WASHINGTON — The Supreme Court’s decision to grant former President Donald Trump absolute immunity for some of his conduct in an attempt to overturn the 2020 election has drawn widespread criticism from those who saw it as another sign that conservative justices are abandoning their own judicial philosophy.
The latest round of criticism comes after conservative justices came under similar fire over the court’s ruling in March that Trump could not be removed from the Colorado primary because of his actions leading up to the Jan. 6 attack on the Capitol.
After both Trump victories, conservatives on the court were accused of abandoning their commitment to the legal philosophy known as originalism — which holds that questions about the Constitution should focus on its original meaning. Certain justices, including Clarence Thomas and Neil Gorsuch in particular repeatedly emphasize that they rely on history and tradition when answering legal questions about whether a law is constitutional.
Most notably, the court has embraced this approach in rulings expanding gun rights in recent years.
“At this point in the Supreme Court, originalism is a dead letter. It can only be revived and used if it serves the purposes of the court,” said Michael Luttig, a conservative former federal judge.
Smita Ghosh, an attorney 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 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 with them was an eye-opener – and a huge disappointment,” she added.
Those on the left and right who criticize the latest ruling, drawn up by Chief Justice John Robertspoint in part to the finding that presidents enjoy absolute immunity for certain conduct within the scope of their official duties that they argue has no basis in the Constitution.
“It’s anti-originalist because the historical evidence is overwhelmingly on the other side,” said Jed Shugerman, a professor at Boston University School of Law. He noted that the amicus curiae briefs filed in the case contained a historical analysis that the majority opinion did not appear to grapple with.
“It’s amazing how the majority opinion ignores all the evidence,” he added. “It rejects it.”
Michael Rappaport, who directs the Center for the Study of Constitutional Originalism at the University of San Diego School of Law, noted that “presidential immunity is inconsistent with the original meaning” of the Constitution. But, he added, there is plenty of non-originalist case law to support the idea, which the ruling embraced.
Aspects of the majority opinion were sharply criticized by one of the court’s conservatives, Justice Amy Coney-BarrettShe did not fully agree with Roberts’ opinion and criticized the court for not admitting evidence of a president’s vaccination actions into a related criminal case.
According to her, the constitution explicitly prohibits the president from accepting bribes. However, according to Monday’s ruling, it would be difficult to prosecute him for that if no evidence of his behavior were allowed.
Barrett wrote that “excluding any mention of the official act connected with the bribery would hinder the prosecution.”
Roberts responded in a footnote, saying that prosecutors “may point to the public record” to show that a president carried out the act in question. They just wouldn’t be able to introduce “testimony or private accounts of the president or his advisers.”
Clark Neily, an attorney at the libertarian Cato Institute, said the discussion between Barrett and Roberts on this point seemed to indicate that a president cannot be prosecuted for taking bribes for one of his most important presidential duties, such as granting pardons.
“I think that’s one of the reasons why people find the majority opinion so hard to swallow, myself included,” he said. On the other hand, he noted that the issue of whether presidents should have some form of immunity is a “very close call.”
Michael Smith, a law professor at St. Mary’s University and author of a law journal article titled “Is Originalism Bullshit?”, argues that the immunity decision shares some of the same characteristics as the Colorado vote, where the outcome is more important than the reasoning.
“I see it as an appropriate theme for adopting an interpretive method that is better suited to achieving a particular result,” he said.
This article was originally published on NBCNews.com
