The Supreme Court’s decision to grant former President Donald Trump absolute immunity for some of his conduct in seeking to overturn the 2020 election has sparked significant criticism. Many see it as another instance of conservative justices abandoning their own judicial philosophy. The conservative justices faced similar backlash in March when the court ruled that Trump could not be removed from the primary ballot in Colorado over his actions leading up to the January 6, 2021, attack on the Capitol.
Following these rulings, the conservative justices were accused of abandoning their commitment to originalism, a judicial philosophy that interprets the Constitution based on its original meaning. Justices like Clarence Thomas and Neil Gorsuch have often emphasized their reliance on history and tradition in determining the constitutionality of laws. This approach has notably been used to expand gun rights in recent years.
Michael Luttig, a conservative former federal judge, remarked, “At this point at this Supreme Court, originalism is a dead letter, to be resurrected and employed only when it suits the court’s purposes.” Smita Ghosh, a lawyer at the liberal Constitutional Accountability Center, expressed surprise that the court did not engage with history and tradition as it has in other contexts. “For justices who purportedly care about text, history, and tradition, this failure to engage more fully was eye-opening — and profoundly disappointing,” she said.
Critics from both the left and the right have pointed out that the ruling, authored by Chief Justice John Roberts, asserts that presidents have absolute immunity for certain conduct core to their official duties, a notion they argue has no constitutional basis. Jed Shugerman, a professor at Boston University School of Law, stated, “It is anti-originalist because the historical evidence is overwhelmingly on the opposite side.” He noted that amicus briefs provided historical analysis that the majority opinion did not address. “It is astounding how the majority opinion ignores all the evidence,” he added. “It dismisses it.”
Michael Rappaport, who runs the Center for the Study of Constitutional Originalism at the University of San Diego School of Law, also noted that “presidential immunity does not accord with the original meaning” of the Constitution. However, he acknowledged that there is ample non-originalist court precedent supporting the idea, which the ruling embraced.
Justice Amy Coney Barrett, one of the court’s conservatives, did not fully join Roberts’ opinion. She criticized the court for preventing any evidence of a president’s immunized acts from being admitted in a related criminal case. The Constitution specifically bars the president from accepting bribes, but under the ruling, it would be difficult to prosecute a president for such conduct if evidence could not be admitted. Barrett wrote, “Excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution.”
Roberts responded in a footnote, stating that prosecutors “may point to the public record” to show that a president performed the act in question, but they would not be able to introduce “testimony or private records of the president or his advisers.” Clark Neily, a lawyer at the libertarian Cato Institute, said the exchange between Barrett and Roberts suggested that a president could not be prosecuted for taking a bribe for a core presidential function, such as pardoning someone. “I think this is one of the reasons people find the majority opinion so difficult to swallow, including myself,” he said. However, he noted that the issue of presidential immunity is a “really close call.”
Michael Smith, a professor at St. Mary’s University School of Law, who has written a law review article titled “Is Originalism Bulls—?,” observed that the immunity decision shares characteristics with the Colorado ballot decision, where the outcome seemed more important than the reasoning. “I do see it as fitting a similar theme of adopting an interpretive method that is better suited to accomplish a particular result,” he said.
The ruling has broader implications beyond Trump. Critics argue that it sets a dangerous precedent for future presidents, potentially allowing them to engage in misconduct without fear of prosecution. The decision has raised concerns about the court’s commitment to originalism and its willingness to interpret the Constitution based on historical context.
The concurring opinion by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson argued for judicial restraint. They contended that the Reconstruction Amendments, including the 14th Amendment, are self-executing and do not require legislation for enforcement. “Section 5 gives Congress the ‘power to enforce [the Amendment] by appropriate legislation.’ Remedial legislation of any kind, however, is not required,” they wrote.
The ruling has been seen as a victory by Trump’s supporters, but it is viewed as a loss for America by many others. Critics argue that the decision undermines the 14th Amendment and sets a troubling precedent for future presidents. The court’s conservative majority has been accused of ruling broadly to achieve their desired outcomes, raising concerns about the court’s partisanship and lack of discipline.
Source: NBC News
