As the Supreme Court’s most renowned originalist-textualist member, Justice Clarence Thomas has a chance in the case of Trump v. United States to definitively refute the liberal media’s claim that the court is just another realm of tawdry politics.
The unfair media narrative is that at least five of the six Republican appointees on the court are virtually puppets of shadowy right-wing overlords, hellbent on reaching results that will advance corrupt or extremist right-wing political interests. The media’s vindictive myth about Thomas, in particular, is that not only is he dishonestly beholden to the Right in general, but that because his wife, Virginia, is an activist supporter of former President Donald Trump supporter, Thomas himself must be uniquely in hock to the Great Orange Billionaire.
In the case argued before the high court last week, Trump claims he enjoys “absolute immunity” from prosecution for almost any action he takes while president, or at least as long as he can claim that — in some vague way, shape, or form — the action is somehow within an almost limitless purview of presidential authority. Already infamously, Trump’s lawyer John Sauer, in answer to a question from Justice Sonia Sotomayor, said that it “could well be an official act” for a president to order the assassination of a political rival.
Notwithstanding the answer to that extreme hypothetical, most analysts seem to think, based on the questions during oral arguments, that Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh are leaning toward accepting much of Trump’s claim. In other words, they would recognize wide latitude for president immunity. Analysts likewise think Chief Justice John Roberts leans in that general direction. The strange thing, though, is that there seems to be an unquestioned assumption that Thomas does the same.
Yet as I noted in an earlier column, it was Thomas who seemed puzzled by where exactly in the Constitution this immunity arises. As well he should be. The text of the Constitution doesn’t explicitly mention any sort of presidential shield, even though it specifically does provide to Congress an immunity from arrest while “going to and returning from” congressional sessions and immunity for anything that directly involves “speech or debate” in either congressional chamber. If the Constitution’s authors wanted to grant forms of immunity to the president, they certainly knew how to do it. Yet they didn’t.
Sauer said that claims of presidential immunity instead rest inherently in executive power in general, which, according to the first clause of Article II of the Constitution, is “vested” in the president.
Well, perhaps, by the very nature of executive power and by long-standing American tradition, at least some hurdles do stand, implicitly if not explicitly, between prosecutors and presidents or ex-presidents. Still, one of the great complaints conservatives usually make about left-wing jurisprudence is that it reads immense leeway into two supposedly “elastic clauses” of the Constitution. One such clause gives Congress all powers “necessary and proper” to carry out other, more explicit duties, and the other prohibits states from depriving individuals of life, liberty, or property without “due process of law.” Conservatives correctly argue that the leeway in those clauses is not so elastic, much less near-infinitely stretchable.
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Yet the immunity Trump and Sauer are claiming would assume that the clause “vesting” power in the president is even more elastic, far more, than anything the Left has yet tried to sneak into the “necessary and proper” or “due process” clauses. It just is not in the Constitution’s text. Nor, despite a lot of foofaraws in Trump’s pleadings, is anywhere close to massive immunity part of the “original public understanding” of presidential prerogatives.
Thomas, the originalist-textualist that he is, should look askance at claims of such a scope of non-textual immunity. And if he rules largely against Trump, he also would be leaving his liberal critics gobsmacked — unable, indeed, to mentally process such a refutation of their meretricious narrative that Thomas is guided by politics rather than by principled fealty to the written law.
