Opinion | What Happened to the Originalism of the Originalists?

When I read the majority opinion on Monday in Trump v. United States, which held that presidents enjoy absolute immunity for official acts within their “conclusive and preclusive” constitutional authority and presumptive immunity for all other official acts, I was genuinely and sincerely confused. The Supreme Court’s opinion is difficult to decipher, and in many important ways it is not originalist. For the second time this term — after Trump v. Anderson, which blocked efforts to remove Donald Trump from the ballot under Section 3 of the 14th Amendment — the court has reached a decision that’s truly difficult to square with the constitutional text.

What is going on?

I reject the simplest explanation — the explanation you can see plastered all over social media — that the court’s conservative majority is biased in favor of Trump. In this era of institutional collapse, I’m certainly more open to allegations of corruption or venality than I was in years past, but it’s hard to square this explanation with the judicial evidence. After all, if the conservative majority was truly in thrall to Trump, the election challenges in 2020 would have had a very different outcome. Instead, conservative judges at every level of the judiciary — including at the Supreme Court — rejected Trump’s specious arguments.

Even more, as I’ve explained in detail in long analyses in 2023 and 2024, in many other areas the court has specifically rejected MAGA legal arguments, including by dismissing a dangerous legal theory — called the independent state legislature doctrine — that was one of the cornerstones of Trump’s effort to overturn the 2020 election and would be the cornerstone of any future effort to disrupt election results.

Given this history, however, one would have expected a narrower immunity ruling in Trump v. United States and a narrower ruling in Trump v. Anderson. Instead, the conservative majority created a barrier to prosecuting presidents for even the most blatantly corrupt official acts and blocked any enforcement of Section 3 against candidates for federal office in the absence of congressional action.

In reading both decisions, I’m struck by the way the court’s conservative majority (with the partial and notable exception of Amy Coney Barrett) ultimately made a series of policy choices more than it engaged in the kind of close textual analysis that should be the hallmark of originalism. The court’s policy choices are rooted in real concerns, but they’re not textual, they should not be constitutional, and they contradict the wiser judgment of the founders in key ways.

If the court in Trump v. Anderson had upheld Colorado’s decision to remove Trump from the ballot, such a ruling would have raised the possibility that rogue state officials or a rogue judge could knock candidates off ballots for illegitimate reasons. And in Trump v. United States, there was an obvious concern that future presidents would wield their prosecutorial discretion in blatantly political ways, perhaps pursuing their political opponents by stretching broad federal criminal statutes to prosecute predecessors for their different policy choices, not for true corruption or criminality.

Both these concerns are legitimate. Before Trump v. Anderson was decided, Republican officials openly mused about ejecting Joe Biden from the ballot, including on the grounds that permitting an “invasion” at the border constituted a form of insurrection or rebellion. Similarly, Trump has threatened to prosecute Biden.

There is no question that it would be terrible for our democracy if states engaged in abusive attempts to limit candidates’ access to the ballot, or if presidents ordered prosecutions for political reasons. The court’s decisions in both cases go a long way toward preventing future injustices, including potential future injustices by Trump.

As a matter of pure policy, then, these Supreme Court rulings represent a credible choice. But I fear that the court’s originalist majority neglected its originalism.

The Supreme Court isn’t a policy-making body; it’s an interpretive body. Indeed, conservatives often deride any approach that injects the judge’s policy preferences into the textual analysis of the Constitution as a form of “living constitutionalism.” Yet in both cases it was the court’s liberal dissenters who made the better textual case for their position.

Let’s take, for example, the plain text of Section 3 in Trump v. Anderson. Section 3 begins with an unequivocal declaration: “No person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States, or under any state” having taken a previous oath of office and then engaged in insurrection or rebellion against the Constitution or provided “aid and comfort” to the enemies of the Constitution.

The language is plainly mandatory. Yet the practical result of the Supreme Court’s opinion is to change the plain meaning to add a final, unwritten additional condition: Section 3 is enforceable against candidates for federal office only if Congress makes it enforceable.

Similarly, the court’s immunity ruling both adds to the Constitution and deviates from its text. You can read the entire document from cover to cover and not find a single reference to presidential immunity, and it’s not as if the founders were unfamiliar with the concept.

This is entirely consistent with a constitutional structure that is comprehensively anti-monarchical. The founders could have made the president more powerful and less accountable, but they chose the opposite course — and for good reason. They had fresh experience with the terrible consequences of consolidating power in the hands of one person.

Consequently, to the extent that the Constitution speaks at all to presidential criminal liability, it leaves the door wide open. The impeachment judgments clause limits the reach of an impeachment conviction to removal from office and disqualification from future federal office (in other words, impeachment convictions do not function like criminal convictions), but the clause also states, “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

The court’s ruling alters that clause — essentially changing the word “shall” to “may.” Even a party convicted after impeachment can still be absolutely immune from prosecution if he was acting while carrying out a “core constitutional power.” Even when the president’s official actions aren’t “core,” they’re still presumptively immune, presenting a high bar for prosecuting any official act.

I disagree with the conservative majority in both Trump cases, but not because I think the court is trying to do Trump favors or because I think its policy concerns are frivolous. There are legitimate reasons to worry about rogue prosecutions or rogue efforts to knock candidates from ballots.

I disagree with the Supreme Court’s rulings for the most basic reason of all — they do not square with the text of the document the justices are supposed to interpret, and that means they’re granting the presidency a degree of autonomy and impunity that’s contrary to the structure and spirit of American government. In both Trump cases, the liberal minority was more originalist than the conservative majority. This time, it was the conservatives who created a living constitution.

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