The Supreme Court’s decision in Trump v. United States is solid but risky legal reasoning that reflects the failure of constitutional order (Kathleen Tipler, July 9th, 2024, LSE Blog)

As a legal scholar who has been thinking about this question of presidential immunity for a number of years, my take is different. I think the decision is a reasonable opinion. I do disagree with it, but it is not because this decision puts presidents above the law – I think the Roberts opinion left the door open for prosecution of Trump, including ones that the dissenting opinions declare impossible – nor is it because this decision is based on specious legal reasoning. I disagree because of the larger approach it takes to the constitutional order. […]

While the constitutional question facing the Supreme Court in Trump v. United States was the extent of presidential immunity, the case itself involves a former president who attempted to overturn the election that voted him out of office. If the authors of the Constitution anticipated such a situation, they thought Congress would handle it – the Constitution explicitly gives Congress the power of removing the president for “high crimes and misdemeanors.” And that’s what should have happened. But instead, because of the various ways in which our country has changed over the past 250 years, Congress failed to do so.

So, this failure by Congress, this failure of the constitutional order, puts the Supreme Court in a bind. Essentially, the Court had two options here, as they often do, given our ancient Constitution: they could stay in their lane, and limit judicial review of presidential actions (broader presidential immunity, careful and slow judicial process), or they can try to make a broken system work, step in where Congress failed, and have the judiciary review presidential actions (limited or no presidential immunity, expedited judicial process).