‘Powers of a king’: Melissa Murray on the repercussions of the Supreme Court's immunity decision

Joining us now, former law clerk to Judge Sonia Sotomayor and MSNBC legal analyst Melissa Murray and Slate senior editor and MSNBC law and politics analyst Dahlia Lithwick. So beyond the actual content of the majority opinion and the dissents, there is a prevailing tone. I I think of anger between the justices and you. Tell me if I'm wrong here, Melissa, because you know them much better than I do. But just the the lack of the of the word respectfully in the dissents and some language in the majority opinion makes me feel like there is a lot of unsaid tension within the Supreme Court today. Well, I think that's an understatement, Katie. I think this term has been a fractious one for the court. I think they've tried to issue some decisions where there is unanimity or consensus, but the fact of many different concurrencies and dissents suggests that there's still a lot of tensions about how decisions get made and what the rationales for those decisions will be. I will note that the Chief Justice and his majority seem to be calling the three female dissenters hyperbolic fear mongering harpies at one point. He doesn't call them harpies specifically, but he does say that they're fear mongering. But I think the dissent is right that the long term implications of this decision be far reaching and will be incredibly consequential. And it's worth thinking about this case and this decision in the context of the decisions that we received last week concerning the administrative state. In those decisions over ruling Chevron, the court essentially said that the executive, through administrative agencies, cannot act like a king, going beyond the scope of the authority that Congress vested in it. But here today, the court seems to have no trouble with vesting the president with the executive with the powers of a king as well. And this is something that the dissents sharply pointed out. There was one moment in the majority opinion toward the end where Chief Justice Roberts writes about the minority and the dissent. And, and I want to read it to you, Dahlia, because as I was reading through this opinion, it stuck out to me as as sounding condescending. But you tell me if I'm wrong about that. Our dissenting colleagues exude an impressive infallibility, he writes. While their confidence may be inspiring, the court adheres to time tested practices instead. Dalia Yeah, I think it's it's not entirely inaccurate to say that it's unfortunate how gender that turns out to be. And don't forget, if you count Amy Coney Barrett, who peels off from the majority as to one specific piece of this case, you literally have all four women justices in many places on one side of this case and the men on the other. And so then when you get this sort of like their their little Missy, you're overreacted acting. It feels very, very familiar to a lot of us. But I think I also want to just lash it back to justice Alito last week in the Mytha Prista. I'm sorry, in the Amtala abortion case also suggesting that the dissenters female were emotional and that this was an emotional issue. So it does feel a little bit like 1970s vibe here where women get positions of power only to be told that this is about abstractions and this is about, you know, dispassionate intellectual analysis and whatever it is you're doing, it's not that because you're just too emotional. Melissa, with this case, is this the ruling that this this court will be known for? Is it the Dobbs ruling? Is it a set of rulings that say a certain thing? Katie, I don't think we can put any single ruling as the defining one for this court. This is a conservative super majority that since obtaining that conservative super majority, each term has overruled the significant precedent of the courts that preceded it. So I think the overall take on this court is this is a court that is unleashed unfettered by any restraints that had previously lashed any other courts. It is a court proceeding entirely on its own steam without any regard for what comes next or what has preceded it. It is hubris squared. As Justice Sotomayor said last week in another decision, it's giving great deference Dalia, to executive authority, you know, in in this case, as as Melissa noted, it was whittling away executive agency's authority last week and for for a substantial time before and in the Chevron case. And then here again, I think if you turn it this into a fight about theoretical powers of a theoretical president who is theoretically at risk of an overzealous deep state prosecution, you can kind of sort of get to where the Chief Justice is going. But given that that is not in fact the problem at hand and that I think we believed until recently that at minimum, the Chief Justice didn't think that this was like a deep state weaponizing the Justice Department to go after Donald Trump. It's an astounding, astounding place to plant the flag to say we're going to have this theoretical ruling about chilling a theoretical president who wants to act boldly when absolutely nothing suggests that that is the problem at hand. The problem at hand, as we read in the dissents, is that we have a president who has committed criminal conduct and now claims that he's above the they're using what they believe is implied in the constitution to allow a president to to violate that constitution on the subject. Melissa, if you can just quickly of Chief Justice Roberts, I think Dalia is pointing out something significant, which was that people had started to assume that he was not a moderate, but leaning more in the moderate direction in in the current makeup of the court with the current position that he has did today blow a hole in that. Well, I've never been of the view that Chief Justice Roberts is a moderate. I've always said that Chief Justice Roberts is a movement conservative who has been fed the mother's milk of the conservative legal movement. The only thing that has restrained him is the fact that he's served as the Chief Justice of the United States. And so he and he alone is the chief institutional steward of the federal judiciary. And that has served as something of a restraint. But in his bones, and we have seen it time and time again in voting rights cases, this is someone who very much is a true believer in the conservative legal movement. I think we saw it here today. This is the unitary executive theory on steroids. This everything must go through the executive branch, and when it does, the executive cannot be held to account unless there is some clearly private act. But most acts here may fall into that clearly constitutional bucket or the bucket where it is presumptively appropriate and therefore presumptively immunized. So this is a sweeping grant of authority to the executive branch. This is a court that has arrogated power to itself and is now arrogating power to this president.