‘The Justices Dropped This Bomb’: Three Legal Experts on a Shocking Supreme Court Term
Kate Shaw, a contributing Opinion writer, hosted a written online conversation with Will Baude, a law professor at the University of Chicago, and Stephen Vladeck, a law professor at Georgetown and the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” to reflect on the dramatic end to the Supreme Court term.
Kate Shaw: This Supreme Court term ended on a shocking note with Trump v. United States. I didn’t expect Trump to win this case, and I definitely didn’t expect the court to issue such a sweeping opinion, broadly insulating ex-presidents from criminal liability and fundamentally reshaping the relationship of the presidency to the law.
We’ve now had a week to digest the opinion — what are you still puzzling over, and what most stands out to you?
William Baude: I don’t think the outcome was a surprise, given the arguments and the breadth of the D.C. Circuit opinion, which rejected any claim of executive immunity rather than focusing on the specifics of the Trump case. But I remain confused about what the difference is between Justice Amy Coney Barrett’s quite sensible opinion and the much more sprawling majority opinion — Justice Barrett claims to agree with most of the majority opinion, but I don’t know if we should take that at face value!
Stephen Vladeck: I continue to be baffled by both the really problematic discussion of which evidence can and can’t be used even for prosecutable conduct and more generally the remarkable endorsement not just of broad executive power but of “preclusive” executive power (those not subject to any limitations by other branches, a variation of which was known as the “commander in chief override” during the George W. Bush administration).
Shaw: Steve, I’m wondering what remains of United States v. Nixon. Almost exactly 50 years ago, the court unanimously ruled against the president in that case. How do you think Nixon’s arguments against producing the Oval Office tapes would have fared under the logic of this opinion?
