On Tuesday, Oct. 8, the Legal Studies department hosted an event on “Understanding the Supreme Court’s opinion on presidential immunity in Trump v. United States.” In that decision, the Supreme Court ruled that presidents have “absolute immunity” for using their core constitutional powers, such as commanding the military, hiring cabinet secretaries and issuing pardons. They have “presumptive immunity” for official actions that are not core constitutional powers, although they have no immunity for unofficial acts like campaigning. The result of this decision was to delay Trump’s trial beyond the 2024 election while the district court determines which actions are official or unofficial.
The six to three decision had two concurrences and two dissents. Justice Clarence Thomas wrote a concurring opinion casting doubt upon the legitimacy of Special Counsel Jack Smith’s power to even bring the indictment against Trump due to the way his office was funded. Thomas’ opinion was barely discussed at Tuesday’s event because it was largely unrelated to the immunity issue. Justice Amy Coney Barrett issued a concurring opinion that agreed that presidents have immunity, but that the immunity is far narrower than what the majority described.
Justice Sonia Sotomayor issued a dissent joined by all of the court’s liberal justices. She outlined evidence that the president does not have immunity from prosecution, such as Gerald Ford’s pardon of Richard Nixon for his actions regarding the Watergate scandal, the fact that the constitution explicitly provides some immunity for members of Congress but not the president and Alexander Hamilton’s words in Federalist No. 69 that “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” Justice Ketanji Brown Jackson, who also joined Sotomayor’s dissent, issued her own dissent outlining the potential dangers of a president with immunity from prosecution.
At Tuesday’s event, while attendees had popcorn, cheez-its and candy, Professors Dan Breen and Rosalind Kabrhel used the Trump decision to explain to the audience how to write a case brief. They touched on key aspects of briefs such as the difference between the holding and the judgment in a court decision, the difference between facts of a case and allegations, how to find the issue before the court and the importance of concurrences and dissents. They showed the audience the different portions of the opinion that would need to be in a case brief in different color highlights. They also recommended certain resources to help students understand court decisions such as ScotusBlog, law review articles and select news articles.
The professors were also extremely critical of the decision itself. Kabrhel said that the decision was a “bad decision.” Breen was even harsher, saying “If [Chief Justice John] Roberts had turned that in as a paper for one of my classes, I would have failed it.” He then added that Roberts had misrepresented several of the precedents he cited, including Marbury v. Madison and Youngstown Sheet & Tube Company v. Sawyer. Breen described the concurrence by Barrett as “more reasonable.” Kabrhel pointed out five pages of the opinion that she said was “Roberts playing defense,” where he responded to some of the criticism in the dissenting opinions. When an audience member said that they did not see this ruling coming, Breen said that “nobody saw this coming.” At the end of the event, attendees grabbed leftover snacks on their way out.
