A long-game strategy to fix our broken Supreme Court

There has been plenty of criticism of the Supreme Court’s decision granting former President Trump nearly total immunity for crimes connected to attempted subversion of the 2020 presidential election, but most of it stops short of the logical conclusion. 

The opinion in Trump v. United States has been called “utterly circular, [tossing] aside the conservatives’ purported adherence to the plain text and meaning of the Constitution.” It has been described as a “decision of surpassing recklessness in dangerous times,” and most alarmingly, as removing “the final obstacle to presidential dictatorship.”

For all of that, however, most critics, including those who branded the decision “illegitimate” have been unwilling to question the legitimacy of the court itself. 

By protecting Trump from the consequences of his crimes, and in other recent decisions, the Republican justices have discredited themselves as little more than political operatives in robes. They have steadily advanced Republican objectives by squelching individual rights, inventing new doctrines, abandoning precedents, and now, rewriting the Constitution.

There is no end in sight to the six justices’ partisanship, and the court’s alignment with the Republican Party seems bound to continue until there is a change in its composition. And that means court expansion.

Like every lawyer, I have been educated to respect the Supreme Court’s institutional role and see its stability as essential to our democracy. It is only reluctantly that I have come to recognize that court expansion — adding as many as four new seats — is the only way out of the right-wing stranglehold.

Not everyone is ready to concede that the court is dominated by partisan hacks. Justice Amy Coney Barrett posited that the hackery charge could be refuted if we would only “read the opinions.” Does the decision “read like something that was purely results-driven and designed to impose the policy preferences of the majority,” she asked, or is it an honest effort “to determine what the Constitution and precedent requires?”

That’s fair enough. But reading just a few passages of Trump v. United States reveals that it was indeed results-driven, lacking the basic attributes of a solid constitutional decision.

Chief Justice John Roberts’s majority opinion leads off with the assertion that former presidents have “absolute immunity” for the exercise of “core constitutional powers,” a principle that appears nowhere in the text of the Constitution. The framers knew how to write immunity into the Constitution, as they provided it for senators and representatives in the “Speech and Debate” clause of Article I, Section 6.

Roberts shrugs off the absence of a comparable presidential immunity provision by noting that “there is no ‘separation of powers clause’ either.” That is hardly an effective retort, given that the powers established by the Constitution are, in fact, detailed in three separate sections. 

Article 1 vests “all legislative powers” in Congress, Article 2 likewise vests the “executive power” in the president, and Article 3 vests the “judicial power” in the federal courts.

Roberts’s analogy is nonsense. There are actually three clauses in the Constitution that unambiguously provide for the separation of powers — they couldn’t be any more separated — while there is no similar textual support for absolute presidential immunity.

The majority’s argument is further undercut by the Constitution’s impeachment provisions, which clearly contemplate the possible prosecution of former presidents, even for the criminal exercise of a “core constitutional power.”

Under Article 2, Section 4, a president may be impeached and removed from office for various offenses, including “bribery,” which could obviously cover accepting money for the exercise of a core power, such as granting a pardon. 

Article 1, Section 3, further provides that after removal, the former president “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Roberts again waves off the plain text of the constitution, insisting that the impeachment clause “does not indicate whether a former president may, consistent with the separation of powers, be prosecuted for his official conduct in particular (italics original).”

But what else would a presidential bribe be for, other than the conduct of an official act? Indeed, that is the definition of bribery in both the U.S. Code and English common law.

The closest Roberts’s opinion comes to a textual basis is its reliance on Alexander Hamilton’s Federalist No. 70, which emphasizes the importance of a “vigorous” and “energetic” executive. Those virtues would be compromised, according to Roberts, if the president’s readiness to take “bold and unhesitating action” were to be “chilled” by the prospect of post-presidency prosecution.

What Roberts unaccountably omits, however, is Hamilton’s list of the four “ingredients [that] constitute energy in the executive.” They are unity, duration, adequate support and competent powers, with no mention of immunity.

As the majority justices were aware, Hamilton himself did not believe that immunity was necessary to ensure energy in the executive, having written that a former president could be “liable to prosecution and punishment in the ordinary course of law.”

The majority opinion consistently fails Barrett’s test for partisan hackery, relying more on judicial sleight of hand than on text or precedent. Far from a determination of what the Constitution requires, it repeatedly ignores plain language and elides relevant history while contriving a theory of immunity wholly absent from the Constitution itself.

Supreme Court expansion does not have a natural constituency among lawyers and the public. I was not an early backer, even when my daughter became president of Take Back the Court, a nonprofit organization advocating Supreme Court expansion. But what other remedy is there for a court that has essentially legalized presidential bribery?

So-called “court packing” does have a bad ring. But the current Supreme Court has already been packed by Sen. Mitch McConnell (R-Ky.), who first blockaded President Barack Obama’s nomination of Merrick Garland for nearly a year, and then pushed through Amy Coney Barrett’s confirmation while votes were already being cast in the 2020 election. Without those two ill-gotten seats, there would have been no majority for partisan decisions like Trump v. United States.

The current prospect for Supreme Court expansion is admittedly dim, given the reality of congressional control, but that shouldn’t prevent Democrats from keeping it on their agenda. Republicans excelled at the long game, finally succeeding in a decades-long campaign to take full control of the Supreme Court.

There may be only one way to reclaim the court for democracy, and it will require the same patient strategy. Starting now.

Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.