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.
