Supreme Hypocrites
The conservative Court abandons its much-vaunted commitment to textualism and originalism to hand Trump a win.
Plenty has already been said about the Supreme Court’s opinion in Trump v. United States, where it held that the President enjoys immunity for official acts.
Here, I want to focus on just one thing: the hypocrisy of the conservative majority’s abandonment of textualism and originalism.
Now, I don’t think the barren meaning of text always provides the answer. I also don’t think the original public understanding of the Constitution should bind us today.
But what is so frustrating about the majority opinion in Trump is that the people who joined it do think that and remind us about it all the time. And, yet, the opinion completely ignores both.
Instead, the Court relied on a handful of prior cases, none of which controlled the question before it. From them, it derived some general principles and then suggested that the result flowed naturally from them.
This is exactly the kind of constitutional adjudication that textualists and originalists on the Court have said, time and again, “risks handing judges a license to” ignore the Constitution.
Yet, here these same Justices do just that. The self-avowed “modest,” “minimalist” conservatives ignore their own rules to arrive at a result that is consistent only with their politics.
“We are all textualists now.” (When it suits us.)
Start with the Court abandoning textualism, the idea that judges should be guided by the text of the legal document to be interpreted. The conservative wing of the Court — which made up the majority in Trump — has for years been championing textualism.
Along the way, they have repeatedly chastised the liberal wing for allegedly ignoring the text of statutes or the Constitution to get its preferred result. The gravitational pull of textualism became so strong that Justice Kagan admitted years ago, “We are all textualists now.”
As recently as a few days ago, Justice Kavanaugh said in United States v. Rahimi, a case about the constitutionality of disarming dangerous people, that the “first and most important rule in constitutional interpretation is to heed the text — that is, the actual words of the Constitution.”
Well, maybe, maybe not. The conservative wing of the Court, Kagan has pointed out, has no problem jettisoning textualism when it gets in the way. As she wrote in West Virginia v. EPA, “The current Court is textualist only when being so suits it.”
Yesterday, it did not suit the Court to be textualist, so it was not.
The Constitution talks about other kinds of immunity, but you will search its text in vain for any mention of “absolute presidential immunity.” Ditto as to “presumptive presidential immunity.” Certainly, you’ll find nothing about a interest-balancing test for when presumptive immunity is overcome.
As Justice Alito wrote of Roe v. Wade in Dobbs v. Jackson Women’s Health, “Without any grounding in the constitutional text . . ., [the Court] imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation.”
Yesterday, though, the conservatives were unbothered by imposing this set of rules. Where they once laughed at the “facial absurdity” of implying a right of privacy from the Constitution, they did just that with this newly discovered scheme for presidential immunity.
Had you not noticed the Constitution’s solicitude for presidential immunity before? Did you not squint hard enough? You didn’t see these rules? You silly, child.
These new immunities, they say, are inherent in the “constitutional structure of separated powers” and the “nature of Presidential power.” These rules, unlike, apparently, the right of bodily autonomy, emanate from the divine architecture of the Constitution.
If the context were changed, if it was the liberal Justices engaged in this kind of workshopping of the Constitution’s text, it is hard to imagine the shrill that would come from the conservatives. Yesterday though, there was only approving silence.
Originalism Is for Suckers?
And, what about originalism’s vanishing act in Trump? Roberts, like his conservative colleagues, has long lectured that reliance on originalism — that is, interpreting the Constitution as the Founding-generation understood it—reins in the discretion of “unelected federal judges.”
In Trump, the supposed judicial modesty that accompanies originalism is nowhere to be found. The reason is simple: the Court’s opinion is not in any way originalist. As one prominent originalist academic lamented, “Try searching the opinions in Trump for ‘original meaning.’”
You’ll find none. The Court relies on essentially no evidence of the original understanding of presidential immunity at the Founding. Like textualism, resort to originalism is nowhere to be found because it gets in the way of the conservative majority’s preferred result.
As fifteen historians told the Court in a brief, “Sometimes history speaks ambiguously. But here, it speaks with surpassing clarity: The principle that a President may be prosecuted . . . began in the beginning.”
Remarkably, the conservative majority never confronts this history — not even Justice-cum-Historian Clarence Thomas. Instead, it attempts (and fails) to knock down just one piece of evidence on which the dissent relied.
At the Convention, Madison proposed discussion about including in the Constitution a clause for presidential immunity. While no records were kept of that discussion, no such clause found its way into the Constitution.
In 1800, when Charles Pinckney, a Framer, recounted the Convention, he said that the absence of such a clause was purposeful. “No privilege,” he said of the Framers, “was intended for the Executive.” Pinckney was in the room.
For an originalist, this is powerful evidence that no such privilege exists. Right? Right? Well, maybe, maybe not.
Yesterday, it was not enough for the conservatives. Yesterday, Pinckney’s views reflected only “the now-discredited argument that any immunity not expressly mentioned in the Constitution must not exist.” But, this is circular. It was the Trump majority who just “discredited” Pinckney’s arguments.
Roberts goes further though. He dismisses Pinckney — again, a Framer — as “not exactly a reliable authority.” This is so because on the “same day” that Pinckney recalled the Framers’ intention, he also maintained that the President should not have the power to appoint judges.
The appointment of judges or that Pinckney held that opinion on the “same day” that he recounted the Framers’ intention about presidential immunity, however, has quite literally nothing to do with anything.
More to the point though, I don’t think that Roberts realizes that Pinckney was a Framer. Roberts tosses Pinckney’s recollection of the Convention aside as if Pinckney is some sort of charlatan. But Pinckney was a delegate at the Convention. He signed the Constitution. He presented the Constitution to his home state of South Carolina for adoption.
Surely, his views must matter to the conservative originalists? Apparently not.
The conservative majority — a majority of originalists who think Founding-era understanding matters and, sometimes, is all that should matter — maintains that Pinckney had no idea what he was talking about. Amazing.
The Imperial Court
Being a textualist; being an originalist. These are choices. No one makes a judge approach a problem from this direction or that. Judges decide what makes sense to them. Ideally, they apply that approach consistently across cases (even if they might sometimes appear to be grasping for a certain result).
The conservative wing long ago decided that textualism and originalism made sense to them. It has been incessant about them over the years. Textualism and originalism, they say, are the best way (some would say the only way) to interpret the Constitution.
But not yesterday. No, yesterday, they abandoned their superior and humble methods. They provided no explanation for doing so. In that silence, we can infer that they had none beyond reaching a preferred political outcome.
This silence is startling in another way: they have the votes so they don’t need to explain their departure from their own professed methods. They don’t need to trouble themselves with fig leaves.
