More evidence that the far-right justices have renounced their beloved originalism

The Trump immunity decision has zero textual or original authority for coronating presidents as kings

Photo by Anthony Garand on Unsplash

Last week, the Supreme Court shocked the American people and imperiled our democracy by ruling that presidents have absolute criminal immunity for certain acts and a presumption of absolute immunity from criminal prosecution for other official acts. For those who say this ruling did not put presidents above the law, that somehow criminal liability still exists, bear this in mind: It proceeds from the hypothetical premise that a president has committed a crime. Crimes in the Oval Office. And then it created immunity for that. If the crime wasn’t the prerequisite, there’d be nothing to even talk about. Immunity would be irrelevant because there’d be nothing to immunize.

I joined Steve Inskeep on NPR’s Morning Edition to discuss how this ruling could impact Trump’s other criminal cases.

The majority didn’t give us a definitive test for official versus unofficial acts. It will tell us later. While manufacturing an entirely new provision under Article II of the Constitution, the justices anointed themselves the framers of the new Constitution. This is the complete opposite of what “conservatives” would presumably endorse.

For decades, the Supreme Court has created balancing tests that examine a law's purposes and compare them to the constitutional interests at stake in order to determine the Constitution’s at law meaning in individual cases.

This made logical sense. The Constitution is old, and it’s terse. There are inevitably different interests in play. Without them, there wouldn’t be disputes with briefs on both sides and split decisions on the Court. The justices must decide how to resolve ambiguity. Balancing the public’s interests with an individual plaintiff’s interest is plain common sense.

Yet over the past few decades, conservative justices have leaned into two other “tools” of interpretation to resolve issues related to the United States Constitution: textualism and originalism. Using originalism, the far-right majority claims to be interpreting the Constitution and modern laws based on the meaning of the law’s text at the time it was enacted. And, through textualism, they insist that if it is not explicitly stated in the Constitution of law, it does not exist.

This has shown itself to be a dangerous ruse. The far-right majority has been using textualism and originalism deceptively, leaving many of us wondering if they have all but abandoned the traditional definitions of these tools. It is a smokescreen for an abject power grab by unelected judges. And it has become frightening.