The Supreme Court’s conservatives often accuse liberals of inventing provisions nowhere to be found in the Constitution. Now, the fingers are pointed in the other direction.
At the attention-grabbing arguments this week over Donald Trump’s claim of sweeping presidential immunity from criminal prosecution, the six-member conservative bloc seemed largely unconcerned by a key flaw in Trump’s theory: Nothing in the Constitution explicitly mentions the concept of presidential immunity.
Trump’s lawyer told the justices that the founders had “in a sense” written immunity into the Constitution because it’s a logical outgrowth of a broadly worded clause about presidential power. But that’s the sort of argument conservative justices have often scoffed at — most notably in the context of abortion rights.
Two years ago, conservatives relied on a strict interpretation of the Constitution’s text and original meaning to overturn the federal right to abortion. But on Thursday, as they debated whether Trump can be prosecuted for his bid to subvert the 2020 election, they seemed content to engage in a free-form balancing exercise where they weighed competing interests and practical consequences.
Some critics said the conservative justices — all of whom purport to adhere to an original understanding of the Constitution — appeared to be on the verge of fashioning a legal protection for former presidents based on the justices’ subjective assessment of what’s best for the country and not derived from the nation’s founding document.
“The legal approach they seemed to be gravitating toward has no basis in the Constitution, in precedent, or logic,” said Michael Waldman, president and CEO of New York University’s Brennan Center for Justice. “It sure ain’t originalism.”
The two-hour, 40-minute argument session featured a boatload of scary hypotheticals about coups and assassinations, along with predictions about serial, tit-for-tat prosecutions of future presidents, but there was little discussion of the Constitution’s text.
That could come as a surprise to some. Justice Elena Kagan, one of the three liberals now on the court, famously declared in 2015 that conservatives had essentially won the decadeslong battle between those who favored a close fealty to text and original meaning and those who emphasized pragmatism or saw the Constitution as an evolving document.
“I think we are all textualists now,” Kagan told an audience at Harvard Law School then, as she delivered a lecture named for her then-colleague Justice Anontin Scalia, arguably the lead crusader for the text-based approach.
Kagan was perhaps the most insistent Thursday in highlighting the absence of any explicit immunity for presidents in the Constitution.
“The framers did not put an immunity clause into the Constitution. They knew how to. There were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn’t provide immunity to the president,” said Kagan, an appointee of President Barack Obama. “And, you know, not so surprising. They were reacting against a monarch who claimed to be above the law.”
Arguing for the Justice Department and special counsel Jack Smith, attorney Michael Dreeben emphasized that the court would effectively be announcing judge-made law if it says presidents are entitled to criminal immunity.
“There is no immunity that is in the Constitution, unless this Court creates it,” Dreeben declared. “There certainly is no textual immunity. … I think it would be a sea change to announce a sweeping rule of immunity that no president has had or has needed.”
Of course, the court isn’t writing on a blank slate. The current justices aren’t the ones who essentially made up executive privilege in a 1974 ruling related to the Watergate probe or the president’s immunity from civil suits in a 1983 case brought by an Air Force analyst pushed out of his job. Those cases were mentioned numerous times in Thursday’s arguments.
“Whoever is a textualist is a textualist leavened by precedent,” University of Virginia law professor Saikrishna Prakash said. “To say that everybody’s a textualist … I think suggests to some people the false hope that we all agree about what something means. I mean, we’re all speaking English, but we all disagree on the margins about what to make of someone’s communications.”
Dreeben told the court that the Justice Department supports those earlier rulings on presidential privilege and immunity, even though the Constitution contains no explicit provision addressing either topic.
A prominent Supreme Court critic, Georgia State University law professor Eric Segall, said there’s nothing intrinsically wrong with the justices reaching a legal conclusion that lacks direct support in the Constitution. But he said the members of the nation’s highest court should not pretend that, in doing so, they are simply engaged in a mechanistic application of legal text.
“Do I think there should be some kind of constitutional privilege for the President? Yes, I do. But we have to recognize how atextual that is,” Segall said.
Calling someone a “purposivist” or a “consequentialist” might set off a brawl at a Federalist Society gathering, but the raft of hypotheticals offered by both liberal and conservative justices suggested they were intensely focused on both the founders’ purposes in laying out three separate branches of government and the possible consequences of giving or denying Trump his requested immunity.
The conservative justices did not completely ignore textualism in the Trump arguments Thursday. Indeed, the first question asked — from Justice Clarence Thomas — urged Trump lawyer D. John Sauer to “be more precise as to the source of this immunity.”
In response, Sauer pointed to the extraordinarily broad words of the first sentence of Article II of the Constitution. “The executive Power shall be vested in a President of the United States of America,” it reads. Sauer didn’t read it aloud, perhaps because one can’t find any discussion of immunity there.
Sometimes, the court has found the absence of such language to be of great import.
Writing for five conservative justices in the earth-shaking abortion case two years ago, Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito referred to the notion of guaranteed access to abortion as “an asserted right that is nowhere mentioned in the Constitution.”
On Thursday, Sauer did offer one argument for presidential immunity drawn relatively directly from the text of the Constitution: The assertion that the language allowing for criminal conviction of a federal officer after impeachment by the House and conviction by the Senate implies that a current or former president can’t be criminally charged until and unless he or she is convicted by the Senate.
No justice of any stripe seemed particularly interested in that contention, although a couple did poke holes in it.
“What if the criminal conduct isn’t discovered until after the president is out of office, so there was no opportunity for impeachment?” Justice Amy Coney Barrett asked.
Sauer appeared to concede that adopting Trump’s approach would mean some presidential misconduct could never be punished.
“We say the framers assumed the risk of under-enforcement by adopting these very structural checks,” the Trump lawyer said.