The conservative justices on the Roberts Court consistently lecture the American people about the importance of text, history, and tradition to constitutional litigation. They use the term originalism as a catch-all phrase for their alleged focus on prior law. They want the American people to believe that their preferred outcomes are based on legal sources external to their own ideological preferences.
As the Court starts the new term, however, we can see from last year’s important cases that the justices’ alleged commitments to originalism are illusory. Election concerns and pragmatic factors drove the Court’s important decisions not any open-minded journey through our Constitution’s text, history, and traditions. That pattern is always true no matter which political party controls the Court. But the liberal justices do not pretend they can fill the open spaces of constitutional law with answers derived exclusively from text, history, and tradition.
As a matter of governmental transparency and rule of law values, the justices should justify their country-defining decisions with reference to their values, politics, and experiences and not pretend that text, history, and tradition are the drivers of the results they reach. Last term’s cases starkly and dangerously illustrate the disconnect between how the Roberts Courts describes the methods they use to solve hard issues and the actual factors generating those decisions. A summary of those cases and their context demonstrates that politics not law were at the forefront of the justices’ considerations.
Abortion
Donald Trump’s and J.D. Vance’s meandering and changing statements about abortion reflect GOP awareness that they are on the wrong side of this issue in a post-Dobbs world. According to Whit Ayres, a GOP pollster and consultant, “when you’re talking about abortion, you’re playing on the Democrats’ turf just like when you’re talking about immigration and inflation, you’re playing on Republicans’ turf.”
The conservative justices understood the politics of the moment so were also “loath” to talk about abortion last term, just like the leaders of the Republican Party. That concern resulted in the Court’s dismissal on procedural and standing grounds of two huge cases because the justices were wary about issuing anti-choice opinions five months before a monumental election. The cases were dismissed prior to the justices’ reaching the merits, so it is likely both, one involving a suit by anti-choice doctors to make abortion drugs much harder if not impossible for women to obtain, and one dealing with emergency room procedures during difficult pregnancies, will return to the Court, but not in an election year.
Trump Cases
The dismissal of the abortion decisions, admittedly, is one step removed from cases directly impacting elections, although the effects of those two cases, had they been decided differently, would have hurt the GOP in November. The two Trump cases the Court heard this term demonstrated how much the six conservative justices were focused on the upcoming presidential election not text, history, or tradition.
Section 3 of the Fourteenth Amendment forbids any person “who having taken an oath . . . to support the Constitution . . . shall have engaged in insurrection or rebellion” from holding “any office, civil or military, under the United States, or under any State.” Two conservative scholars—Professors William Baude and Michael Stokes Paulsen—wrote an important article arguing that President Donald Trump is disqualified from seeking the Presidency because of his involvement in the January 6, 2021, attack on the Capitol. Subsequently, the Colorado Supreme Court agreed and ruled that Trump could not be on the Colorado ballot.
In a unanimous and fast-tracked ruling, the Court held that states have no jurisdiction to disqualify a President under Section 3, at least absent a federal law authorizing them to do so. The justices knew that Congress would not pass such an authorization, and the disqualification issue vanished from the scene, certainly helping Trump.
Why did the liberal justices go along, even if they disagreed about the breadth of the opinion? They knew that red states were not going to disqualify Trump, that they were out-voted anyway, and they were likely scared of future disqualifications of Democratic candidates by red states.
But the most important aspects of this case were the Court’s speedy resolution of the controversy and the complete absence of any serious discussion of text, history, and tradition. Instead, the justices focused on pragmatic and prudential concerns. When originalism does not align with the conservative justices’ values and politics, the Roberts Court consistently minimizes or ignores text, history, and tradition.
The second Trump case, involving the President’s immunity from criminal prosecution after he leaves office, was characterized by one noted commentator as the legal nadir of the Roberts Court, putting the President “above the law.” There can be little doubt that the result and the timing of the decision was designed to help the former President. They made Trump’s prosecutions as difficult and as delayed as possible.
The Court created three buckets of Presidential conduct. For core constitutional functions, such as the President’s pardon power, he possesses immunity. For acts taken pursuant to congressional authority, he has presumptive immunity. For unofficial conduct, he has no immunity.
This approach is reasonable and had the Court stopped there, the lower courts would have had to figure out in which bucket Trump’s efforts to steal the election belonged. But the Roberts opinion (with the liberals dissenting) went much further and held that, when judges try to figure out the relevant buckets, evidence of motive, other official acts, and discussions with top advisors cannot be considered by the courts. Pursuant to those gratuitous add-ons without any basis in text, history, or tradition, Presidents are now effectively immune for acts taken while they were President, no matter how criminal.
The Court’s fast-tracking of the disqualification case way back in February combined with their delay of the immunity case and its eventual holding (on the last day of the term) insured that Donald Trump would be on the ballot in November and that the pending criminal case against him brought by Jack Smith would not be concluded by the election, and that the disqualification question would not affect the election.
No constitutional text provides immunity for the President, the Court barely glanced at history, and the entire decision reads like living constitutionalism on steroids. In both the immunity and the disqualification cases, the justices barely glanced at the law and decided based on other concerns, mostly about the upcoming election. They acted exactly as one would expect Republican politicians to act.
Second Amendment
And then there were guns. Two years ago, the Court decided New York State Rifle & Pistol, Inc. v. Bruen, in which the Court overturned a 1911 New York law requiring a special license to openly carry a firearm and issued a new and bizarre analysis that has caused chaos and confusion in the lower courts. Part of the chaos included an unhinged Fifth Circuit decision invalidating a federal law disarming people who are under domestic relations protective orders. The defendant had a history of violent threats, including against the girlfriend who was the subject of the order.
The Court could not affirm that madness shortly before the election. Such a holding would have been a complete disaster at the polls, especially among women who are much too often the victims of domestic violence. Thus, in Rahimi v. United States, the Court reversed the Fifth Circuit and said the defendant in the case could be constitutionally prohibited from owning a gun. Only Justice Thomas dissented.
The Roberts Court used the issues of abortion, guns, Presidential immunity, and Trump’s potential disqualification to protect Republican politicians running for office. Text, history, and tradition simply did not matter to the originalists in these cases. Although the justices often hide behind legalese instead of the real drivers of their judgments, last term was one of the worst measured by pure hypocrisy. The conservative justices should stop pretending their important constitutional law decisions flow from legal sources or their originalism. They do not. The justices hiding that reality is a gross affront to transparency and the rule of law.
Eric J. Segall is the Ashe Family Chair Professor of Law at Georgia State University’s College of Law. He specializes in Constitutional Law, Civil Liberties, Legislation, and Administrative Law.
