Republicans used to criticize courts for “legislating from the bench,” and Chief Justice John Roberts claimed at his confirmation hearing that courts should just call balls and strikes. Yet the current U. S. Supreme Court, in recent rulings, has not only validated an imperial presidency that the Constitution’s framers would have found troubling but paved the way for a “rogue presidency.” Even though the court voted to allow President Donald Trump’s video sentencing to proceed by a slim 5 to 4 vote, both those in the minority and majority and the New York justice officiating the case were deferential to an inflated conception of the American presidency.

The four Supreme Court justices in the minority obviously thought that Trump–who committed the 34 felony counts before he became chief executive in 2017 and was convicted in 2024 after he left the office–should essentially escape scot-free from sentencing, even after a jury of his peers found him guilty as a private citizen. Because he had been elected president again despite his conviction and was in the long transition of two-and-a half-months before again taking office (other countries have much shorter transitions), the four justices held such an exalted view of the presidency that they thought somehow it might take away from his duties in an office he did not yet occupy. Those justices have clearly fallen victim to an extra-constitutionally strong American presidency.

Yet even the majority of five Supreme Court justices—three appointed by Democrats and two by Republicans—and the New York justice overseeing the case seemed to be mesmerized by this grandiose conception of the American presidency. The Supreme Court majority ruling decreed that “a brief virtual hearing” and New York Justice Juan Merchan’s “unconditional discharge” sentence (free of any jail time, fine, probation, or community service), signaled in advance, imposed only a “relatively insubstantial” burden of time on the president-elect. This Supreme Court result led one former New York judge, who had been in the courtroom, to declare that Merchan’s signaled non-sentence sentence to be a “masterstroke.”

And even Justice Merchan got on board with excessive deference to the presidency by invoking the supremacy clause of the Constitution that allows federal law to trump state law when they conflict. Merchan ruled that unconditional discharge was “the only lawful sentence” that avoided “encroaching on the highest office in the land.” Merchan also noted that he ruled as he did out of respect for the presidency, not for any occupant of the office.

In fact, the American legal system, including judges at the federal and state level and the Justice Department, have more respect for the American presidency than the Constitution’s framers did. The Justice Department even has a rule that a sitting president cannot be prosecuted, which caused Special Counsel Jack Smith to give up prosecuting Trump. Of course, nothing in the Constitution prevents prosecution of a sitting president, but the Justice Department, with a blatant conflict of interest, just doesn’t want to be in the awkward position of prosecuting its boss.

The Constitution’s framers–by placement of articles of the Constitution and the much greater number of enumerated powers given to the legislature than the president—clearly intended Congress to be the dominant branch of government, with an independent executive and judiciary designed to constrain the powerful legislative branch.

Over the 236 years since the Constitution was ratified, and mostly during the 20th and 21st centuries, presidents have extra-constitutionally usurped congressional powers while Congress has willingly abdicated them and the judiciary has blessed it all.

The Supreme Court recently has topped off this defilement of Madisonian constitutional checks and balances by giving the president “presumptive immunity” from criminal prosecution as long as he is conducting official duties—intimating that he would be afraid to do his job properly if he didn’t have such a get-out-of-jail-free card. Historically, chief executives have never needed such immunity to stretch their powers beyond the bounds of the Constitution, so why would they need even more of an incentive to do so with immunity. Furthermore, if one of the president’s primary duties is to enforce the laws, why would he need immunity from prosecution for violating those same laws.

In short, although he was an older first-time offender, Merchan could have justifiably sentenced Trump to a short stay in jail during the transition period for trying to intimidate prosecutors, witnesses, court employees, the jury, and even the justice during his trial.