The Supreme Court’s decision to grant presidents immunity from prosecution for criminal acts committed while in office not only gives Donald Trump a free pass for his past crimes, but sets a dangerous precedent for all future presidents.

Before Trump, no one had even argued that presidents are absolutely immune from criminal liability after they leave office. Indeed, every president – including Trump himself – assumed the opposite. In his impeachment trial Trump’s lawyers argued against impeachment by conceding that an acquittal would not be the end of potential accountability, because he could be criminally prosecuted after he left office. That concession was in line with all prior presidents’ acceptance that the United States is a place where all citizens, including the president, are equal under the law.

No more. In Trump v. United States, the court’s Republican-appointed justices — including the three Trump appointees — announced a brand new constitutional immunity from criminal liability for presidents’ “official acts,” or anything a president may do using the powers of the office. The court’s decision ensures that future presidents — including Trump himself should he win reelection in November — will know that they can escape criminal accountability for blatantly criminal acts, no matter how corrupt. Even acts that strike at the heart of our democracy, like resisting the peaceful transition of power, could not be prosecuted.

The court tried to cast its opinion as restrained, emphasizing that it rejected former President Trump’s most extreme claim: that presidents can only be prosecuted for crimes for which they had already been impeached. But as Justice Sonia Sotomayor pointed out in a powerful dissent, there is nothing measured about the opinion or its consequences. The court grants absolute immunity against criminal prosecution for any of a president’s “core” executive acts, which the court went on to define as including any use of the Justice Department—an ostensibly and traditionally independent agency–for criminal investigation. And it grants “presumptive” immunity for any acts within the “outer perimeter of his official responsibility.” While the latter immunity is in theory rebuttable, the court set such a high standard for rebutting it that it may be effectively absolute as well.

The court did hold that a president can be prosecuted for unofficial, purely private acts, a proposition even Trump did not dispute. But the court’s conception of official acts is strikingly broad. Worse, the court also held that official acts cannot even be used as evidence to support a crime committed in the president’s personal capacity, making it even more difficult for prosecutors to indict a president even for purely private criminal acts. The court purports to leave much of the work of hashing out the details in Trump’s case to lower courts. But the standards it announced will make holding any president criminally accountable extraordinarily difficult.

The immediate consequence of the decision is that it sends the current federal prosecution of former President Trump for interfering in the 2020 election into disarray. True, that prosecution is not yet dead. Formally, the Supreme Court only conclusively disqualified one set of allegations — those involving Trump’s communications to the Department of Justice — from the indictment. But as a practical matter, the fact-laden inquiry in which the district court must now engage, and any appeals thereto, will take many months if not years to resolve — all before any trial can commence. In addition, President Trump has already moved to wipe out his criminal conviction in New York State.

As Justice Robert Jackson warned in his dissent in the notorious Korematsu case upholding the federal government’s internment of Japanese Americans, the court’s opinion sits like a loaded weapon for future presidents, who can now avoid criminal liability for all manner of criminal ends so long as they do so through arguably “official” authorities.

As Justice Sotomayor wrote in her dissent:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

If former President Trump manages to win November’s election, it does not take much imagination to see just what kinds of retribution, or worse, the court has now greenlighted him to pursue against his political enemies.

But it’s important to remember that while this decision removes the possibility of criminal accountability, other forms of accountability remain. As long as this misguided decision remains the law, we must fight presidential abuses of power in other ways. In particular, we must resist encroachments on our rights and liberties, criminal or otherwise, before they happen — through civil lawsuits, the ballot box, and in the halls of power across the country. During the Trump administration, we filed more than 400 legal actions to defend constitutional rights and liberties from his administration’s unprecedented assaults — and often succeeded in halting illegal acts.

If he is elected again, we will be ready to do the same. Already our teams have drafted our response to the civil liberties and civil rights abuses outlined in Trump’s transition project, and we promise to challenge any acts – official or not – that violate the Constitution.

The threat of criminal prosecution is an important incentive to keep presidents from breaking the law. It’s largely gone now thanks to the Supreme Court. But it is only one form of accountability and constraint — one that, we should remember, had never been resorted to in the past. As they always have done, the courts can still enjoin illegal presidential behavior. Congress has important powers of oversight, the purse, and lawmaking that can check even a rogue president. And perhaps most important, by voting like our rights depend on it, we can all help ensure that future presidents will leave the court’s loaded gun in its holster.

Another Supreme Court term has come to a close. This year, the court delivered major decisions on abortion access, democracy, free speech, the rights of unhoused people, and gun safety among other issues. The ACLU was involved in cases throughout the term, including as lead counsel in a 9-0 victory for free speech.

However, the court radically moved the nation's law, threatening democracy, opening the doors for governments to criminally punish people because of who they are, and imperiling what abortion access remains throughout the U.S. following the court's 2022 Dobbs decision.

In a 6-3 ruling, the Supreme Court greatly expanded presidential immunity, making presidents more akin to a king than a public servant.

The opinion gives presidents legal cover to break the law when arguably using their formal powers to do so. This immunity includes much of former President Trump’s conduct in his effort to overturn a free and fair election that he lost. In a sharp opinion, Justice Sonia Sotomayor wrote, “with fear for our democracy, I dissent.” 

This decision means a president could commit absolute atrocities in office – turning the Armed Forces against political opponents, using the Justice Department to investigate or prosecute critics of the president, or worse – and as long as their actions are "official," they will be immune from criminal prosecution. 

Regarding former President Trump, the court ruled that he is at least presumptively immune from criminal liability for his official acts and is absolutely immune for some “core” of them – including his attempts to use the Justice Department to obstruct the results of the election. The majority also made it more difficult to consider evidence of criminal conduct.

The ACLU filed a friend-of-the-court brief arguing that the U.S. Constitution and decades of Supreme Court precedent support the principle that nobody is above the law – even the president. The ACLU’s brief further argued that while it has long been recognized that presidents cannot be prosecuted criminally in office, even presidents themselves have recognized that they can be prosecuted after leaving office. That is why President Gerald Ford deemed it necessary to pardon President Richard Nixon in 1974 following the Watergate scandal – a pardon that would have been unnecessary were Nixon immune from criminal prosecution. 

Congress must pass a constitutional amendment restoring presidential liability – because our democracy and freedom depend on our ability to hold public officials accountable no matter who is in charge.

Read the court’s opinion here and read more about the case here. 

The Supreme Court ruled that states and cities can punish unhoused people for sleeping in public, even if shelters are full and they have nowhere else to go.

The decision in Grants Pass eviscerates precedent that prohibited the government from punishing people simply for existing while homeless because doing so constitutes cruel and unusual punishment.

The court has opened the door for cities to legally try to punish people out of poverty, but our state and local leaders still have a choice. They can either continue the same failed policies and further harm the most vulnerable in our communities, or they can address the root causes of homelessness by increasing access to housing, health care, education, and jobs. 

Despite this ruling, unhoused people still have rights under state and federal law, including due process, freedom from discrimination, and protection from unreasonable search and seizure.

Know your rights while experiencing homelessness

The decision stems from a challenge to an ordinance in Grants Pass, Oregon, barring people from sleeping outside in public using a blanket, pillow, or something as basic as a cardboard sheet. A lower court ruled these restrictions violate the Eighth Amendment’s protections from cruel and unusual punishment by removing unhoused people’s ability “to take…rudimentary precautions to protect themselves from the elements.” 

The ACLU submitted a friend-of-the-court brief arguing that punishing unhoused people for sleeping outside when they cannot access shelter violates the Eighth Amendment’s protection from cruel and unusual punishment. As the brief highlights, the original meaning of the Eighth Amendment and its application in over 100 years of Supreme Court cases make clear that the government cannot punish people in ways that are disproportionate to the crime. 

We cannot ticket, fine, and jail our way out of homelessness, and the ACLU of Maine will continue opposing policies that treat unhoused people as criminals when they are simply trying to survive.

Read the court’s opinion here and read more about this case here. 

The Supreme Court dismissed a case challenging health care providers’ ability to provide emergency abortion care under federal law, sending the case back to the lower court without ruling on the merits.

Idaho’s ban on emergency abortion care has forced health care providers to choose between denying treatment to a patient in a medical emergency or facing criminal prosecution. The decision temporarily restores patients' ability to access emergency abortion care, as required under the Emergency Medical Treatment and Labor Act (EMTALA), but the court has only continued to put pregnant patients at unnecessary risk by declining to resolve the merits of the case. 

Moreover, the dissenting opinion by Justice Alito, joined by Justices Gorsuch and Thomas, will embolden those who are pursuing a strategy to give legal rights to embryos and fetuses that will override the rights of the pregnant person and ban not only abortion, but other forms of reproductive health care like fertility treatment and birth control. 

EMTALA is a 1986 federal law that requires any hospital with an emergency room that receives Medicare funds (virtually all hospitals) to provide stabilizing treatment to any patient experiencing an emergency medical condition. Following the Supreme Court’s 2022 decision in Dobbs, one of the most restrictive abortion bans in the country took effect in Idaho.

The U.S. Department of Justice (DOJ) sued Idaho in August 2022 since the state law violated EMTALA. A lower court granted an injunction, but Idaho appealed to the Supreme Court. The Supreme Court lifted the injunction, allowing the law to take effect during litigation, and took the case in January 2024. 

The ACLU filed a friend-of-the-court brief explaining how Idaho’s arguments cannot be justified under the Supreme Court’s own precedents and that all three branches of government have long recognized that hospitals are required to provide emergency abortion care to any patient who needs it under EMTALA.

Read the court’s opinion here and read more about this case here.

The Supreme Court unanimously rejected a request by anti-abortion groups to impose nationwide restrictions on mifepristone, a safe and effective medication used in almost two-thirds of abortions nationwide and also used for miscarriage care.

The decision will preserve the state-level patchwork of access to medication abortion for now, and medication abortion and miscarriage care remain legal in Maine – but today’s ruling is far from the end of the line.

This unanimous decision clarifies that the availability and use of this medication does not violate the rights of those who do not want to use it. Abortion bans in other states still stand and the court could consider other challenges in the future.

The case reached the Supreme Court after a federal district judge in Texas attempted to remove mifepristone from the market and the Fifth Circuit for the United States Court of Appeals imposed severe nationwide restrictions. In today’s ruling, the Supreme Court reversed the Fifth Circuit’s decision because the anti-abortion doctors who brought the case do not have a sufficient connection to the FDA’s regulation of mifepristone for legal standing.

The ACLU filed an amicus brief in this case highlighting how the lower court decisions imposing sweeping restrictions on mifepristone relied heavily on unreliable testimony and flawed research from a handful of witnesses who oppose abortion in all circumstances and want to see it banned nationwide.

Read the court’s opinion here and read more about this case here.

The Supreme Court upheld a federal law that makes it a felony for anyone subject to a civil domestic violence restraining order to possess a gun.

A lower court had invalidated the law because it found no analogues that restricted gun possession for those who commit domestic violence in the 1700s or 1800s, a time when federal and state governments largely ignored domestic violence. 

The lower court took that approach because the Supreme Court’s 2023 decision in Bruen required, in essence, that any modern gun safety laws have a historical twin law. That approach risks freezing government’s ability to protect people from newly recognized threats and tethers the authority to regulate gun possession to periods when governments disregarded many forms of violence directed against women, Black people, Indigenous people, and others.  

By upholding the law, the Supreme Court rejected an expansive argument proposed by the United States and adopted a narrower theory the ACLU advanced. The ACLU submitted a friend-of-the-court brief urging the Supreme Court to uphold the law, but on narrower grounds than those advanced by the government. 

The ACLU’s brief argued that imposing time-limited firearms restrictions based on civil restraining orders is a critical tool for protecting people who have experienced domestic violence and face a threat of further violence, and finds support in common law analogues disarming persons found dangerous. But the ACLU urged the court to reject the government’s argument that gun rights extend only to “responsible citizens.” The court expressly rejected that theory. 

Read the court’s opinion here and read more about this case here. 

The Supreme Court heard challenges to Texas and Florida laws that allowed the government to regulate how large social media companies like Facebook and YouTube curate content posted on their sites. The court sent the two cases challenging the laws back to the lower courts, ruling unanimously that the lower courts hadn’t conducted a proper analysis of the First Amendment challenges. The court also made clear that government regulation of how social media platforms curate their feeds violates the First Amendment. 

The court recognized that the government cannot control social media to impose its own vision of what online speech should look like. This is crucial to protecting the right to speak freely online and access information on the internet. 

The ACLU, ACLU of Texas, and ACLU of Florida joined a friend-of-the-court brief led by the Reporters Committee for Freedom of the Press (RCFP) urging the court to block the two laws. The ACLU and its partners argued that, under the guise of “prohibiting censorship,” these laws would have replaced the private entities’ editorial voice with preferences dictated by the government. 

Read the court’s opinion here and read more about the case here.

The Supreme Court ruled unanimously that a New York state regulator violated the National Rifle Association’s First Amendment rights.

The government employee used her official position to coerce private companies to blacklist the group because she disagreed with its political views. The ACLU represented the NRA, arguing that any government attempt to blacklist an advocacy group because of its viewpoint violates the First Amendment.

The ACLU disagrees sharply with the NRA on many issues but represented the group because of the First Amendment principles at stake. This case sets an important precedent for the free speech rights of all advocacy organizations, including the ACLU. While government officials are free to speak their mind, the First Amendment bars them from abusing their authority to pressure others to penalize speech based on its viewpoint. 

While the NRA advocates for dangerous policies that disproportionately harm Black and Brown communities, the ACLU challenged Vullo’s actions because allowing them to stand would have opened the door for other government officials to blacklist organizations like the ACLU. For instance, a governor like Ron Desantis might have used his authority to blacklist LGBTQ and other civil rights groups in Florida. 

Government officials cannot have unfettered power to blacklist – and ultimately punish – any organization until it can no longer pursue its mission simply because they disagree with the organization’s political stance.

Read the court’s opinion here and read more about the case here.

In addition to these significant decisions, the court has already taken up two ACLU cases for the upcoming term, including a challenge to Tennessee’s ban on gender-affirming care and internet censorship in Texas.

We are only able to show up in all of these cases – and cases to come – because of the unwavering support of people like you. Thank you so much for fueling our work through this Supreme Court session and for being by our side as we navigate the road ahead.