"With fear for our democracy, I dissent."

My title is how Justice Sonia Sotomayor concluded her dissenting opinion to the Supreme Court case granting presidents criminal immunity for "official acts." Here's the context:

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.

You might not have seen this coming if you'd watched the confirmation hearings for the six justices who ruled in favor of presidential immunity. At least three of them made statements that no one - not even the president - is above the law.

Chief Justice John Roberts at his confirmation hearing: “No one is above the law under our system and that includes the president. The president is fully bound by the law.” (Sept. 2005) pic.twitter.com/DzxIXOJotW

— Republican Voters Against Trump (@AccountableGOP) July 1, 2024

Supreme Court Justice Samuel Alito in January 2006:

“There is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law.” pic.twitter.com/Zpx2CQhgFn

— Republican Voters Against Trump (@AccountableGOP) July 1, 2024

Supreme Court Justice Brett Kavanaugh in September 2018:

“Under the Constitution, the president is not above the law. No one is above the law…The president remains subject to the law.” pic.twitter.com/wx6VcHr4VV

— Republican Voters Against Trump (@AccountableGOP) July 1, 2024

Why the change all of the sudden? Josh Marshall nailed it. 

What's most notable to me in this decision is how much of it seems to come from a realization that if your team's going to have a President who's a big time criminal he's going to need some big time immunity.

— Josh Marshall (@joshtpm) July 1, 2024

Because the GOP has been overtaken by a criminal, it is now time to give their leader immunity. 

I believe that Sotomayor's words in response will go down as one of the most consequential moments in our history as a country. But in her dissent, Justice Ketanji Brown Jackson took things a bit further and identified the root of the problem.

Ultimately, the majority’s model simply sets the criminal law to one side when it comes to crimes allegedly committed by the President. Before accountability can be sought or rendered, the Judiciary serves as a newfound special gatekeeper, charged not merely with interpreting the law but with policing whether it applies to the President at all...

In short, America has traditionally relied on the law to keep its Presidents in line. Starting today, however, Americans must rely on the courts to determine when (if at all) the criminal laws that their representatives have enacted to promote individual and collective security will operate as speedbumps to Presidential action or reaction...The potential for great harm to American institutions and Americans themselves is obvious...because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.

In other words, the six extremists on the court gave themselves the power to decide when/if a president can be held accountable for criminal acts. Over time this isn't so much about making the president a king as it is about taking power away from the legislative and executive branches and giving it to the courts. It continues what the court ruled just three days prior.

Loper Bright Enterprises v. Raimondo fully consolidates the Court’s dominance over federal agencies within the executive branch of government. It is a radical reordering of the US separation of powers, giving the one unelected branch of government all of its own power, plus much of the power that Congress has vested in the executive branch.

What we see unfolding is that the one unelected branch of government with lifetime appointments has decided that they have the power to overturn rulings by previous courts (Roe vs Wade), decide when a president can be held accountable, and discard expert analysis by federal employees - directing policy based on their own beliefs.

None of this is an accident. Two men in particular have been focused on elevating the power of the court over the other (more democratic) branches of government: Leonard Leo and Mitch McConnell. Recognizing that the GOP was moving into minority status when it comes to elections, they have been working on this for years. Their dream of neutering the legislative and executive branches of government to set up a country ruled by a majority of extremist judges is unfolding right before our eyes. Sotomayor issued the correct warning when she concluded her dissent by expressing fear for our democracy.