‘The Dred Scott of Our Time’

The majority opinion in Trump v. United States, the most sweeping judicial reconstruction of the American presidency in history, secures the monumental historic disgrace of the John Roberts Court. Since last winter, the Supreme Court has intervened directly in the 2024 presidential campaign by effectively shielding Donald Trump from being tried on major federal charges before the November election. No previous Supreme Court has protected a political candidate in this way. Far more ominously, in March the Court in Trump v. Anderson openly nullified the section of the Fourteenth Amendment that bars insurrectionists from holding federal or state office, discarding basic lessons about threats to American democracy dating back to the Civil War. Now, in Trump v. United States, handed down on the last day of its 2023–2024 term, the Court has seized the opportunity to invent, with no textual basis, “at least presumptive” and quite possibly “absolute” presidential criminal immunity for official acts, a decision so broad that it essentially places the presidency above the law.

By throwing Trump’s federal indictments into doubt, Trump v. United States all but completes the former president’s immunization from legal accountability for the events of January 6, 2021, at least until after the election. But that is only the decision’s narrowest ambit. Its vague distinction between official and unofficial presidential acts gives any president carte blanche to commit crimes up to and including assassination and treason with virtual impunity from criminal prosecution, as long as he can justify those crimes as part of his “official” duties. In effect it invests the presidency with quasi-monarchial powers, repudiating the foundational principle of the rule of law. Trump and his supporters have pledged to wield unfettered executive power and unleash a scorched-earth assault on the “deep state,” which is to say the existing constitutional and institutional order, if he is reelected. In the current crisis, that threat’s most powerful ally is the Supreme Court of the United States.

The Roberts Court has descended to a level of shame reserved until now for the Roger B. Taney Court that decided the case of Dred Scott v. Sandford in 1857. Just as that court’s majority sought to suppress the antislavery Republican Party and to help permanently secure the Slave Power’s control over American law and government, so the Roberts Court majority has sought, thus far successfully, to protect Trump from prosecution and to secure radical changes in American law friendly to MAGA authoritarianism. The Supreme Court has once again willfully placed itself at the center of a presidential election on which the future of American democracy turns.

The Supreme Court is supposed to be independent of politics. Its reputation rests on the premise that its judgments reflect neither fear nor favor regarding the executive or Congress. Its legitimacy depends on its perceived fealty to the Constitution, unsullied by partisanship or other political motives. “Nothing is more to be deprecated,” Chief Justice John Marshall wrote in 1811, “than the transfer of party politics to the seat of Justice.”¹

To be sure, the Court has never been able to escape politics, especially in turbulent times when social and political issues have become constitutional issues. President Franklin D. Roosevelt’s effort in 1937 to pack the Court to overcome its hostility to his New Deal reforms famously backfired in the midterm elections the following year, when the Republicans picked up eight seats in the Senate and nearly doubled their numbers in the House of Representatives. After the Court’s ruling in Brown v. Board of Education in 1954, ending school segregation and galvanizing the civil rights movement, a campaign against the Court driven by the John Birch Society and embraced by southern segregationists erected billboard ads across the South and in several northern states as well, demanding the impeachment of Chief Justice Earl Warren. 

As far back as the stormy early days of the republic, Chief Justice Marshall’s landmark ruling in Marbury v. Madison(1803) arose from vigorous attempts by President Thomas Jefferson and his administration to undo the efforts of opposition Federalists to corrupt the federal judiciary. By shrewdly navigating between the competing interests, Marshall’s opinion in Marbury established the bedrock principle of judicial independence from politics. 

Until this Court’s tenure, Dred Scott had been the most notorious example of the Court’s violation of that principle. The case was political dynamite. By deciding the fate of Dred and Harriet Scott, slaves claiming their freedom based on their residence in Illinois and the free territory of Wisconsin, the Court intervened in the mounting crisis over Congress’s ability to halt slavery’s spread in the territories—the main issue behind the rise of the antislavery Republican Party. President James Buchanan, a Democrat and a northerner of southern sympathies, interfered outrageously in the Court’s deliberations prior to his inauguration, secretly pressuring justices to issue a comprehensive ruling that barred black people, enslaved and free, from national citizenship, which is precisely what those justices ruled. (The full extent of Buchanan’s intervention was hidden for decades.) 

Chief Justice Taney was the original originalist. He based his majority opinion, he asserted, on the Constitution’s precise meaning at its framing and ratification. In ruling against Scott, Taney not only proscribed black citizenship but also denied Congress any authority over slavery, effectively (and ironically) nullifying Article IV, section 3, clause 2 of the Constitution, which gave it “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Black people had never been considered citizens, he pronounced, and the Constitution explicitly rendered property in humans secure from federal government action. Both claims—as critics, including two dissenting justices, pointed out—were manifestly erroneous. Apart from degrading the status of black Americans, the decision in effect proclaimed the Republicans’ antislavery program unconstitutional, making Dred Scott the most direct intervention by the Court in partisan politics leading up to a presidential election in American history—at least until now. Lincoln famously refuted Taney’s claims about the founders and the Constitution in his Cooper Union address in early 1860. 

Northern outrage at the ruling helped elect Lincoln, but Taney’s decision remained in place until the ratification of the Thirteenth and Fourteenth Amendments abolished slavery and declared that all persons born in the United States were citizens of the United States. It informed the proslavery legal order promulgated by the constitution of the Confederate States of America in 1861, which codified Taney’s specious originalism as its cornerstone by explicitly enshrining slavery as an unassailable institution. 

Until Trump v. United States, no one decision by the Roberts Court carried significance comparable in magnitude to that of Dred Scott. Numerous other shamefully activist rulings—the Dobbs decision on abortion, the Bruen decision on gun regulation, dozens of others—have been just as egregious in their flawed reasoning and transparent political purposes. But Trump v. United States is distinct as a deliberate attack on the core institutions and principles of the republic, preparing the way for a MAGA authoritarian regime much as Dred Scott tried to do for the slavocracy.

Still, the similarities between what occurred in the late 1850s and the events that led to Trump v. United States are as glaring as they are tragic. Dressed in the bogus doctrine of originalism, members of the Roberts Court’s conservative majority have long deployed fake history to justify predetermined outcomes, much as in Dred Scott Taney relied in part, as Lincoln said, “on assumed historical facts which were not really true.”² The Court majority did so again this term, most obviously in the unsigned decision that overturned the Colorado Supreme Court’s disqualification of Trump from its state’s ballot under the Fourteenth Amendment. The conservative justices have not declared the Democratic Party’s program unconstitutional, but their purposeful delays over Trump’s immunity claims have had profound effects on both political parties. 

In some respects, arguably, the politicization of the Roberts Court has even surpassed that of the Taney Court. President Buchanan prudently applied his extraordinary pressure on the Court in secret. Today Speaker of the House Mike Johnson, a co-conspirator in Trump’s effort to overturn the 2020 election, thinks nothing of publicly bidding the Court—“many [of whom] I know personally,” he told Fox and Friends in May—to intervene on Trump’s behalf over his hush-money conviction in a New York state court, assuring the Fox hosts and the MAGA faithful that “this will be overturned, guys, there’s no question about it, it’s just going to take time do it.” 

Neither Taney nor any of his allies on the Court, as far as we know, had members of their households who publicly denounced antislavery forces, as Ginni Thomas, the wife of Justice Clarence Thomas, has denounced the “fascist left.” Apart, perhaps, from Justice John Archibald Campbell, who resigned in 1861, moved to Mobile, then joined the Confederate government in Richmond, no members of the Taney Court permitted emblems of insurrection to be flown at their private residences after the firing on Fort Sumter, as Justice Samuel Alito has repeatedly done after the assault on the Capitol on January 6. That both Thomas and Alito have refused to recuse themselves from virtually all cases connected to January 6 further clouds the Court’s reputation for impartiality. So does the stream of charges that individual justices, Justice Thomas most egregiously, have received lavish gifts or benefits, or both, from wealthy right-wing and conservative individuals, including some with proceedings pending before the Court—charges that, with the assistance of Chief Justice Roberts, those accused have sought to quash summarily with dubious claims about the separation of powers.

Even more grievous, though, than the individual displays of partisanship and dubious ethics has been the majority’s tampering with the Constitution itself. It’s one thing to misinterpret the Constitution in order to reach a predetermined conclusion by contriving fake history, as Taney did and his “originalist” successors have; it’s quite another to use these methods to alter fundamental structures of constitutional government. Yet in the Colorado disqualification case, the Court brazenly gutted Section 3 of the Fourteenth Amendment, inventing the idea that the power to disqualify insurrectionists from office lay entirely with Congress. 

According to the conservative majority’s preposterous account, which is contradicted by all historical evidence, not to mention by common sense, the Fourteenth Amendment’s framers intended that it would not come into effect without specific enabling legislation by Congress. By that logic, none of the so-called Reconstruction Amendments—including the Thirteenth Amendment, which abolished slavery—came into effect until Congress passed enabling legislation, thereby granting it the authority unilaterally to nullify a constitutional amendment. (In the absence to date of enabling legislation, perhaps slavery can be restored, should either house of Congress desire it.) By that logic, moreover, an adjudicated insurrectionist is constitutionally entitled to hold any state or federal office, including the presidency, as long as his allies control either the House or the Senate.

Trump v. United States originated in a routine effort by Trump’s lawyers to throw up any motion, no matter how outlandish, to delay Special Council Jack Smith’s prosecution of Trump in the District Court for the District of Columbia on the four-count indictment handed down in August 2023 over his participation in the events of January 6. With any luck, their absurd claim—that presidents and former presidents enjoy blanket immunity from criminal prosecution unless first impeached and removed from office—would stave off the proceedings until after November 5. 

The presiding district court judge, Tanya Chutkan, denied the motion in December 2023, all but calling its arguments ridiculous, and affirmed the the trial date she had set earlier, March 4 of this year. A three-judge panel of the Court of Appeals of the District of Columbia unanimously upheld Judge Chutkan in February in similar terms, at which point Trump’s lawyers asked the Supreme Court to put the Appeals Court panel’s decision on hold to allow them time to petition for the entire Appeals Court to hear the case. But what Trump’s lawyers failed to achieve at the district court and appellate level—postponing the trial long enough to protect their client from prosecution before the election—the Supreme Court did for them. 

First, in December 2023, Smith asked the Court to prevent further delay by taking up the case directly. Leapfrogging the appeals court would hardly have prejudiced the case: it was clear that the case would be appealed further to the Supreme Court no matter what the appellate judges decided. The Court refused. Two months later, however, in February 2024, after the appeals court ruled against Trump, the Court dragged its feet as long as possible before deciding, on the last day in February, that it would take up the case after all. It then scheduled oral arguments for the very last slot on the very last day on the schedule for the term, April 25. Even before the case came before them, the Court had made it highly unlikely that Trump’s trial for January 6 would proceed in a timely manner.

The oral arguments then stunned some legal observers into the realization that the Court majority would not stop there. The alleged precedent for presidential criminal immunity, Nixon v. Fitzgerald (1982), granted past and current presidents absolute immunity from civil litigation over actions within “the outer perimeter” of official acts, on the grounds that without such protection, the executive’s authority would be severely hamstrung. No member of the Court had argued, Justice Byron White noted in his dissent, joined by three of his colleagues, “that the President is immune from criminal prosecution in the courts…. Nor would such a claim be credible.” 

The Trump lawyers, however, argued that such a claim was perfectly credible. To prevent hampering the executive, they contended, a president must be immune from criminal as well as civil prosecution for official actions, quite possibly up to and including ordering the assassination of his political opponents on some official grounds. That immunity would end, Trump’s attorney proposed, only if a president was first impeached and removed from office. 

As the district and appeals courts pointed out, this completely novel argument was both ludicrous and dangerous. Making criminal prosecution dependent on impeachment and removal—political actions with no criminal implications or penalties—would mangle the Constitution’s impeachment clause and utterly politicize the criminal law with respect to the president. Blanket immunity from criminal prosecution as well as from civil suits would invest the presidency with monarchical powers, mimicking the absolutist notion prevalent in Europe, and which the British came to share, that the king could do no wrong—precisely what the framers of the Constitution were intent on preventing. It seemed to many impossible that the Court, no matter how much it might delay matters to aid Trump, would take the immunity argument seriously. 

As I foresaw in these pages, however, the oral arguments on April 25 proved they were wrong. Far from being dismissive, the conservative justices appeared entirely persuaded that the presidency, including former presidents, deserved some kind of criminal immunity. Their reasoning was alarming. Justice Alito raised the specter of a loser of a close presidential election being “criminally prosecuted by a bitter political opponent,” which would then initiate “a cycle that destabilizes the functioning of our country as a democracy”—repeating Trump’s groundless accusations about what the Biden administration has done to him and where it may lead unless former presidents are granted immunity. To hear a Supreme Court justice parrot Trump’s paranoid scenario was shocking, not just for its partisanship but for what it revealed about Alito’s lack of faith in and regard for the existing judicial system and the rule of law. 

No less remarkable were Justice Brett Kavanaugh’s remarks concerning the original intentions of the framers regarding the presidency, sympathetically framing the Trump lawyer’s arguments while trying to clarify them. When they declared that “the president’s not a king,” Kavanaugh asked the Trump attorney, did that mean that “the president is subject to prosecution for all personal acts, just like every other American?” That is, if a president speeds in his car, cheats on his income tax, or murders his spouse, he should be treated no differently than any other American under the law (assuming the speeding, cheating, or murder cannot be justified as official acts). Otherwise, though, is not the president immune? Kavanaugh did not draw the obvious conclusion: By that logic the framers intended for the president to be very much a king when he is in office.

Over strenuous objections from the three liberal justices, the majority spent most of its time conjecturing about where the line might be between private and official acts, parsing how much criminality they ought to permit an American president. Some of the conservatives resorted to flagrant distortions of the evidence or endorsed and augmented the Trump attorneys’ distortions. When one of them attempted to manipulate the meaning of memos from the Justice Department’s Office of Legal Counsel to back their case, Justice Elena Kagan tried to shut him down, asking, “Does it strike you as odd that your understanding of immunity goes way beyond what OLC has ever claimed for a former president?” Kavanaugh, however, stoutly defended the twisting of one OLC memo to mean that the statutes Trump allegedly violated don’t apply to the president because they do not explicitly state that they apply to the president. Trump’s lawyer and Kavanaugh both omitted the OLC’s provision that the exclusion pertains only if applying the statute in question “would conflict with the president’s constitutional duties”—which the federal charges against Trump, including conspiracy to defraud the United States and obstruct an official proceeding, in no way do.

After the oral arguments in Trump v. United States. and just prior to announcing its ruling, the Court handed down another pro-Trump decision in Fischer v. US, with a baffling majority opinion written by Chief Justice Roberts. So egregious was that opinion’s reasoning concerning the interpretation of a federal obstruction statute that the Trump-appointed justice Amy Coney Barrett, joined by Justices Sonya Sotomayor and Elena Kagan, accused her colleagues of resorting to “textual backflips” to reach the conclusion they desired. Evidently, she said, the majority “simply cannot believe that Congress meant what it said.”

The case was straightforward. On January 6, 2021, Joseph W. Fischer attended the notorious Stop the Steal rally, marched to the Capitol, physically attacked at least one Capitol Hill police officer, encouraged others to breach the building (and did so himself), and said that he wanted to go “to war” and drag “the democratic Congress to the gallows.” He was charged with assaulting a police officer, disorderly conduct, and obstructing an official proceeding, a federal felony. By the time the Supreme Court heard Fischer’s case, more than three hundred individuals, including Trump, had been charged under the obstruction statute, which had resulted in 150 convictions and guilty pleas. 

Fischer’s lawyers came up with a far-fetched defense, claiming that the obstruction statute did not cover the offense their client was accused of committing. That statute, 18 United States Code 1512 (c), is part of the Sarbanes-Oxley Act, which was passed in 2002 after the Enron scandal:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other 
object, or attempts to do so, with the intent to impair the object’s 
integrity or availability for use in an official proceeding; or
 (2) otherwise obstructs, influences, or impedes any official proceeding, or 
attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.

As Justice Barrett wrote, the provision’s meaning could not be plainer: anyone who attempts to obstruct, influence, or impede any official proceeding, quite apart from tampering with or concealing documents, is liable to a fine, imprisonment, or both. The provision in 1512 (c) 2 is familiarly known as a “catchall,” meant to cover all behavior that leads to the undesirable outcome, in this case corruptly obstructing any official proceeding, not just those concerned with financial improprieties—something Fischer plainly did. The case against him, Justice Barrett wrote, was “open and shut.”

Fischer’s lawyers, though, claimed that the word “otherwise” in the second part of the provision does not mean what, as Barrett showed, dictionaries define it as: anything other than the thing just mentioned. Instead, they contended that the “otherwise” confined the second part of the provision to variations of the specific behavior outlawed in the first part, impairing or concealing evidence. The Court bought this nonsensical line of argument, thereby overruling what fourteen of fifteen district court judges along with the D.C. Circuit Court of Appeals had previously decided. To do so required that the justices forego an exact reading of the provision under consideration—the “textualist” method conservatives normally assert is sacrosanct—in favor of a series of fanciful hypotheticals, suggesting, for example, that according to the prosecution’s definition of “otherwise,” a lobbyist who persuaded a congressman to vote a particular way could be fined, jailed, or both for influencing an official proceeding. As a result, virtually all the January 6 convictions obtained under the statue may be voided, and all the indictments still to be adjudicated may be dropped—including, not incidentally, two of the January 6 indictments against Trump.

As a preview of the court’s disposition, the Fischer decision, combined with the oral arguments in Trump v. United States, seemed to signal that the Court would find grounds for some sort of presidential criminal immunity in the Trump case and remand it back to the District Court, thereby, at the very least, preventing Smith from bringing Trump to trial before the election. At one level this is what the Court majority has done. But far from splitting the difference between absolute immunity and no immunity at all, as some early press reports have suggested, the Court has gone the full distance and then some, giving Trump, as Justice Sonya Sotomayor observes in her withering dissent, “all the immunity he asked for and more.” It has also created a precedent that, although no more settled law today than Dred Scott was in 1857, could well be, if left to stand, the vehicle for the destruction of American democracy by an unaccountable and corrupt chief executive.

The decision relies on two basic maneuvers, both of which Justice Sotomayor identifies in her dissent. The first is its sonorous declaration that “with respect to the President’s exercise of his core constitutional powers…immunity must be absolute.” It is difficult to understand why the Court even mentioned this uncontested point, let alone presented it as a holding, except as a way of smuggling in the notion of absolute immunity, which it could then extend to other presidential actions. No one has disputed that the president enjoys immunity over a handful of specific responsibilities that the Constitution grants exclusively to the office, such as vetoing legislation or appointing members of the cabinet. At the Trump oral arguments, the government’s lawyer, Michael Dreeben, spelled out clearly that these exceptional duties are the only ones immune from criminal prosecution. The indictment’s allegations concerning Trump’s actions around January 6 had nothing to do with the Court’s holding on absolute immunity for these core powers. By attempting to apply the holding to those actions, as Sotomayor puts it, the majority “expands the concept of core powers beyond any recognizable grounds.”

The Court then decided that all of a president’s official actions, as opposed to his personal actions, are close enough to being core powers that they should at least be presumed immune to criminal prosecution and might well be absolutely immune. The claim has no basis at all in any of the texts over which the conservative majority usually obsesses. As Sotomayor’s dissent discusses at length, however, there is abundant evidence both from the framers and from subsequent constitutional authorities that indicates entirely the opposite. 

The Constitution’s impeachment clause, for example, clearly allows a former president to be prosecuted for crimes that might have led to his impeachment and removal, including treason and bribery. The Court correctly rejected Trump’s wild idea that a president may be subject to criminal prosecution only after impeachment and removal, but it then ignored the clause’s text. Authorities since the Constitutional Convention in 1787 have directly rejected the idea of presidential immunity. In Federalist Paper 69, Alexander Hamilton stated that former presidents would be “liable to prosecution and punishment in the ordinary course of the law.” Justice Joseph Story, in his influential Commentaries on the Constitution of the United States (1833), wrote that when federal officials commit a crime while in office, “the common tribunals of justice” should be able to take up the matter “for the purpose of inflicting, the common punishment applicable to unofficial offenders.” Without such trials, he added, “the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.” 

Modern history, too, confounds the notion that presidents are immune from criminal prosecution for official acts. The case of Richard Nixon, who accepted a pardon from Gerald Ford to avoid criminal prosecution for what would easily be construed by the Roberts Court as official acts, is the outstanding example in living memory. At Trump’s second impeachment trial, his lawyers insisted that failing to remove their client from office for his involvement in January 6 would not render him “in any way above the law” and that a former president “is like any other citizen and can be tried in a court of law.”

Indeed, at least some of the conservative justices are on record to the same effect. During his confirmation hearings, when questioned about presidential immunity, Justice Kavanaugh stated, “I do not think anyone thinks of immunity. And why not? No one is above the law. And that is just such a foundational principle of the Constitution and equal justice under law.” He repeatedly quoted the passage from Hamilton’s Federalist Paper 69 cited above.

What does a textualist majority do when the texts are against it? In Trump v. United States, the majority took refuge in Fitzgerald v. Nixon, the case that first guided the Trump lawyers. Like the Trump lawyers, the Court bypassed the Burger Court majority’s explicit rationale for granting immunity in civil cases, which is that there is far less public interest at stake in “actions for civil damages” than “in criminal prosecutions.” It ignored a point both Chief Justice Warren Burger in the majority and the four dissenting justices emphasized: that, as Justice White’s dissent put it, a “contention that the President is immune from criminal prosecution in the courts” would not “be credible.” Instead, it asserted that exposure to criminal prosecution, with its potentially weightier outcomes, would do more to intrude on “the authority and functions of the Executive Branch” than exposure to civil litigation. This would, in turn, have a chilling effect, preventing a president from taking the “bold and unhesitating action” his job requires.

Here the Court majority took a position similar to the one Justice Alito took during oral arguments. It is a position that reflects little faith in (or simply disregards) the protections afforded criminal defendants as opposed to civil action defendants, beginning with the requirement that the prosecution gather sufficient evidence to convince a grand jury to indict. It also weighs the necessity of broad executive authority as more important than the public interest; indeed, it equates the public interest with the need to immunize the president from criminal prosecution, so that the president can do whatever he thinks he needs to do. This is the essence of authoritarianism.

Of course, as the majority opinion insists in a footnote, the Constitution offers a president “no protection from prosecution of acts taken in a private capacity.” Here the Court returns to a point broached by Justice Kavanaugh in oral arguments—that the Constitution is vindicated as long as the president is liable for private crimes like any other citizen. But this merely underscores what a quasi-monarchical presidency the majority has in mind: of all Americans, only one, the president, cannot be prosecuted for crimes undertaken in his official capacity.

The ruling is every bit as radical, as detrimental to the rule of law, and as authoritarian as Justice Sotomayor states in her dissent. With this decision, she writes,

The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.… The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. 

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

To belabor the cynicism and intellectual shoddiness of the ruling in Trump v. United States would be simply to say it is typical of the Roberts Court. But it is crucial to stress this decision’s stakes. The Roberts Court has not just protected Donald Trump so that he might advance his own agenda or appoint young replacements for Alito and Thomas and perhaps one of the liberal justices, consolidating a hard-right majority for a generation at least. It has not just ignored the central principle of stare decisis to overturn long-settled law, as it did in the Dobbs decision. It has radically changed the very structure of American government, paving the way for MAGA authoritarianism just as the Taney Court tried to pave the way for enshrining the Slave Power.

All of which makes Trump v. United States the Dred Scott of our time.