Original Content

Rich Bernstein: Trump v. United States is the new Roe v. Wade

July 7, 2024

Richard Bernstein is a Charter Member of the Society for the Rule of Law. He is a partner at Willkie Farr & Gallagher and a former partner at Sidley Austin. He clerked for Justice Antonin Scalia from 1987-88 and Judge Amalya Kearse from 1986-87.

On its face, the judicial method employed by Trump v. United States resembles Roe v. Wade in the ways that matter. Like Roe, the Trump majority explicitly relies on its views of wise policy. For example, the Trump majority invents immunities “to enable the President to carry out his constitutional duties without undue caution.” The Roe test eventually became “undue burden.” Both decisions support their policy pronouncements with one-sided snippets from prior cases that are readily distinguishable both factually and contextually.

Both decisions give one-sided descriptions of the policy considerations. The Trump majority thus worries about tit-for-tat prosecutions from successive administrations, but does not even rebut the dissent’s demonstration that immunity incentivizes all manner of future official presidential acts that constitute federal criminal conduct, including “[o]rganiz[ing] a military coup to hold onto power.” Both the Trump majority and Roe even announce a tri-partite division of rules going forward, just as a statute would. And so, we have gone from judge-made policies for three trimesters to judge-made policies for three buckets of presidential immunity issues. Missing from Trump, as in Roe, is any consideration of whether it is the politically-unaccountable Court that has the power to make policy in this area rather than the political branches that the voters elect and can replace.

Concomitantly, missing from the Trump majority, like Roe, is any serious engagement with the text of the Constitution and its history. The text of the Constitution gives Congress, not the Court, the power through legislation to create immunities for the Executive Branch. First, the Speech and Debate Clause creates constitutional immunities but only for the Legislative Branch. Second, the Necessary and Proper Clause empowers Congress to make “[a]ll Laws which shall be necessary and proper for carrying into Execution the foregoing [i.e., legislative] Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” (Emphasis added.) This gives Congress the power to legislate whatever immunities to ensure a bold and vigorous Executive Branch—which is part of the “Government of the United States”—that Congress sees fit. And Congress has created certain Executive Branch immunities, but never from federal criminal prosecution.

The Trump majority also ignored that the very Section of the Constitution that governs presidential elections—Section I of Article II—omits the President from any official role in determining the results. Those roles are given to the States, Congress, and (minimally) the Vice President. The Twelfth Amendment reiterates this omission of the President.

As for history, the Trump majority notes that the framers had fought a revolution to rid themselves of a King immune from prosecution, but does not square this with the broad immunities the majority creates. Article II states that the President “shall take care that the laws be faithfully executed.” This envisioned a President who was vigorous and law-abiding. It is the Trump majority, not the framers, who made the policy choice to create broad presidential immunities that embolden both vigor and law-breaking.

The Trump majority should have seen all the resemblances to Roe. To start, they are all brilliant lawyers and they had just overruled Roe a mere two years before. And a conservative’s conservative, Erik Jaffe, a former clerk for Justice Thomas, wrote a clear, concise amicus brief that laid out the critical similarities between the judicial policymaking that the Court rejected when it overruled Roe and the policy-driven approach that the Court now subsequently has adopted in Trump.

Yet the Trump majority made no attempt to explain how its policy-driven method was different from the kind of method that Roe had used. Nor could it. If judges should not use the term “liberty” in the Fifth and Fourteenth Amendments to constitutionalize their policy preferences, then they also should not use the separation of powers to constitutionalize their policy preferences.

For now, as a result of the Trump decision, the promise of real originalism and textualism is in a coma. That promise was of a kind of judging in constitutional cases that was never driven by the policy preferences of the judges. Of course, this Court’s majority will selectively employ originalist and textualist arguments when they support the majority’s decision in a particular constitutional case. But Trump v. United States shows that when push comes to shove in important constitutional cases, the strong policy preferences of the Court’s majority will prevail over textual and historical analysis.

Justice Gorsuch stated at oral argument that “we’re writing a rule for the ages.” Maybe not. So long as we have elections, the voters will elect both new Presidents to nominate new Justices and new Senators to confirm them. The history of this country shows that the electoral pendulum has many swings, the Court’s majority eventually changes, and policy-driven decisions regularly are overruled. No one writes policy-driven rules that last forever.

To be sure, it takes time for the Court’s membership to change and a decision to be overruled. That adds to the flaws of the Supreme Court’s use of constitutional law to arrogate policy decisions from the political branches to itself. When experience proves that there was an unwise important policy decision by the Executive Branch or Congress, the voters at a subsequent election can toss out incumbents and change the policy. And if incumbents see this coming, they can change course even before an electoral defeat. Not so when a Supreme Court’s majority enshrines its policy preferences in constitutional law decisions. Because those Justices are never accountable to the voters, they can cling to their policy mistakes for much longer.

If and when a case arises and there is a different-minded majority, however, Trump v. United States will and should be overruled. Perhaps the majority that would overrule Trump v. United States will contain liberal Justices who would read their own policy preferences into the Constitution in other cases. Better would be a different kind of majority that reads neither the liberal nor the conservative policy preferences of Justices into the Constitution. Such a majority would end all the misuses of constitutional adjudication as a vehicle for judicial legislation. Such a majority instead would fulfill the command of the Constitution under which it is for the voters and their elected representatives to make policy—not for the ages, but for now, until the voters decide otherwise. We live in hope.