Justice Sonia Sotomayor must take a good look at precedent and the law before ruling on major cases. She did not in Trump v US.
On July 1, 2024, the US Supreme Court ruled well in a critical case regarding legal immunity for the US president. It properly reaffirmed (did not establish, but reasserted) that a US president, while conducting his official business, has complete immunity from criminal and civil actions. America’s version of sovereign immunity, if you will, which it was called for ages.
I found the dissent by Justice Sonia Sotomayor very interesting. She exclaimed the president could order the military to murder an adversary without consequence. For one of the eight associate justices on our highest court, that shows some radical (Ill be generous here) ignorance of US law.
In her dissent from Monday’s Supreme Court ruling that a president enjoys immunity for “official acts,” Justice Sonia Sotomayor noted that the 6-3 ruling makes possible the hypothetical scenario of a U.S. president evading prosecution after ordering SEAL Team Six to assassinate a political opponent or even organizing a military coup. Sotomayor, who concluded her opinion by writing, “With fear for our democracy, I dissent,..”
I would hope an associate justice would understand that the officers who command SEAL team 6 are smart enough to understand an illegal order. She might want to remember Ron DeSantis. The current Florida governor and former GOP presidential candidate served overseas as a Navy Judge Advocate who advised SEAL team commanders on the legality of certain targets. And Justice Sotomayor should remember the oath they take is the same as the one she takes.
I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion;..
Ms. Sotomayor, you apparently need reminding that a president may order a military unit to assassinate a political rival. But it would be refused by the commander of the unit. If he followed the order, he would be charged with Murder under Article 118 of the Uniform Code of Military Justice. Specifically the article says, “Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being…”
I don’t see how the murder of a politician running against a current (and likely future) president would be a justified execution.
Now, if Biden (or any other Democratic politician) were organizing an active rebellion against the US government on American soil, would that justify using the Pentagon to kill him? The answer is likely no. Something like that would be more likely the preview of the Department of Justice or Homeland Security to take them into custody.
Interesting Ms. Sotomayor says Trump generates in her, “fear for our democracy…” The two most recent Democratic presidents have ignored specific statues on immigration, refused to submit treaties (the Iran Nuke Deal, the Paris Climate Accord) to the Senate for ratification, appointed an officer without authorization and approval by the Senate (Special Counsel Jack Smith), and attempted to spend hundreds of billions of dollars (student loan repayment) without appropriation from the Congress. Justice Sotomayor, last time I read the Constitution, it says the president “shall take Care that the Laws be faith-fully executed” (Artl 2, Sect 3). Perhaps you should reread the document before judging on the cases before the court.
I do wonder what Ms. Sotomayor thinks of Clinton v Jones (1997)? In 1991, then Governor Bill Clinton allegedly called in Ms. Paula Jones, who was working at a state conference. Per Ms. Jones, he made a lude proposal and she refused. Ms. Jones filed a sexual harassment lawsuit in 1994, which President Clinton countersued, stating he could not be sued while in office. The US District Court affirmed Clinton, delaying the case until after Clinton was out of office, but allowing fact finding to continue. Jones appealed and the 8th Circuit Court of Appeals reversed, allowing the suit to proceed immediately. Clinton appealed to the Supreme Court, and in a 9-0 ruling, affirmed the Court of Appeals ruling.
Writing for the whole court, Justice John Paul Stevens (one of the more liberal justices of the court’s history) said, “that the president, like other government officials, is immune from civil lawsuits based on their official acts.” Justice Stevens reviewed how the court “established this rule about 15 years earlier in Nixon v. Fitzgerald (1974), recognizing presidents must have protection from personal liability for their official actions. Otherwise, a president could not perform his duties without fearing lawsuits around every corner.” Justice Stevens continues, “However, the Constitution and precedent provide no such protection for unofficial conduct.”
So what can we take from this? In now three Supreme Court rulings (Nixon v Fitzgerald (1974), Clinton v Jones (1997), and Trump v US (2024), the court has ruled the Constitution does not shield a president from his private actions, particularly when those actions occurred before his time in the Oval Office. However, he is shielded from his official actions in office. Implied by the Constitution, established by Nixon, reaffirmed by Clinton and Trump.
Prior to being nominated to replace David Souter on the Supreme Court, then Judge Sotomayor famously said as a “wise Latina” she could make better decisions on the court. She also said a “court of appeal can make government policy” (that insight that makes me cringe more than the mildly racist Latina quote), which a court cannot do. The judicial branch is, by design, shielded from the voter and public at large, making it “least among equals.”
But she is only in fear of a President Trump using the military or bureaucracy against Americans. In four years in office, I don’t recall Trump ordering the military to attack Americans on our soil, nor did he order the IRS to harass political enemies, or separate families at the border, or forceable move people from their homes because of their race. Perhaps Ms. Sotomayor should study the history of her party, as well as precedent, before making a judgement on significant legal issues.
Michael A. Thiac is a retired Army intelligence officer, with over 23 years experience, including serving in the Republic of Korea, Japan, and the Middle East. He is also a retired police patrol sergeant, with over 22 years’ service, and over ten year’s experience in field training of newly assigned officers. He has been published at The American Thinker, PoliceOne.com, and on his personal blog, A Cop’s Watch.
Opinions expressed are his alone and do not necessarily reflect the opinions of current or former employers.
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