspect of the Court’s ruination of its own reputation: its imperious disdain for the American people. Had the Court not made a prosecution of Trump practically impossible, Trump himself would have had the opportunity to make his case. At his trial, he would have been able to tell the jury of his peers that, on January 6, he was acting in an official capacity; he would have been able to implore the jury that it would be dangerous for the nation to deem a President guilty of a crime for doing his job. Perhaps twelve jurors—or even one—would have embraced that view. Twelve jurors would have heard the evidence and decided. The Court’s decision divests the jury of that power; its decision is a declaration that it is wiser than those twelve.

There is simply no getting around the conclusion that Trump v. US is a victory for Trump handed to him by a combination of justices he placed on the Court and two others who unabashedly support him. If yesterday, there was any remaining chance for the Court to be seen as above politics, that chance has been obliterated. The six justices who looked past the unique facts of January 6 and arrogantly insisted they are issuing a ruling for the ages are right to stress that the Supreme Court’s function in our democracy is to decide big cases rather than individual grievances. But their ruling for Mr. Trump represents the apotheosis of an individualized ruling.

About the Author 

David R. Dow is the Cullen Professor at the University of Houston Law Center. He is the author of Executed on a Technicality: Lethal Injustice on America’s Death Row.