The Silver Lining: The Court Has No More Credibility

The Supreme Court tossed its own rules to give Trump immunity

Now that the legal community has had a few days to digest the Supreme Court’s decision to grant the President of the United States practically complete immunity from criminal law, it’s become clear that, if the Court had any credibility left, it traded all of it in order to make this ruling.

To understand why this is the case, we need to look at originalism – this Court’s mandated method of interpreting the Constitution – and then note that it’s not just missing from the majority’s opinion; the majority did the exact opposite of it.

How Originalism Works

“It is emphatically the province and duty of the judicial department to say what the law is.” Of course, “saying what the law is” requires the judge to interpret the law and apply it to the particular case. What if the law is vague?

Over nearly 250 years now, several methods have been developed to interpret U.S. laws in principled ways. Some methods are limited to solve specific problems, and many are concepts we use in daily life. For example, under the general/specific method of interpreting laws, specific provisions prevail over conflicting general provisions. If I say, “I hate everyone, except Steve,” you’d be dumb to claim that I hate literally everyone.

Originalism is one of these methods. It’s the idea that laws should be interpreted by the original meaning of the text at the time of the law’s adoption. This means the U.S. Constitution should be read according to the meaning of the text, as it was in the 1780s when it was written, and that the 14th Amendment, for example, should be read according to the meaning of the text from 1868.

This is what is going on when you see judges in 2008 referring to dictionaries from the late 1770s to interpret the 2nd Amendment:

They’re looking for what the words meant, back then.

Note how central the text of the law is for originalism. There is no room in originalism for going outside of the words on the page, save to look for historical context to interpret what they meant to those who wrote them. There is no going looking through the debates from before the law was set in stone to see what the lawmakers intended the law to mean. And there is certainly no making policy arguments about how we should be interpreting these old words so they fit today’s problems.

Originalism: The Apolitical Way to Guarantee Conservative Outcomes

The problem is that originalism is only taken seriously by the people who see it as a tool to guarantee conservative interpretations of the Constitution while using what appears to be an apolitical intellectual principle to do it. While its proponents insist that it is “the only” way to read the Constitution, the validity of originalism has been debunked. According to one leading constitutional scholar, just a few of the most glaring problems with it are that:

• It requires reading historical sources that produce numerous meanings of the law, from which conservative judges can choose their preferred interpretation even though there are equally plausible ones that contradict it

• It is based on the idea that we can determine the Founding Fathers’ meaning, when it is clear from experience that we can’t even determine the meaning of lawmakers who are alive and can be asked what it was

• There were numerous Founding Fathers with conflicting ideas about the laws they were making, allowing originalists to shop around for the one with the interpretation they want

• The vague language of the Constitution is a strong sign that the Founding Fathers did not want a stagnant reading of the document

• Originalists insist that it is the original meaning of the text of the Constitution that must be used to decide whether a law is constitutional or not, a process known as “judicial review,” but the Court’s authority to perform judicial review is not in the Constitution – it was created by the Court itself – so under originalism there is no judicial review

• It produces antiquated results that have no place in modern society, like extreme forms of discrimination

• It ignores the fact that the Founding Fathers would not fathom modern issues, like surveillance technology

But the idea that originalism is a “principled” way of reading the Constitution is a longstanding joke due to how quickly originalists abandon it when the outcome it would produce is not one that they want.

The Current Supreme Court is Based on Originalism

For the last four years, the biggest Supreme Court’s decisions have been deeply rooted in originalism.

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court tossed earlier cases about gun control and now require all gun control measures to be “consistent with the Nation's historical tradition of firearm regulation.” I.e., a restriction on the Second Amendment is only constitutional if there was a similar one in the 1780s, which very nearly led to the restrictions on gun ownership by domestic abusers who threatened to shoot someone getting invalidated as well – and only because the originalists on the court dropped their charade for a moment.

In Dobbs v. Jackson Women’s Health Organization, the Court tossed earlier cases about the right to an abortion, stating that “any such right must be deeply rooted in this Nation's history and tradition… Until the latter part of the 20th century, such a right [to abortion] was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.”

In Students for Fair Admissions v. Harvard College, the Court tossed earlier cases about affirmative action and “all lives matter”ed the Equal Protection Clause by looking to the text of the Fourteenth Amendment and only the text. You can just see Justice Uncle Thomas saying, “It says that no State shall ‘deny to any person… the equal protection of the laws,’ so race-based admissions denies whites the opportunity that they are constitutionally entitled to, so…” Never mind how the Fourteenth Amendment, and other contemporaneous laws like the one creating the Freedman’s Bureau, were specifically made to help Black former slaves in the south.

But at least the six justices that practice originalism would reliably continue to practice it when Trump argued that he was a king who could not be held to account for crimes committed in office, right?

Originalism, and Credibility, Evaporate in the Face of Politics

In the majority’s opinion of the fittingly titled Trump v. United States, originalism was nowhere to be seen.

The text of the Constitution does not touch on criminal immunity for Presidents. However, it does touch on criminal immunity for legislators in the Speech or Debate Clause, it does imply criminal prosecution of the President after impeachment and removal, and there were state constitutions at the time that provided criminal immunity to governors. That fact that, in spite of all this, the Constitution is silent on whether the President is immune from prosecution makes it quite plain that the original meaning of the Constitution is that there is no such immunity. The Constitution could confer immunity, but it doesn’t.

So the majority ignores the Constitution.

Instead, it relies heavily on the prior Supreme Court case that granted civil immunity to Presidents, using it to justify extending that immunity to criminal liability.

And the court makes policy arguments, the very thing that originalism forbids in the harshest terms.

Legally, policy arguments are atextual, based on vague, amorphous concepts, and focus on what should be, rather than on what the law is. They are anathema to the concept of originalism.

The Republican majority does this by flying straight to one of the most amorphous concepts of constitutional law; the separation of powers. It then waxes poetic about how it is good policy to have a President who can act boldly, rather than one second-guessing and hesitating because of the potential for criminal charges to be filed. It ignores how, 45 presidents in, this hasn’t been a problem. And it completely ignores the concern on the other side of that policy – having a President that can crime at will.

Mere days after putting executive agencies under the management of the judicial branch, the Court ruled that the head of the executive branch had no checks or balances at all. The separation of powers have been twisted into a pretzel.

And the majority did this by pointing at The Federalist No. 70, a contemporaneous document to the writing of the Constitution that itself implies no immunity because it contemplates presidents being punished for their conduct.

“The first man put at the helm will be a good one. Nobody knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a Monarchy.” – Benjamin Franklin

This is All About the Right Wing’s Unflinching Use of Power

Trump v. United States is the final nail in the coffin of the Supreme Court’s credibility. After insisting for years that originalism is the one and only way to read the Constitution legitimately, the Republican appointees completely abandon it for anti-originalism when right-wing power is threatened. The Court is a political branch of the government now.

There is very little doubt left that originalism was just a tool, a façade of intellectual principle, wielded by the only principle that the right wing operates under: Power.

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