'Originalism is a dead letter': Supreme Court majority accused of abandoning legal principles in Trump immunity ruling

WASHINGTON — The Supreme Court's decision to grant former President Donald Trump absolute immunity for some of his conduct in seeking to overturn the 2020 election has attracted a chorus of criticism from those who saw it as another sign of conservative justices abandoning their own judicial philosophy.

The latest round of brickbats comes after the conservative justices were similarly pilloried for the court's ruling in March saying that Trump could not be kicked off the primary ballot in Colorado over his actions leading up to the Jan. 6 attack on the Capitol.

After both Trump victories, the conservatives on the court faced accusations that they abandoned their commitment to the judicial philosophy known as originalism — which says questions about the Constitution should focus on its original meaning. Certain justices, including Clarence Thomas and Neil Gorsuch in particular, repeatedly stress their reliance on history and tradition when deciding legal questions about whether a law is constitutional.

Most notably, the court has embraced such an approach in rulings that have expanded gun rights in recent years.

"At this point at this Supreme Court, originalism is a dead letter, to be resurrected and employed only when it suits the court's purposes," said Michael Luttig, a conservative former federal judge.

Smita Ghosh, a lawyer at the liberal Constitutional Accountability Center who filed a brief arguing against immunity on historical grounds, said it was surprising that the court did not wrestle with history and tradition as it has done in other contexts.

"For justices who purportedly care about text, history, and tradition, this failure to engage more fully was eye-opening — and profoundly disappointing," she added.

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