Amy Coney Barrett at her Supreme Court nomination hearing Oct. 14, 2020. Coney Barrett told the senators three times at her hearing that nobody was “above the law.” She joined the majority opinion Monday that awarded presidents some immunity from prosecution. in 2022, its critics claimed that the justices who did it had lied — that they had promised not to do this during their confirmation hearings, then did it anyway.
A year before Kavanaugh’s hearings, now-Justice Neil M. Gorsuch was asked whether a president could be prosecuted for waterboarding people. Gorsuch initially said he wouldn’t speculate on such a case, before Sen. Lindsey Graham volunteered that a president is “not above the law.”Then-Sen. Patrick J. Leahy in 2006 asked now-Justice Samuel A. Alito Jr. whether a president could authorize a murder — perhaps by the intelligence community — and escape prosecution.
The phrase “above the law” was indeed spoken frequently in each of the justices’ confirmation hearings, amid questions about presidential power — though often the context was conflicts between the executive and other branches of government.“Senator, I believe that no one is above the law under our system, and that includes the president,” now-Chief Justice John G. Roberts Jr.
“But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties,” the majority wrote. “Accounting for that reality — and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would — does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.