SCOTUS sells Absolute Immunity as the Cure for an Imaginary Malignancy

February 2026

The supreme court's current conservative majority, including chief justice Roberts, exhibit a rare commonality: their affinity for the same mystical and insular communities. All six conservatives have been groomed by the same two religions - the Federalist Society and the Catholic Church.

So, to allay doubts about the court's impartiality and secularity, Chief Justice Roberts wants us to believe that the fault line between liberals and conservatives merely reflects academic differences in judicial philosophy.

The evidence suggests otherwise. Ian Millhiser's exhaustive review of the judicial record paints a more cynical picture: The six conservative justices constitute a cabal of ideological partisans in league with Donald Trump.

The glaring example is the 2024 decision in Trump v. U.S., where the Roberts cabal awarded Trump (and succeeding Presidents) with absolute immunity from criminal liability in the execution of official duties. Within the scope of conducting official business, America's seditionist-in-chief is now above the law.

Trump already enjoys immunity from civil suits, thanks to the ruling in Nixon v. Fitzgerald (1982). The Roberts cabal merely expanded that protection to include criminal prosecution.

Of course, the expansion has been thoroughly discredited by the dissenting opinions of justices Sotomayor, Kagin, and Jackson. In this post, I want to dwell on this one point:

The majority opinion weaves a theory for which there is no factual support, historical or otherwise. It's a figment of Federalist Society ideology. Specifically, the justices contrived an imaginary problem for which absolute immunity is the ideal solution.

A crude summary of their theory is that without the protection of immunity, presidents won't have the balls to make critical decisions in a resolute and timely manner; they will waffle, commiserate, and hesitate.

Here's a fuller account of the imaginary problem that justifies immunity.

According to the conservative majority's abstract interpretation, the constitution requires an "energetic" unitary executive, i.e., a single agent who can execute the office courageously. Unfortunately, this ideal is undermined by the potential for retributive justice after leaving office. The fear of criminal liability can stall or compromise a President's decisions, especially on consequential matters that invite opposition. Timidity prevails when presidents hedge their bets. For example, a president might cancel a drone attack on an Al Qaeda compound, because doing so would murder an American citizen.

The dissenting justices attacked the Roberts opinion for ignoring the historical documentation of widespread opposition to monarchical privilege. Had the founding fathers favored Absolute Immunity, they would have mentioned it in Article II of the Constitution. Instead, Article II says that the President "shall take Care that the Laws be faithfully executed." While Roberts salutes Alexander Hamilton for endorsing a unitary executive, he conveniently ignores Hamilton's caveat: accountability is what prevents a unitary president from being a King. Therefore, a president's misdeeds are "liable to prosecution and punishment in the ordinary course of law" (Hamilton, Federalist No. 69).

Furthermore, there is no empirical evidence, historical or otherwise, for the presumption that the absence of immunity compromises Presidents' ability to take decisive action. To the contrary, far from being intimidated by the possibility of prosecution, recent Presidents have actually invited scrutiny by flouting the law. For example...

• Bill Clinton's record as a sexual predator is reminiscent of Harvey Weinstein. He committed perjury in the civil trial involving Paula Jones. Also, his authorization of the bombing campaign in Serbia evoked charges of war crimes by Amnesty International.

• George Bush approved waterboarding as an enhanced interrogation technique, and then went onto authorize a secret program of domestic surveillance.

• Obama knowingly murdered a US citizen in a drone attack against Al Qaeda terrorists.

• Biden supplied the weaponry for Israel's genocide in Gaza, despite Federal statutes that outlaw war crimes and formal warnings from State Department officials. In addition, not only did he hoard classified documents at his personal residence, but he shared them with his ghost writer.

• Finally, the main beneficiary of the Court's ruling - his Royal Heinous Donald J. Trump - absconded to Mari Lago with classified documents and refused to return them.

However, the foregoing points were irrelevant to the conservatives' argument, because their ruling was not about a pre-existing problem. Rather, the majority opinion was designed to solve an imaginary future problem.

Their explanation for why recent presidents have been indifferent to the possibility of prosecution is that there's NO historical precedent to remind them of that possibility. Donald Trump is the very first ex-president to be prosecuted for crimes committed while in office. And if his prosecution were to proceed, it would become the dazzling precedent that haunts future Presidents, and thereby undermines their executive independence and decisiveness.

Thus, the noble excuse for saving an arch-criminal from jail-time is that it will protect the "energetic unitary executive" from future degeneration.

Where's the Accountability Now?

The dissenting justices pressed the counterargument that criminal immunity would provide the President with a license to violate the law and abuse executive power. What, for example, would restrain the President from, say, disobeying a court order or ordering the prosecution of political enemies?

The Majority's answer was that the remaining guardrails are sufficient. Without a shred of empirical evidence, they asserted that retributive justice is unnecessary because other deterrents will prevail, such as impeachment by Congress, vigorous Congressional oversight, and reputational damage from media scrutiny.

President Trump's trail of misconduct since inauguration suggests otherwise. The reasons are:

(1) The impeachment a President is a political decision. So as a practical matter, it can only occur when the opposition party controls the House of Representatives. Since 1860, the opposition controlled the House in 40% of Congressional sessions. However, to convict a president the opposing party needs to control the Senate as well. This occurred just 24% of the time. In other words, most presidential terms are immune from impeachment. Only three presidents in history have been impeached, and none convicted.

(2) A similar argument can be made for Presidents' susceptibility to Congressional oversight. It is vigilant and aggressive only when the opposition is in charge.

(3) The argument for media scrutiny assumes that the abuse of power is commonly recognized, broadly unpopular, and its revelation will rally public animosity and shame the President. But, polling suggests that coverage of Trump's abuses, per se, have significantly lowered his approval ratings only among Independents. Otherwise, media coverage appears to have reinforced political polarization. The outrage against his behavior remains concentrated in the Democratic echo chamber, while Republicans and MAGA-minions reflexively accept his transgressions. Apparently, only Independents are susceptible to being swayed by media scrutiny. That's not a huge deterrent.