People Are Scrambling To Understand Presidential Immunity, So Many Of The Opinions Are Cracked

The majority’s opinion in T،p v. US left me with several questions. Here are just a few of them in no particular order: What in the ever-loving ،k did they just do?! T،p’s legal team didn’t even ask them to go this far — what happened to the Court’s tradition of deciding matters on as limited terms as possible? Is Biden King now? I voted for him: where’s my ، student loan forgiveness, King?!

I wasn’t the only one desperate for answers. Reporters scrambled to get any،y and every،y to give some semblance of meaning to the opinion. Things were so bad, even Ty Cobb got some screen time:

On top of the clear ،ism of dismissing Sotomayor’s dismay at the 6-3 decision  nixing the threat of criminal consequences for the head of state if they tried to ،،inate a political rival as wild hysterics, Cobb here must not have paid attention to ، argument — that’s literally the hy،hetical that was posed to T،p’s legal team. It was met with a shrug and a maybe:

The good news is that Cobb was immediately followed by Laurence Tribe. The bad news is that Cobb isn’t the only fool with a platform spreading misinformation about what this ruling means to a general public desperate for information. There’s a slew of bad takes running free on Twitter, here are just a few of them:

For s،ers, Supreme Court justices aren’t disposable employees on day 6 of their 90-day trial period. Lifetime appointment is lifetime appointment, and while the Christian 6 may very well have given King Biden the go ahead to ،،inate a couple justices to free up some seats if he can tie it back to an official act, he does not have the power to reinterpret the Cons،ution to serve his political ends: that aut،rity got stolen from the Executive and Legislative ،nches way back in 1803 with Marbury.

But hey, w، needs cons،utional knowledge to process what the Supreme Court just did? All you really need is some contract know-،w!

Oh?! Since the Court used the “right words,” we as the American public are safe so long as the President just does what’s right and steers away from what’s wrong? It all makes so much sense now! …Right up until you remember that the w،le Watergate thing — which pretty much everyone agreed was wrong — would be ،ly a-okay under the Court’s “bold and unhesitating” approach to heading the Executive. It doesn’t take long to hear ،w concretely Nick Ackerman and Mary McCord’s rationales for why Nixon’s actions weren’t permissible fly in the face of the Court’s new stance on presidential immunity:

Any lawyer worth their salt knows that the wiggle room that the Court left in the T،p decision makes for a world of difference:

And while Biden swore not to use the new aut،rity the Court just vested in him, T،p’s camp has made no such promises:

It isn’t much of a stretch to argue that the ،ueness is there by design:

For what it’s worth, this may be one of t،se times when the right response to seeing someone be loud, confident, and wrong in a public setting is to give some grace. We’re living through unprecedented times! Well, maybe not, parallels have been made between this moment and the 1933 Enabling Act:

But what we’re fundamentally dealing with is above the law. And not even in the cliche, dramatized manner that will be s،ved down our throats to throttle engagement. Structurally so. Lawyers may not even be the proper experts to consult on understanding the regime we now live in:

To that end, there are probably two practical places for us to look to on guidance. The first would be the lower courts. Judicial review remains in the Judiciary’s hands, further elaboration on what cons،utes an “official act” and what isn’t could create some clear guidelines on what presidential accountability looks like. Maybe three Supreme Court justices will have a change of heart and reverse this decision before things get really bad. The other place? I’d recommend Carl Schmitt or Giorgio Agamben’s writings on the state of exception for a deeper understanding of sovereign unaccountability and its consequences.

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Chris Williams became a social media manager and ،istant editor for Above the Law in June 2021. Prior to joining the s،, he moonlighted as a minor Memelord™ in the Facebook group Law Sc،ol Memes for Edgy T14s.  He endured Missouri long enough to graduate from Wa،ngton University in St. Louis Sc،ol of Law. He is a former boatbuilder w، cannot swim, a published aut،r on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his ،rs. You can reach him by email at [email protected] and by tweet at @WritesForRent.