WASHINGTON — 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 attracted a chorus of criticism from those who saw it as another sign of conservative justices’ abandoning their own judicial philosophy.
The conservative justices were similarly pilloried for the court's ruling in March saying Trump could not be kicked off the primary ballot in Colorado over his actions leading up to the Jan. 6, 2021, attack on the Capitol.
After both Trump victories, the 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 justices, including Clarence Thomas and Neil Gorsuch in particular, repeatedly stress their reliance on history and tradition in deciding legal questions about whether a law is constitutional.
Most notably, the court has embraced such an approach in rulings that have expanded gun rights in recent years.
"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," said Michael Luttig, a conservative former federal judge.
Smita Ghosh, a lawyer at the liberal Constitutional Accountability Center who filed a brief arguing against immunity on historical grounds, said it was surprising that the court did not wrestle with history and tradition as it has done 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 added.
Those on the left and the right critiquing the latest ruling, authored by Chief Justice John Roberts, point in part to the finding that presidents have absolute immunity for certain conduct that is core to their official duties, which they say has no basis in the Constitution.
"It is anti-originalist because the historical evidence is overwhelmingly on the opposite side," said Jed Shugerman, a professor at Boston University School of Law. He said amicus briefs filed in the case provided historical analysis that the majority opinion did not appear to wrestle with.
"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, similarly noted that "presidential immunity does not accord with the original meaning" of the Constitution. But, he added, there is plenty of non-originalist court precedent to support the idea, which is what the ruling embraced.
Aspects of the majority opinion faced strong criticism from one of the court's conservatives: Justice Amy Coney Barrett. She did not join Roberts' opinion in full, 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 bars the president from accepting bribes, but under Monday's ruling it would be difficult to prosecute a president for it if evidence of such conduct could not be admitted.
Barrett wrote that "excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution."
Roberts responded in a footnote, saying prosecutors "may point to the public record" to show that a president performed the act in question. They just 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 back-and-forth between Barrett and Roberts on that point seemed to suggest 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. On the other hand, he said the issue of whether presidents should have some form of immunity is a "really close call."
To Michael Smith, a professor at St. Mary’s University School of Law who has written a law review article called "Is Originalism Bulls---?," the immunity decision shares some of the same characteristics as the Colorado ballot decision, with the outcome being 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.
