WASHINGTON — The Supreme Court’s decision to grant former President Donald Trump absolute immunity as some of his conduct in trying to overturn the 2020 election drew a chorus of criticism from those who saw it as yet another sign that conservative judges had abandoned their own judicial philosophy.
The latest round of criticism comes after conservative justices were equally ridiculed by the court ruling in March saying Trump could not be kicked off the Colorado primary ballot because of his actions leading up to the Jan. 6 attack on the Capitol.
After both of Trump’s victories, conservatives on the court faced accusations that they abandoned their commitment to the judicial philosophy known as originalism — which says questions about the Constitution should focus on its original meaning. Certain judges, including Clarence Thomas and Neil Gorsuch in particular, repeatedly underscore their reliance on history and tradition when deciding legal questions about whether a law is constitutional.
Most notably, the court has adopted this approach in rulings expanding gun rights in recent years.
“At this point, on this Supreme Court, originalism is a dead letter, to be resurrected and employed only when it suits the court’s purposes,” said Michael Luttig, a conservative former federal judge.
Smita Ghosh, a lawyer with the liberal Center for Constitutional Accountability who filed a brief arguing against immunity on historical grounds, said it was surprising that the court did not grapple with history and tradition as it has in other contexts.
“For judges who supposedly care about text, history and tradition, this failure to engage more fully was eye-opening – and deeply disappointing,” she added.
Those on the left and right who criticize the latest decision, authored by Chief Justice John Robertspoint in part to the conclusion that presidents have absolute immunity for certain conduct that is fundamental to their official duties, which, they say, has no basis in the Constitution.
“It’s anti-originalist because the historical evidence is overwhelmingly on the opposite side,” said Jed Shugerman, a professor at Boston University School of Law. He noted that the amicus briefs filed in the case provided a historical analysis that the majority opinion did not appear to dispute.
“It is surprising how the majority opinion ignores all the evidence,” he added. “That rules it out.”
Michael Rappaport, who directs the Center for the Study of Constitutional Originalism at the University of San Diego School of Law, similarly noted that “presidential immunity is not in keeping with the original meaning” of the Constitution. But, he added, there is plenty of non-originalist judicial precedent to support the idea, which is what the decision embraced.
Aspects of the majority opinion faced strong criticism from one of the court’s conservatives: Justice Amy Coney Barrett. She did not fully join Roberts’ opinion, criticizing the court for preventing any evidence of a president’s immunized acts from being admitted in a related criminal case.
The Constitution, she noted, specifically prohibits the president from accepting bribes, but under Monday’s ruling it would be difficult to prosecute him for doing so if evidence of his conduct could not be admitted.
Barrett wrote that “to exclude from the trial any mention of the official act relating to the bribery would prejudice the prosecution.”
Roberts responded in a footnote, saying prosecutors “can point to the public record” to show that a president did the act in question. They simply would not be able to present “private testimony or records from the president or his advisers.”
Clark Neily, a lawyer at the libertarian Cato Institute, said the back-and-forth between Barrett and Roberts on this point seemed to suggest that a president could not be prosecuted for accepting bribes for an essential presidential function, such as pardoning someone.
“I think this is one of the reasons why people find it so difficult to swallow the majority opinion, including me,” he said. On the other hand, he noted that the question of whether presidents should have some form of immunity is “very difficult.”
For Michael Smith, a professor at St. Mary’s University School of Law who wrote a law review article called “Is Originalism Bullshit?”, the immunity decision shares some of the same characteristics as the Colorado election decision, with the result being more important than reasoning.
“I see this as a similar theme of adopting an interpretive method that is best suited to achieving a specific outcome,” he said.
This article was originally published in NBCNews. with
