WASHINGTON – The Supreme Court has decided to admit former President Donald Trump absolute immunity Some of his actions seeking to nullify the 2020 election have drawn criticism from those who see it as another sign that conservative justices are abandoning their judicial philosophy.
They were conservative judges is similarly confused A court ruled in March that Trump cannot be disqualified from the Colorado primary because of his actions leading up to the Jan. 6, 2021, attack on the Capitol.
After both of Trump’s victories, conservatives on the court faced accusations that they were abandoning their commitment to the judicial philosophy known as originalism, which says that questions about the Constitution should focus on its original meaning. Some justices, notably Clarence Thomas and Neil Gorsuch, have repeatedly emphasized that they rely on history and tradition when deciding legal questions about whether a statute is constitutional.
Most notably, the court has taken this approach in recent years in rulings expanding gun rights.
“Right now on this Supreme Court, originalism is a dead letter, only to be resurrected and used when it serves the purposes of the court,” said Michael Luttig, a conservative former federal judge.
Smita Ghosh, a lawyer with the liberal Center for Constitutional Accountability, which argues against immunity on historical grounds, said it was surprising that the court did not wrestle with history and tradition as it has in other contexts.
“It is eye-opening — and deeply disappointing — for justices who claim to care about text, history, and tradition,” he said.
Critics of the recent decision, authored by Chief Justice John Roberts, on the left and right point to presidents as having absolute immunity for certain conduct that underpins their official duties, which have no basis in the Constitution. .
“It’s anti-originalism because the historical evidence is overwhelmingly to the contrary,” said Boston University Law School professor Jed Shugerman. The amicus briefs in the case, he said, provided historical analysis that the majority opinion did not contend with.
“It’s surprising that the majority opinion ignores all the evidence,” he said. “Rejects him.”
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 inconsistent with the original meaning of the Constitution.” But he added that there was plenty of non-original case law to support the idea the decision was taking.
Aspects of the majority opinion drew sharp criticism from one of the court’s conservatives: Justice Amy Coney Barrett. He disagreed with Roberts and criticized the court for preventing any evidence of the president’s immunized actions from being admitted in a related criminal case.
He noted that the Constitution specifically prohibits the president from accepting bribes, but under Monday’s ruling, it will be difficult to prosecute the president unless evidence of such conduct is admitted.
Barrett wrote that “exclusion from court of any record of official action involving bribery would overwhelm the prosecution.”
Roberts noted in his reply memo that prosecutors “can point to the public record” to show that the president took the action in question. They simply cannot provide “statements or personal records of the president or his advisers.”
Clark Neily, a lawyer with the libertarian Cato Institute, said the back-and-forth between Barrett and Roberts at this point indicated that the president could not be prosecuted for taking bribes for the basic presidential function of pardoning someone.
“I think that’s one of the reasons people have a hard time accepting the majority opinion, myself included,” he said. On the other hand, he said that whether the presidents have some form of immunity is a “really close call”.
“Originalism Bulls—?” St. who wrote a legal research article. The immunity decision for Michael Smith, a professor at the University of Mary School of Law, has the same characteristics as the Colorado ballot decision. more important than reasoning.
“I see it as following a similar theme of adopting a method of interpretation that is more appropriate to achieve a particular result,” he said.