Conservative Justices Shouldn’t Set Rules on Trump ‘Immunity’ Case

In last week’s Supreme Court oral arguments regarding former President Donald Trump’s assertion of “total immunity” for acts committed as president, conservative Justices Samuel Alito, Brett Kavanaugh, and Neil Gorsuch each considered questions outside the court’s proper purview.

Except perhaps at the very margins, they should not base their decisions on those questions or the answers thereto.

Alito worried that without immunity for former presidents, “there has to be a trial, and that may involve great expense and it may take up a lot of time, and during the trial, the former president may be unable to engage in other activities that the former president would want to engage in.”

Well, so what? First, this is true of any defendant. That’s the nature of being a defendant: It’s inconvenient, to say the least. Why should a former president be spared the bother? Second and more importantly, why is this even relevant? The issue at hand is not whether a president should, in a logical world, enjoy some form of immunity. The issue is whether a president does enjoy immunity based on anything in the Constitution (or from the decidedly narrow band of principles that are assumed to have been incorporated into the Constitution via preexisting British common law).

Conservatives have always criticized liberal judges for trying to decide what their own sense of right and wrong advises rather than following the actual text of the law. Even if immunity is a good idea, no conservative judge should provide it if the Constitution is silent about it. After all, immunity would be an exception to the ordinary laws of criminal guilt or innocence, so the ordinary laws should apply unless the Constitution provides such an unambiguous exception.

Kavanaugh, meanwhile, was similarly worried about “what if” scenarios that aren’t based on the constitutional text. He asked what would happen if former presidents, as a form of political retribution, regularly began to be prosecuted by their successors so that “it’s going to cycle back and be used against the current president or the next president and the next president and the next president after that.” Granted, that may be a legitimate concern (although if it has happened only once in 228 years of former presidents, the concern may be overblown). Nevertheless, why is it the business of the justices? If such a cycle is a problem, but it is not addressed in the Constitution, then it’s not the job of the Supreme Court to fix it. Instead, it’s a problem that must be fixed either by Congress (if possible) or via a constitutional amendment.

That’s what conservatives always tell liberals: If there’s a problem not fixed by the Constitution, then fix it by amendment — not by legislating from the bench.

Finally, Gorsuch took the same detour from appropriate considerations. “I am concerned,” he said, “about future uses of the criminal law to target political opponents based on accusations about their motives. … We’re writing a rule for the ages.”

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Someone should remind Gorsuch that his job is not to write rules for the ages. His job is to interpret rules already in place. Judges are not meant to be legislators.

Since when did conservative justices adopt consequentialist approaches to jurisprudence? Conservatives have spent at least a half-century criticizing the Left for that habit. Where the Constitution is silent, conservatives say the only proper option is to trust the political, legislative, or amendment processes. Trump’s current conundrum should not obviate that obligation for judicial restraint.