Supremely Activist

Terry H. Schwadron

April 27, 2024

By any account, the conservative Supreme Court has become what it says it hated — an activist bench. 

Worse, the court showed itself able to tweak the law or its procedures for advantage of the former president who appointed three of its nine members.

Regardless of the pending decision specifics, Thursday’s hearing of claims by Donald Trump for presidential immunity should eliminate all doubt that the court’s conservative wing is creating new law — in this case to push for a redefinition of presidential power.

–Hearing the claim of immunity altogether was a decision that grew out of a perceived need to create law; the lower courts found no precedent for Trump’s claims. It may be that Chief Justice John G. Roberts Jr. felt that the Court of Appeals decision finding no grounds for immunity was insufficiently grounded legally.

–Redefining the question from considerations about the specific charges against Trump around plots and schemes leading to the Jan. 6, 2021, attempted insurrection guaranteed that there would be law beyond what little is said about immunity in the Constitution.

–Questioning from the most conservative justices it was obvious even to lay listeners that several justices were intent on serving as a super-legislature. Justice Neil A. Gorsuch waved away attempts to limit any ruling to the specifics of the federal criminal charges against Trump, saying that the pending ruling “is one for the ages.”

The decision to look beyond the current criminal case against Trump ignored the urgency of the election and took advantage of procedural aspects of the law seemingly in Trump’s favor. Justices Samuel Alito, Brett Kavanaugh and Gorsuch all waved away arguments that sought to tie specifics about immunity to the pending Trump trial.

Practical Partisan Victory
There was no question that the hearing underscored a practical victory for Trump, who wants to delay the trial until after the election — and then appoint an attorney general who will drop the case. The justices do not always need to rule in favor of a conservative result but reach a partisan outcome simply by manipulating their own calendar.

Because of the timing of the decision and the apparent desire to require lower court proceedings to review what is “official,” core, and apparently immunized presidential actions from those that are not done with public authority effectively will mean there will be no trial before November elections.

But the questions from the justice told a story of presidential immunity that would create barriers in the future to threaten a reelected Trump from accountability for violating the law. In effect, as Justice Ketanji Brown Jackson said, the arguments for even limited immunity would reflect an invitation for presidential misdeeds.

In addition, the decision by Justice Clarence Thomas against recusing himself from review of a case in which his wife, Ginny Thomas, had a role as advisor in the efforts to undercut the 2020 election, was itself a violation of the court’s ethics standards — and was not a point of challenge.

Since 2020, the conservative majority has built a record of overturning its own precedents, of ignoring public sentiment, of undercutting the power of the federal government, and of ruling in favor of partisan cases that together describe a court that says it is acting as referee, but really is creating new law for abortion, immigration, environment, guns, and other contentious areas.

Judicial activism is a philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used to argue against textualism and restraint.

As an article in The Bulwark argues, conservative legal theory over the last two generations has been marked by a belief in originalism and textualism, that judges should not make policy, that court decisions should be as narrow as possible, and, when possible, should defer to the will of voters — a theory that turns out to be a lie.

If it were not already clear, this immunity case has put the court into the activist column despite what the court says it is doing.

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