As we are all waiting for the landmark ruling by the US Supreme Court this week, on the issue of absolute immunity and limited immunity for US presidents, Joanne Z. Tan asked Tani Cantil-Sakauye, former Chief Justice of California Supreme Court for 11 years, and current President of the Public Policy Institute of California, some hypothetical as well as philosophical questions related to the issues. The following is an excerpt from an interview of Tani, conducted by Joanne Z. Tan on June 24, 2024.
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Joanne Tan 0:02
Now, next question regarding the principles of federalism, state power and our republic. This may be a loaded question, but I think we all want to hear from your perspective.
The United States was founded on the principle of a republic consisting of independent states where federal laws and state laws are independent and separate. This question is not meant to be political. I know that your political party affiliation is independent, and I respect that.
I’d like to use the current conviction of former President Donald Trump by New York state court to learn about federal court limitations and potential overreach, Assuming this scenario – and this is related to federalism and checks and balances – if the US Supreme Court rules that a sitting president has absolute immunity, which sounds like the power of a king to me, and further rules that the New York conviction must be retried, vacated, or even overruled on the ground that the falsification of business records under New York law is related to the federal election; even though the illegal act related to federal election deprived citizens their right to be informed, which is a federal crime, will the federal absolute immunity override New York state law under the Supremacy Clause, since Trump wrote the check to reimburse the harsh money after inauguration, presumably under absolute immunity protection, if, (this is loaded question, so let me read the questions), if the US Supreme Court indeed rules as such, what are the ramifications, in your opinion, for our foundational principles of independent state and federal jurisdiction? Would that be an overreach by the federal judicial branch?
And the second question, what harm would absolute immunity do to the checks and balances of our government?
And third, same scenario, same questions, but with limited immunity instead of absolute immunity. I’m sorry, but I can give you one piece at a time.
So the first is, what, what is rami(fication), IF it’s ruled as such (which I doubt, but who knows, okay), what are the ramifications for the foundational principle of independent state and federal jurisdiction? Would that be an overreach by the federal judicial branch?
Tani Cantil-Sakauye 2:44
Well, let me say this, what’s today? Today’s the 24th
Joanne Tan 2:48
Monday
Tani Cantil-Sakauye 2:49
Now, we only have to wait six more days, and the United States Supreme Court is going to answer that question for us, right? Their term ends, June 30, I believe. So they’re going to have to, for every case argued this term, they’re going to have to rule. So they’re going to rule if they do find absolute immunity from all criminal actions by a sitting president, I can’t imagine like you, but it will have ramifications and consequences, and they won’t be… I want to say that I don’t know how they… it would be how they write it. Those are, they’re very, all nine are very learned scholars and experienced, and in addition, as you know, they all hire top notch law student interns who helped them with the research, and then the lawyers who argued this case on both sides were teams of lawyers with amicus briefs, and every legal stone was unturned, and even a parade of horribles was probably listed for the court when in the briefing. And the ramifications will be long lasting and long affecting, and I don’t think it will be just to… independent, the independence of state and federal judiciaries.
The truth is, as you know, when the United States Supreme Court rules on a matter that is potentially take… that is a constitutional right arising from the US Constitution and the Bill of Rights and the other… what 17 amendments that occurred after the first 10, then they are the last and final word. They are the highest court of this state on a constitutional issue. And therefore they speak last. And they are, whether you think they’re right or wrong, they are and have full authority in that area. So I think that however they rule will, I know, it will be the law of the land, and they’re aware of that, and they’re aware of these ramifications and these considerations. That’s why the opinion will be really interesting to read.
If they find absolute immunity, as you know, it could be something far less than absolute immunity, and we’ll have to read how much less.
But I believe this, the United States Supreme Court, whether you like them or not, agree with them or not, they have been, in their opinions, very frank and very transparent. They write out what the issue is, what the law is, and why and how they concluded the way they did. That gives us all an opportunity to read it, to disagree or to agree with some pieces. But one thing is certain, they do their work, maybe apart from the allegations against Justice Thomas and sitting on cases where his friends had an interest. For the most part, the United States Supreme Court has historically been transparent. They, and they write out their decisions. You can attend the hearings, and there are nine people who serve as a check and balance on each other if one of the justices says something that the other disagrees with, you know it, they write it. They tell you why.
So I want to say that I think the process, even though how much we disagree with it, how much people seem to have strong opinions about Supreme Court decisions, the process is unlike any process of governance in the United States or elsewhere. Courts are transparent. We write what we think and allow everybody to take a shot at it, and typically, we’re working off of old laws that we’re trying to apply to new and weird, everyday, contemporary situations.
So I don’t know that they will do damage to the independence between the state and federal judiciary, because there’s a lot of interconnection. They are not independent. It’s true, we have a state constitution and there is a federal constitution, but as you pointed out, the federal constitution on issues of common, common issues is supreme. It does rule. We do have a central government. That was the big fight after we won the war against Britain is we are going to have a central government.
The other piece about the overreach, you know, I think overreach is in the eye of the beholder, and it’s sort of like the word “activist” judge is in the eye of the beholder. Some will say it’s an activist judge because they lost. Some will say the judge was absolutely wise because they won. I can’t speak to how a decision that hasn’t been made would affect us, because I don’t know what nine people, nine brilliant people, will actually say about the law. I’d like to read it. I know we’re all watching it. It was a state law. It does affect, potentially, the state prosecution of those 34 felonies. So we’ll, I think we just have to wait six more days. Yes, well,
Joanne Tan 8:23
In my humble opinion, it’s unlikely, no matter how extreme their partisanship is, they all, they all belong to one party or the other, to have absolute immunity, because that will be the last straw will break the camel’s back, because that means we are no longer a democracy, ruled by law. That’s for kings, okay, absolute immunity. So.
© Joanne Z. Tan All rights reserved.
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