Justice Sotomayor was right for the wrong reasons

IN HER DISSENT in Trump v United States, Justice Sonia Sotomayor correctly observes that historical evidence from the early republic “cuts decisively against” the sweeping new doctrine of executive immunity adopted by the Supreme Court majority. But is this, as she goes on to claim, because the decision converts the president into “a king above the law”?

The force of her charge rests on a traditional understanding of the American founding, ritualistically repeated in classrooms across the country—and endorsed in a brief filed with the court by prominent historians, on which Justice Sotomayor relies. According to this view, the patriots in 1776 rebelled against royal power and, as a result, uniformly approached the design of their new executive in the 1780s “with a deep-seated, anti-monarchical sentiment”. It follows that the last thing the framers of the constitution could have intended was to create a president “with the powers and privileges of a king”.