I was genuinely troubled when I read the majority opinion in Trump v. United States on Monday, which held that the President enjoys absolute immunity for official acts within his “definitive and exclusive” constitutional powers, and presumed immunity for all other official acts. The Supreme Court’s opinion is difficult to decipher and is not originalist in many important respects. For the second time this term, the Supreme Court has handed down a decision that is truly difficult to square with the letter of the Constitution, following Trump v. Anderson, which blocked efforts to remove Donald Trump from the ballot under Section 3 of the Fourteenth Amendment.
What is going on?
I reject the most simplistic explanation seen all over social media: that the Supreme Court’s conservative majority is biased in favor of Trump. In this era of broken institutions, I am certainly more receptive to allegations of corruption and fraud than I was in the past, but this explanation is difficult to square with the judicial evidence. After all, if the conservative majority had truly caved in to Trump, the 2020 election challenges would have had a very different outcome. Instead, conservative judges at all levels of the judiciary, including the Supreme Court, rejected Trump’s plausible claims.
Moreover, as I detailed in my lengthy 2023 and 2024 analyses, courts have explicitly rejected MAGA legal arguments in many other areas, including rejecting a dangerous legal theory called the separate state legislatures doctrine, which was one of the cornerstones of Trump’s efforts to overturn the 2020 election and will likely be a cornerstone of any future efforts to disrupt election results.
Given this history, narrower immunity rulings were expected in Trump v. United States and Trump v. Anderson, but the conservative majorities created barriers to prosecuting the president for even the most blatantly corrupt official conduct and blocked the application of Article III to candidates for federal office in the absence of congressional action.
Reading both decisions, I was struck by how the Court’s conservative majority (with the partial and notable exception of Amy Coney Barrett) ultimately chose a series of policy choices rather than the kind of careful textual analysis that should characterize principled law. The Court’s policy choices are rooted in practical concerns, but are not textual, are not constitutional, and are in important ways at odds with the wisdom of our Founding Fathers.
If the Court had upheld Colorado’s decision to remove Trump from the ballot in Trump v. Anderson, such a ruling would have made it more likely that corrupt state officials or corrupt judges would remove candidates from the ballot for improper reasons. And in Trump v. United States, there were obvious concerns that future presidents would exercise prosecutorial discretion in a blatantly political way, perhaps extending broad federal criminal laws to pursue political opponents by prosecuting their predecessors for different policy choices rather than for true corruption or criminal conduct.
Both concerns are legitimate. Before Trump v. Anderson was decided, Republican officials were openly considering removing Joe Biden from the ballot, including on the grounds that allowing an “invasion” at the border would constitute a form of insurrection or treason. Similarly, Trump has threatened to prosecute Biden.
There is no doubt that it would be dire for our democracy if states were to attempt to unfairly restrict a candidate’s access to the ballot, or if a president were to order prosecutions for political reasons. The Supreme Court’s decisions in both cases would go a long way to preventing future fraud, including that perpetrated by Trump.
As a purely political matter, These Supreme Court decisions represent a credible choice, but I worry that the Court’s fundamentalist majority has ignored that principle.
The Supreme Court is an interpretive body, not a policy-making body. Indeed, conservatives often scorn the approach of bringing justices’ policy preferences into textual analysis of the Constitution as a form of “living constitutionalism.” Yet in both cases, it was the Court’s liberal dissenters who better argued for their positions in textual terms.
For example, take a look at Section 3 of Trump v. Anderson. Section 3 begins with a clear declaration:Anyone Any person “who has not been a Senator or Representative in Congress, or an elector for President or Vice President, or who has held any civil or military office under the United States, or any State,” after previously taking the oath of office, has engaged in insurrection or rebellion against the Constitution, or given “aid or comfort” to the enemies of the Constitution.
This language is clearly enforceable. But the practical effect of the Supreme Court’s decision is to change the plain meaning and add a final, implied, additional condition: Article III is enforceable against candidates for federal office only if Congress deems it enforceable.
Similarly, the Court’s immunity decisions add new content to the Constitution while at the same time deviating from its text. A full read of the Constitution does not contain a single reference to presidential immunity. It is not as if the Founding Fathers were unaware of the concept of immunity.
This is entirely consistent with a constitutional structure that is entirely opposed to monarchy. The Founding Fathers could have strengthened the powers of the President and reduced his responsibilities, but they chose the opposite. They had good reason to do so: they had fresh experience with the dire consequences of concentrating power in one person.
As a result, to the extent that the Constitution addresses criminal liability of the president, that possibility remains very much open. The Impeachment Clause limits the scope of an impeachment conviction to removal from office and disqualification from future Federal office (in other words, an impeachment conviction does not operate like a criminal conviction), but it also states that “Parties so convicted shall be liable to and subject to the prosecution, trial, sentence and punishment according to law.”
The Court’s decision modifies this provision, essentially changing the word “shall” to “may.” Even a party convicted after impeachment may enjoy blanket immunity from prosecution if they exercised “core Constitutional powers.” Even if the President’s official acts are not “core,” they still enjoy presumptive immunity from prosecution, creating a higher bar for prosecuting official acts.
I disagree with the conservative majority in Trump’s two cases, not because I think the Supreme Court is leaning to Trump’s side or that his policy concerns are frivolous. There are legitimate reasons to worry about wrongful prosecutions and corrupt efforts to remove candidates from the ballot.
The most fundamental reason I disagree with the Supreme Court’s decision is that it is not consistent with the wording of the document that the judges are supposed to interpret, which gives the president a certain degree of autonomy and immunity, which goes against the structure and spirit of the American government. In both of Trump’s cases, the liberal minority was more fundamentalist than the conservative majority. This time, it was the conservatives who created the living Constitution.
