A lot has been said so far about the Supreme Court’s recent immunity ruling, which essentially puts the president above the law (more on that here), much of it decrying how it has set a dangerous precedent and threatens the security of our democracy. At the risk of piling on, I am going to add a little more to the outcries, pointing out where exactly the right-wing justices have strayed from the methodology they claim to use to interpret the Constitution.
In Trump v. The United States, the six right-wing justices ruled that the president has absolute immunity from prosecution while carrying out the official duties of the office and presumptive immunity in the “outer perimeter” of official responsibility. For all practical purposes, this places the president above the law and makes the office of the executive far too powerful. There is absolutely no justification for the ruling based on the text of the Constitution, and a clear reading of the document proves that this decision is invalid.
The right-wing justices claim to be “originalists” or “textualists” when it comes to interpreting the Constitution for judicial rulings, but they diverged from that in this case. An originalist works upon the original understanding of the Constitution at the time of adoption, while a textualist focuses on the words of the document and does not consider non-textual sources. There are flaws to both of these approaches, largely because the Constitution has evolved over time, especially after the ratification of the 14th Amendment. But in theory, both approaches should lead to a more conservative (with a small “c”) interpretation of the Constitution that more closely reflects the thinking of the framers of that document.
But Justice Roberts appears to have immediately diverged from this in his ruling when he makes the claim that “The Framers designed the Presidency to provide for a ‘vigorous’ and ‘energetic’ Executive,” as if suggesting that the executive office should have near-absolute authority. He even cites Alexander Hamilton to justify this from Federalist No. 70, even though that author pointed out that the president is subject to prosecution under the law in Federalist No. 69. While the framers certainly wanted a strong executive after the weaker version of that office proved insufficient to govern the country under the Articles of Confederation, they knew the concerns people had about a potential overreach of authority and did everything they could to assure the president under the Constitution would not be the equivalent of an elected monarch.
To further the argument that the justices did not follow originalism or textualism in Trump v. The United States, the ruling also completely throws out the last sentence in Article 1, Section 3 (emphasis mine):
The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.
Why was that last sentence included by the framers if the president has the absolute immunity and presumptive immunity claimed by Roberts? If that immunity existed in the minds of the framers, those words would not have been there. But they are, and the ruling completely ignores the original text of the Constitution.
For this reason, the claims by the right-wing justices that they are originalists and/or textualists are proven false based on the very words found in the Constitution. These ideologies have been controversial anyway, and it is clear that these justices are practicing judicial activism to support a right-wing agenda as also evidenced by their rulings in Dobbs v. Jackson, New York State Rifle & Pistol Association v. Bruen, and more. This is all particularly concerning, seeing as this fits right into the extremist ideology behind Project 2025 and lays the groundwork for that to be enacted if Donald Trump gets back into office.
Justice Sonia Sotomayor delivered a blistering dissent stating that “the President is now a king above the law” as a result of the ruling. She goes on to point out specific examples where the president can abuse the authority of the office and she calls the ruling “utterly indefensible” and states that “the court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding”. She also closes with the strongly worded statement “with fear for our democracy, I dissent”, emphasizing the clear and present danger the ruling represents to our constitutional system.
Democrats are pushing back on this with Senator Dick Durbin (head of the Judiciary Committee) delivering a scathing speech to Congress on the overreaches and conflicts of interest we are seeing from the right-wing Supreme Court justices. He is also opening up a hearing on this which will hopefully lead to some degree of dialing back the power handed to the executive office by an extremely flawed ruling.
But even more importantly, this acts as a Call to Action for the nation. Democrats are taking measures to rein in a Supreme Court that has become untethered from its constitutional (and ethical) responsibilities, but that will take time and will face stiff resistance from an increasingly anti-Democratic Republican party. The upcoming election is crucial, and if Donald Trump returns to power, he has made it quite clear that he will abuse his power and now he has plenty of leeway to do so. Many doubt Joe Biden’s ability to continue in the role of president due to his age, but we are much better off with an elderly executive than a dictator-in-waiting who has been handed broad immunity. We must keep Trump out of office, otherwise this ruling and others put forth by the Supreme Court will give him plenty of traction to destroy our Democracy.