If SCOTUS rules against self-pardons, which justices would be in the majority?

[I’m not Stu]

If Trump tries to pardon himself, but the Supreme Court rules that he can't; how large would the majority be? Which justices are in the majority? Which justices would dissent?

[Rhenna]

5-4, Minority is Trump's next nominee, Alito, Thomas, and Roberts.
Gorsuch, Kagan, Ginsburg, Breyer, and Sotomayor are Majority.

[NewYorkExpress]

If Trump gets a new nominee through, I'm not sure they rule against self-pardons.

However, for the sake of this argument, I'll say, Roberts, Kagan, Breyer, Ginsburg and Sotomayor are the majority. Everyone else is in the minority.

[brucejoel99]

Either 6-3 or 5-4, w/ Roberts, Ginsburg, Breyer, Sotomayor, Kagan, & possibly Trump's nominee to replace Kennedy making up the majority (but only if it's Hardiman; every other potential nominee would be in the pro-self-pardon minority). The minority is Thomas, Alito, Gorsuch, & possibly Trump's nominee to replace Kennedy (every potential nominee other than Hardiman is in the pro-self-pardon minority).

[QAnonKelly]

If push came to shove, I think it would be the liberals + Roberts and Gorsuch. Thomas and Alito are the trolls and this is assuming Kavanaugh gets through, he's also a troll.

[UncleSam]

SCOTUS won’t rule against self pardons because they are obviously legal. It is also legal to impeach and remove a president for pardoning himself. If Kavanaugh is confirmed he has already stated that presidents (such as Clinton) should not be liable to be tried in court while president - it disrupts the country too much and anyone can bring a suit against a president or make an accusation. If the accusation is serious and well-founded then it is incumbent on congress to remove the president, not the Supreme Court to declare the president can’t pardon himself.

There’s no way any of the conservatives would rule that this is illegal, and frankly I think Breyer and Kagan would agree with them.

[Skill and Chance]

It would be one of those "originalism leads to surprising results" cases, meaning the most likely conservative vote to overturn the self-pardon would be Gorsuch, followed by Thomas.  Kavanaugh, and Alito would be the very most likely to uphold it, followed by Roberts.  They would basically say "if you have a problem with this, vote Trump out of office or get 67 senators to remove him."  Given his concurrence in Clinton v. Jones, I could also see Breyer voting to uphold it, but only if there are already 5 votes to strike it down.

So I'm thinking 5/4, Gorsuch/Thomas/Ginsburg/Sotomayor/Kagan vs. Alito/Kavanaugh/Roberts with Gorsuch writing for the court and Breyer writing alone with either a narrow concurrence or narrow dissent. 

The other possibility is some kind of narrow Roberts plurality opinion with Kagan, Breyer, and Kavanaugh that is controlling, which could be a frequent occurrence in politically charged cases going forward, but I just can't see it here given Kavanaugh's and Breyer's broad views on executive powers. 

[Torie]

POTUS has no power to pardon himself for impeachable offenses. What offenses would Trump pardon himself over that were not impeachable offenses that are in play?  In this context, SCOTUS I think would give a broad definition of what constitutes an impeachable offense. Sure, if Trump got arrested for using a prostitute or possession of pot (assuming they were federal crimes), he could pardon himself as to those "crimes."  But for colluding with Russia attempting to steal an election, or obstruction of justice with respect to an investigation about himself? No. If he pardoned himself for that, I think the SCOTUS vote invalidating the self pardon would be 9-0. Otherwise, Trump could not be prosecuted after being impeached and convicted and removed from office.

[brucejoel99]

POTUS has no power to pardon himself for impeachable offenses. What offenses would Trump pardon himself over that were not impeachable offenses that are in play?  In this context, SCOTUS I think would give a broad definition of what constitutes an impeachable offense. Sure, if Trump got arrested for using a prostitute or possession of pot (assuming they were federal crimes), he could pardon himself as to those "crimes."  But for colluding with Russia attempting to steal an election, or obstruction of justice with respect to an investigation about himself? No. If he pardoned himself for that, I think the SCOTUS vote invalidating the self pardon would be 9-0. Otherwise, Trump could not be prosecuted after being impeached and convicted and removed from office.

To use a broad definition, though, isn't an impeachable offense whatever a majority of the House of Representatives considers it to be at a given moment in history? Thus, using a prostitute or possession of pot (assuming they're federal crimes) are impeachable offenses (as high crimes & misdemeanors) if a majority of the House of Representatives deems them so & (via your logic) aren't crimes that can be granted a self-pardon.

Plus, how would SCOTUS even be permitted to hand down a broad definition of what constitutes an impeachable offense they themselves have already ruled that impeachment constitutes a nonjusticiable political question since Article I, section 2 of the Constitution states that the House "shall have the sole power of Impeachment" & Article I, section 3 provides that the "Senate shall have the sole Power to try all Impeachments". Thus, since the Constitution placed the sole power of impeachment in two political bodies, it's qualified as a political question. As a result, neither the decision of the House to impeach nor a vote of the Senate to remove a President or any other official can be appealed to any court (including SCOTUS).

Considering the above, wouldn't that mean that the President simply can't pardon himself, even from prosecution?

[OSR stands with Israel]

7-2 maybe 8-1:


Thomas and maybe Kavanaugh are the only ones who dissent

[Torie]

Good question. My take is the Court has the power to determine what is an impeachable offense (enough as it were to issue an inditement based on "reasonable" cause, which is a fairly low bar), for purposes of the self pardon issue, but has no power to second guess the House voting out the impeachment, nor the Senate when deciding whether or not to convict. It would make no sense for the House to be voting what is impeachable for purposes of negating a self pardon.

On the other hand, perhaps if the House votes out an impeachment, a prior self pardon by Trump would be negated. That resolution is unsatisfactory in the sense the the legality of the self pardon remains in limbo unless and until the House acts. But maybe it doesn't matter if its legality is in limbo, because a sitting POTUS probably cannot be indicted and tried. But that leaves the issue of whether the POTUS can be prosecuted after he leaves office. At that point, unless he was impeached, the issue of whether the self pardon is legal will have to be decided by the Courts. So there is no escape from the Courts having to decide this issue one way or the other.

I think I changed my mind about three time as I typed this, and different angles to this puppy popped into my mind. How mentally exhausting. I need some "medication" now I think.

[brucejoel99]

Good question. My take is the Court has the power to determine what is an impeachable offense (enough as it were to issue an inditement based on "reasonable" cause, which is a fairly low bar), for purposes of the self pardon issue, but has no power to second guess the House voting out the impeachment, nor the Senate when deciding whether or not to convict. It would make no sense for the House to be voting what is impeachable for purposes of negating a self pardon.

On the other hand, perhaps if the House votes out an impeachment, a prior self pardon by Trump would be negated. That resolution is unsatisfactory in the sense the the legality of the self pardon remains in limbo unless and until the House acts. But maybe it doesn't matter if its legality is in limbo, because a sitting POTUS probably cannot be indicted and tried. But that leaves the issue of whether the POTUS can be prosecuted after he leaves office. At that point, unless he was impeached, the issue of whether the self pardon is legal will have to be decided by the Courts. So there is no escape from the Courts having to decide this issue one way or the other.

I think I changed my mind about three time as I typed this, and different angles to this puppy popped into my mind. How mentally exhausting. I need some "medication" now I think.

Well, agree to disagree then I suppose lol because the way I see it, Congress alone could decide for itself what constitutes a "high crime or misdemeanor" since while, yes, the Supreme Court is the ultimate intrepreter of the Constitution a matter (i.e. impeachment) is nonjusticiable when there's a constitutional commitment of the issue to a coordinate political department (i.e. Congress).

[Torie]

Good question. My take is the Court has the power to determine what is an impeachable offense (enough as it were to issue an inditement based on "reasonable" cause, which is a fairly low bar), for purposes of the self pardon issue, but has no power to second guess the House voting out the impeachment, nor the Senate when deciding whether or not to convict. It would make no sense for the House to be voting what is impeachable for purposes of negating a self pardon.

On the other hand, perhaps if the House votes out an impeachment, a prior self pardon by Trump would be negated. That resolution is unsatisfactory in the sense the the legality of the self pardon remains in limbo unless and until the House acts. But maybe it doesn't matter if its legality is in limbo, because a sitting POTUS probably cannot be indicted and tried. But that leaves the issue of whether the POTUS can be prosecuted after he leaves office. At that point, unless he was impeached, the issue of whether the self pardon is legal will have to be decided by the Courts. So there is no escape from the Courts having to decide this issue one way or the other.

I think I changed my mind about three time as I typed this, and different angles to this puppy popped into my mind. How mentally exhausting. I need some "medication" now I think.

Well, agree to disagree then I suppose lol because the way I see it, Congress alone could decide for itself what constitutes a "high crime or misdemeanor" since while, yes, the Supreme Court is the ultimate intrepreter of the Constitution a matter (i.e. impeachment) is nonjusticiable when there's a constitutional commitment of the issue to a coordinate political department (i.e. Congress).

Just to be clear, the House can impeach for anything, including the color of Trump's hair, and SCOTUS cannot second guess. But after POTUS leaves office, and is indicted, then the issue is whether or not the self pardon is valid. There I think the courts can adjudicate for this purpose whether the crime that was self pardoned is or is not an impeachable offense. The House is out of the loop at that point obviously.

[I’m not Stu]

Most likely to least likely conservative justices to rule against Trump

1. Roberts (most likely conservative to rule against Trump overall)
2. Gorsuch (surprising originalist ruling in Sessions v. Dimaya, more skeptical of executive power)
3. Alito (ruled against PAGOP redistricting lawsuit and declined to hear California pro-gun lawsuit)
4. Tie - Kavanaugh and Thomas (under no circumstances would they rule against Trump)