Samuel Alito, Jan 9–13, 2006, judiciary.senate.gov pg 56
No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.
John Roberts, Sept 12–15, 2005, judiciary.senate.gov pg 152
Senator, I believe that no one is above the law under our system, and that includes the President. The President is fully bound by the law, the Constitution and statutes.
Neil Gorsuch, Mar 20–23, 2017, congress.gov
Senator, no man is above the law. [...] every law that this body passes [Congress] I take seriously. I respect this body, and nobody is above the law in this country, and that includes the President of the United States.
Brett Kavanaugh, pg 119, Sept 2018, govinfo.gov (See also: congress.gov )
Thank you, Mr. Chairman. To begin with, you are correct. No one is above the law in our constitutional system. [...] Hamilton makes clear all the ways that the executive branch, as designed by the Framers of the Constitution, was different from the monarchy. Under our system of Government, the executive branch is subject to the law, subject to the court system [...]. It is an important part of the constitutional structure.
Amy Coney Barrett, (07:38), Oct 13, 2020, www.rev.com
I would say that justice Scalia was obviously a mentor, and as I said when I accepted the President’s nomination, that his philosophy is mine too. He was a very eloquent defender of originalism, And that was also true of textualism, which is the way that I approach statutes and their interpretation. And similarly to what I just said about originalism, for textualism, the judge approaches the text as it was written with the meaning it had at the time and doesn’t infuse our own meaning into it. [...]
[ What is the difference between originalism vs. textualism vs. living constitutionalism? ]
Clarence Thomas, (01:21:27), Sept 10, 1991, www.c-span.org
Senator, I think that the Supreme Court has made clear that the issue of marital privacy is protected, that the State cannot infringe on that without a compelling interest, and the Supreme Court, of course, in the case of Roe v. Wade has found an interest in the woman's right to — as a fundamental interest a woman's right to terminate a pregnancy. I do not think that at this time that I could maintain my impartiality as a member of the judiciary and comment on that specific case.
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Fast-forward to July 1, 2024:
SUPREME COURT OF THE UNITED STATES
TRUMP v. UNITED STATES
Syllabus pgs. 1-4, 8, supremecourt.gov [Emphasis added, in all quotes]
Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
[...]
(ii) Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession. The danger is greater than what led the Court to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the “bold and unhesitating action” required of an independent Executive. [...] But there is also a compelling “public interest in fair and effective law enforcement.”
Taking into account these competing considerations, the Court concludes that the separation of powers principles explicated in the Court’s precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. [...] At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”
[...]
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 under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office.
ROBERTS , C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BARRETT, J., joined except as to Part III–C. THOMAS, J., filed a concurring opinion.
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I did a more in-depth analysis of these disparate statements (between then and now), including my heated commentary, from the historical context of Richard Nixon’s “official acts,” here. But commenters there wanted a more cut-to-the-chase version of these conflicting statements of the conservative Justices during their Confirmation Hearings, versus their recent controversial Presidential Immunity Decision. That is what I tried to provide with this current post — in other words the TL;DR version. I leave the “contrast and compare” analysis and commentary, up to you, the readers.
I will simply say that I think there was a lot of “legal tap-dancing” necessary to get from their original “what did the Founders say” Confirmation assurances, to their “writing a rule for the Ages” today. I seriously doubt, their ruling would have been so extreme and/or forgiving, if the Defendant had been a President with a “-D” after his or her name. I fear, as do many, that they have unleashed a dreaded historical truism/experiment, especially for future Presidents of, shall we say, questionable moral character:
“Power tends to corrupt and absolute power corrupts absolutely.” (1887)
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Or as dissenter Justice Jackson succinctly put it: (pg 21-22) supremecourt.gov
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.
In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.
Justice Sotomayor, in her dissent, details how the current Decision runs counter to The Framers’ views and implementation of Constitutional immunity provisions, elsewhere — BUT explicitly NOT for the President. It is too is worth a read, when you have the time.
The conservative activist Justices definitely are in need of some serious “checks and balances,” being applied in their direction. Before they themselves become accountable to no one.
Thanks for reading.
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Buffalo Springfield — For What It's Worth
“Something’s happening here. What it is, ain’t exactly clear ...”
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