Hey, SCOTUS — your hypocrisy is showing
Thursday was not a good day for American democracy.
Listening to Thursday’s oral arguments in the Donald Trump immunity case was positively surreal.
As is often the case in Supreme Court arguments, while the justices piled one hypothetical on top of another, the real-world stakes in the case were barely mentioned. And while the questions asked at oral argument are not always a reliable predictor of how the court will ultimately come out in any case, Thursday was not a good day for American democracy.
As it has done in other cases, the court’s conservative majority seemed ready to jettison its own originalist interpretive method and to ignore the grave threat that former President Trump’s election denialism — and efforts to block the peaceful transfer of power — posed to our constitutional republic. They displayed a level of hypocrisy, cynicism and bad faith that matched Trump’s own, and seemed to lust for the kind of strong executive that has become a familiar part of the agenda of Trump and his MAGA allies.
One can only hope that the justices will come to their senses when they get around to deciding the case, and will reject Trump’s plea to take the unprecedented step of establishing presidential immunity.
To get a taste of the hypocrisy displayed during the oral argument, let’s start with originalism.
Given the originalist commitments of the court’s conservative majority, you would have thought that the oral argument would have been consumed by an exploration of constitutional history. Yet they said almost nothing about it.
Justice Clarence Thomas opened the door for such an exploration when he asked the first question. Thomas asked John Sauer, Trump’s lawyer, to identify the place in the Constitution from which presidential immunity from criminal prosecution could be derived. Sauer responded that “The source of the immunity is principally rooted in the Executive Vesting Clause of Article II, Section 1.”
“(T)he Executive Vesting Clause,” Sauer continued, “does not include only executive powers laid out explicitly therein but encompasses all the powers that were originally understood to be included therein. And Marbury against Madison itself provides strong evidence of this kind of immunity, a broad principle of immunity that protects the president's official acts from scrutiny.”
He invoked “(T)he wisdom of the Framers. What they viewed as the risk that needed to be guarded against was not the fact — the notion that the president might escape, you know, criminal prosecution for something, you know, sort of very, very unlikely in these unlikely scenarios. They viewed much more likely and much more destructive to the Republic the risk of factional strife discussed by George Washington.”
However, it didn’t take long for Justice Elena Kagan to blow Sauer’s originalist gambit out of the water. Kagan noted that “The Framers did not put an immunity clause into the Constitution. They knew how to. There were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn't provide immunity to the president.”
“And, you know,” she explained, “not so surprising, they were reacting against a monarch who claimed to be above the law. Wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law?”
In response, Sauer first repeated what he said to Thomas. “I would say two things in response to that. Immunity — they did put an immunity clause in in a sense. They put in the Executive Vesting Clause, which was originally understood to — to adopt a broad immunity principle that's set forth in the very broad language of Marbury against Madison.”
Then Sauer added, “(T)hey did discuss and consider what would be the checks on the presidency. And they did not say, oh, we need to have criminal prosecution. Right there at the Constitutional Convention, Benjamin Franklin says, we don't have that. That's not an option. Everybody cried out against that as unconstitutional.“
But Kagan had done the job of exposing the fallacy of appeals to original intent to justify immunizing presidents for crimes they commit while in office. After that, the court’s most fervent originalists had little to say about, or interest in, the question of what those who drafted Article II intended by way of presidential immunity.
In addition to their abandonment of originalism, several of the court’s conservative Justices seemed almost desperate to avoid talking about what Trump actually is alleged to have done after the 2020 election, preferring instead to trot out more hypotheticals and focus on general principles.
In response to a point made by Michael Dreeben, who argued the case for the Special Counsel, about the role of the Justice Department in defining the “core powers of the presidency,” Justice Neil Gorsuch observed, “I'm not concerned about this case so much as future ones. ... And, again, I'm not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.”
But, in this moment, Gorsuch revealed his embrace of Trump’s substantive position: that the real problem was not what the former president did after the 2020 election, but what was being done to him by his “political opponents.” Gorsuch might as well have said that he wants to make sure that future presidential administrations don’t do to former presidents what Trump alleges the Biden administration is doing to him.
Justice Brett Kavanaugh followed Gorsuch’s lead. He too said, “I'm not focused on the here and now of this case. I'm very concerned about the future. “
Then, seemingly from out of nowhere, Kavanaugh denounced the Supreme Court’s 1988 decision in Morrison v. Olson, which upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978. As law professor Steve Vladek notes, “Morrison has long been a lightning rod for conservatives, who have rallied around Justice Antonin Scalia’s fiery and pellucid … solo dissent. And Kavanaugh has repeatedly criticized the decision in his judicial writings.”
Joining Gorsuch in echoing Trump, Kavanaugh directed his questions to the possibility that presidential prosecutions will "cycle back" and be used against future presidents.
Justice Samuel Alito also announced, “I'm not focused on the here and now of this case. I'm very concerned about the future.” Alito conceded that the present case “is immensely important,” but quickly aligned himself with his fellow futurists, saying “whatever we decide is going to apply to all future presidents.”
Alito went out of his way to remind Dreeben of his view that the country could not count on the integrity and professionalism of the Justice Department or of attorneys general to ensure that presidents are not subject to partisan witch hunts after they leave office. “So as for attorneys general,” Alito said, “there have been two who were convicted of criminal offenses while in office. There were others, a Mitchell Palmer is one that comes to mind, who is wildly regarded as having abused the power of his office.”
As The Atlantic’s David Graham explained, “Justice Samuel Alito fretted that if former presidents do not enjoy immunity, they could face the danger of prosecution by their successors, which would pose a challenge to the stability of the republic. In short, Alito was arguing that if Trump is prosecuted for a direct assault on American democracy, it might result in indirect damage to American democracy later on.”
Evoking “Alice in Wonderland,” Graham labelled this a “moment in which the hearing went through the looking glass.”
As last week's parade of hypotheticals illustrated, if the court grants presidents immunity from prosecution for crimes they commit while in office, all of those who value American democracy will, as Graham suggests, find themselves in a world that those who wrote the Constitution could never have imagined.
Austin Sarat is the William Nelson Cromwell Professor Jurisprudence & Political Science at Amherst College.