Rule of Law

Where’d All the Supreme Court’s Originalists Go for the Trump Cases?

In recent years, the Supreme Court’s conservative supermajority has repeatedly insisted that in America, text and history are king and courts, above all else, have to treat the Constitution’s original meaning as sacrosanct. In cases like Dobbs v. Jackson Women’s Health OrganizationNew York State Rifle & Pistol Association v. Bruen, and Students for Fair Admissions v. Harvard College, the court’s conservatives insisted that constitutional text and history required them to strip away basic fundamental rights to bodily integrity and control, leave the American people less secure from gun violence, and strike down efforts to ensure meaningful equality, even as they ignored key parts of our constitutional arc of progress. This term, the originalist rhetoric continued, even as the justices delivered wildly atextual and ahistorical rulings in some of their biggest cases. This is a deeply right-wing court, but given all the ways it has done violence to the Constitution’s text, history, and values, it’s hard to call it an originalist one.

Take the Supreme Court’s two huge cases about former President Donald Trump, democracy, and accountability. In Trump v. United States, Chief Justice John Roberts, writing for the court’s conservative bloc, supercharged the power of the office, inventing a sweeping form of presidential immunity from criminal prosecution based on a supposition that the possibility of criminal prosecution would dampen the energetic discharge of duties required of the president. Justice Sonia Sotomayor’s powerful dissent captured Roberts’ constitutional betrayal: “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.” The founding-era history cataloged in Sotomayor’s dissent included quote after quote making plain that the president could be criminally punished in court for breaking the law. Accountability, to the Framers, marked the difference between a president and a king.

In Trump v. Anderson, the Supreme Court gutted a key part of the 14th Amendment aimed at making our democracy safe from treasonous federal officers, overturning a state court’s determination that Trump was disqualified from appearing on the Colorado Republican primary ballot because of his role in inciting the Jan. 6 insurrection. Section 3 of the 14th Amendment was written in broad terms to ensure that officeholders who engaged in insurrection against our country could not again hold office. But rather than enforce the text’s sweeping disqualification, the court fabricated a rule that states could not enforce Section 3 against federal officers. Nothing in the 14th Amendment says this, and it flies in the face of the fact that the amendment’s commands are self-executing and enforceable in federal and state courts without prior congressional action. Trump v. Anderson produced a deeply unprincipled special rule applicable to Section 3 alone, seemingly designed to stop efforts to hold the former president accountable for his actions in fomenting an insurrection to overturn the results of the 2020 election.

Text and history provided answers in each of these cases, but the court’s conservatives didn’t like the answers they provided. So, instead, for both, the court’s conservative so-called originalists signed on to rulings that ignored the plain import of text and history. How can one call this court originalist when it is so transparently selective in its application of constitutional text and history? This term showed conclusively that the court is dominated by a results-oriented right-wing supermajority that aims to bend the law toward conservative ends, often at the expense of text and history.

This results-oriented judging was perhaps most on display this term in the context of attacks on the administrative state. At the same time the conservative supermajority was insisting on eliminating checks on the president to ensure an energetic executive, it was ushering in a stunning contraction in the power of executive-branch agencies. In Loper Bright Enterprises v. RaimondoSEC v. JarkesyOhio v. EPA, and Corner Post v. Board of Governors, the court’s conservatives took major whacks at the administrative state, eliminating the long-standing role of agencies in acting, pursuant to congressional delegations of power, to fill statutory gaps; curbing the power of agencies to adjudicate violations of federal law; making it easier to challenge agency action as arbitrary and capricious; and rewriting federal law to allow regulated entities to bring challenges to agency action whenever they so desire.

A small number of cases that placed text-and-history arguments before the justices resulted in real originalist outcomes. For instance, in CFPB v. Community Financial Services Association, the court upheld the CFPB’s funding structure and produced a powerful originalist affirmation that Congress has broad powers to choose how to fund administrative agencies to help execute federal law. But the overriding theme of the term was the court’s aggrandizement of judicial power at the expense of agencies charged by Congress with the job of protecting the American people from harm. These rulings will embolden corporations and conservative litigants seeking to curtail the power of agencies to protect the air we breathe, limit abuse of power in the workplace, and ensure some measure of economic security.

What drives these results? Certainly not constitutional text, history, or values. Our Constitution’s authors did not expect the president to go it alone; they knew that enforcing federal law would require an executive apparatus. Throughout the full sweep of our history, from the founding to Reconstruction to the modern era, federal agencies have played a key role in enforcing national law and protecting the health, safety, and well-being of the American people. Those in the conservative supermajority, deeply hostile to the work agencies do, seem intent on disregarding the role agencies have long played in our system of checks and balances and arrogating ever more power to themselves.

In other areas, the court backed away from a strict reading of some of its most troubling recent rulings. Two years ago, conservatives turned constitutional law upside down in the name of “history and tradition.” This phrase was at the center of Dobbs, the case that eliminated the right to abortion, and Bruen, which announced that gun laws were constitutional only if they had founding-era equivalents. Bruen never explained why gun laws circa 1789 were hardwired into the Second Amendment, and its strict test caused chaos in the lower courts and resulted in the invalidation of a host of federal and state gun laws, including, in the Rahimi case, the federal ban on possession of a firearm by a person subject to a domestic-violence restraining order.

In United States v. Rahimi, by an 8–1 vote, the Supreme Court upheld the federal law, reasoning that “when an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” Even more importantly, the court took a step away from Bruen’s strict test. As Roberts stressed, the Second Amendment does not “trap[] in amber” the gun regulations of the founding era, when weapons were not as dangerous as they are today. Legislatures do not have to dig through the archives for a founding-era historical twin before acting to stem the scourge of gun violence. What matters is the principle underlying historical gun regulations.

Rahimi is a notable improvement over Bruen, but the fact remains that Rahimi did not dislodge Bruen’s flawed historical framework. Going forward, courts will continue to wrestle with the gun laws of the founding era to tease out the principle underlying those regulations. The court has yet to explain satisfactorily why the contours of the individual right to bear arms should turn on the gun-safety laws adopted centuries ago. Justice Amy Coney Barrett, in a number of separate concurrences this term, recognized the problem. In an important free-speech case, she observed that “tradition is not an end in itself” and questioned whether “hunting for historical forebears on a restriction-by-restriction basis is the right way” to vindicate a constitutional right. In Rahimi, she argued that courts have no warrant to “assume[] that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority.” The question going forward is whether her views will shape the gun cases that seem likely to become a regular feature of the court’s docket in the coming years.

This term, the court’s conservative justices wrote long paeans to the idea that text and history is the only legitimate form of constitutional interpretation. But scratch beneath the surface, and the pretense that originalism is what consistently drives this court’s conservative bloc falls apart. Supporters of an imperial, unaccountable presidency, enfeebled agencies, and a hobbled democracy may like this term’s results, but they have no grounding in our Constitution’s text and history. The conservative supermajority aims to radically reshape American law in a multitude of ways, as shown by the seismic jolts to the legal system over the past three terms. Increasingly, these justices are willing to jettison text and history to get there.