SCOTUS Opinions on Trump Immunity, Corner Post, and Netchoice: Read Them For Yourself

With the Supreme Court term finally ending, three more opinions came down from the Supreme Court involving Corner Post, Netchoice, and the much-awaited Trump immunity.

All blurbs from SCOTUSBlog:

In Corner Post, Inc. v. Board of Governors, the court holds that a claim under the Administrative Procedure Act to challenge an agency action first comes into being when the plaintiff is injured by final agency action.

The court vacates both decisions on Texas and Florida’s social media laws, in Moody v. NetChoice, LLC and NetChoice v. Paxton, explaining that neither of the lower courts properly considered the nature of the First Amendment challenges.

In Trump v. United States, the court holds that a former president has absolute immunity for his core constitutional powers.

Some of the key writing, first Chief Justice Roberts:

As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine “in the
first instance” whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.

This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies. In a case like this one, focusing on “transient results” may have profound consequences for the separation of powers and for the future of our Republic. Youngstown, 343 U. S., at 634 (Jackson, J., concurring). Our perspective must be more farsighted, for “[t]he peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969).

Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation
that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of
“alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.

It is these enduring principles that guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

From Justice Jackson in dissent:

The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right

From Justice Thomas, concurring:

Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that
structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.

From Justice Barrett, concurring in part:

I appreciate the Court’s concern that allowing into evidence official acts for which the President cannot be held criminally liable may prejudice the jury. Ante, at 31. But the rules of evidence are equipped to handle that concern on a case-by-case basis. Most importantly, a trial court can exclude evidence of the President’s protected conduct “if its probative value is substantially outweighed by a danger of. . . unfair prejudice” or “confusing the issues.” Fed. Rule Evid. 403; see also Rule 105 (requiring the court to “restrict the evidence to its proper scope and instruct the jury accordingly”). The balance is more likely to favor admitting evidence of an official act in a bribery prosecution, for instance, than one in which the protected conduct has little connection to the charged offense. And if the evidence comes in, the trial court can instruct the jury to consider it only for lawful purposes. See Richardson v. Marsh, 481 U. S. 200, 206–207 (1987). I see no need to depart from that familiar and time-tested procedure here.

From Justice Sotomayor in dissent:

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines . . . all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in a republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no. 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.