“It sure ain’t originalism,” one critic said.
Diana Neary of Minneapolis, joins other protesters demonstrating outside the Supreme Court as the justices hear arguments over whether former President Donald Trump is immune from prosecution in a case charging him with plotting to overturn the results of the 2020 presidential election, in Washington on April 25, 2024. | J. Scott Applewhite/APThe Supreme Court’s conservatives often accuse liberals of inventing provisions nowhere to be found in the Constitution.
From left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas and Chief Justice of the United States John Roberts hear arguments. | Dana Verkouteren/AP “I think we are all textualists now,” Kagan told an audience at Harvard Law School then, as she delivered, arguably the lead crusader for the text-based approach.
“There is no immunity that is in the Constitution, unless this Court creates it,” Dreeben declared. “There certainly is no textual immunity. … I think it would be a sea change to announce a sweeping rule of immunity that no president has had or has needed.” A prominent Supreme Court critic, Georgia State University law professor Eric Segall, said there’s nothing intrinsically wrong with the justices reaching a legal conclusion that lacks direct support in the Constitution. But he said the members of the nation’s highest court should not pretend that, in doing so, they are simply engaged in a mechanistic application of legal text.
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