05 July 2024

Trump v. United States as Roe v. Wade

For half a century, conservatives complained to anyone who would listen that the Supreme Court’s decision protecting abortion rights in Roe v. Wade (1973) was “egregiously” wrong. The Constitution, they shouted in party platforms, on the campaign trail, and in law reviews, does not mention abortion, the authors of the Fourteenth Amendment did not intend to protect abortion, and Americans did not consider abortion a right when the Fourteenth Amendment was framed. Roe, they continued, confused discrete textual protections for some rights related to privacy with a constitutional commitment to privacy rights generally that is nowhere mentioned in the Constitution. Roe’s majority opinion supposedly dramatically overextended dubious precedents protecting other privacy rights when protecting abortion under that umbrella and invented three legal categories of pregnancy when putting in place a regulatory scheme that smacked more of legislation than constitutional law.

Two years after overruling Roe, the Roberts Court’s conservative super-majority justified limiting the capacity of the American people to bring Donald Trump to justice for numerous crimes by employing the very legal technique they condemned when employed to advance women’s reproductive rights. Trump, Trump rules, is largely immune from criminal prosecution, even though the Constitution does not mention presidential immunity, no person responsible for any constitutional provision intended to grant immunity from the criminal law to the president, and no evidence exists that Americans living in 1787 thought presidents enjoyed criminal immunity. Trump confuses particular constitutional practices that facilitate some separation between the different branches of the national government with a constitutional commitment to the separation of powers generally that is nowhere mentioned in the Constitution. The majority opinion dramatically overextends dubious precedents immunizing presidents from civil liability to encompass criminal liability and invented three categories of presidential action when putting in place a regulatory scheme that, coincidentally, smacks more of legislation than constitutional law.

Abandoning Originalism and Textualism

Trump v. United States stands accused under the first charge conservatives level against Roe v. Wade, that neither the constitutional text nor constitutional history sanction the right in question. The Constitution does not mention presidential immunity. The framers who considered that issue in the late eighteenth century uniformly agreed that presidents who broke the law should be prosecuted and, if found guilty, punished. The best response the Chief Justice could make to the evidence the dissents presented that the founding generation rejected presidential immunity was to observe that many of the quotations cited asserted that no federal officer was above the law and made no particular reference to the president. By the same logic references to federal justices in the framing and ratification debates may not refer to the justices on the Supreme Court or the Chief Justice of the United States.


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Embracing/Elevating Unenumerated Rights and Principles

The majority opinion in Trump v. United States also stands accused under the second charge conservatives level against Roe v. Wade. The decision confuses particular constitutional provisions that entrench a discrete aspect of a more general principle the Constitution refrains from enumerating with a constitutional commitment to protecting anything that might conceivably fall under such an unenumerated principle. Conservatives celebrate Justice Hugo Black’s dissent in Griswold v. Connecticut (1965) for pointing out that discrete constitutional protections for privacy do not justify protecting privacy rights that are not mentioned in the Constitution. Yet Roberts in Trump claimed that constitutional texts that provided some separation of the presidency from Congress justified additional protections for the separation of powers that the framers self-consciously chose not to put in the Constitution. To paraphrase the passage in the Black dissent that was formerly conservative gospel, “I like [the separation of powers] as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”

The Unjustifiable Expansion of Precedents

The Roberts Court stands accused under the third charge conservatives level against Roe v. Wade, that the decision unjustifiably expanded past precedents with dubious constitutional foundations. Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization (2022), the case that overruled Roe, insisted that past judicial decisions protecting rights to marriage and contraception had no bearing on abortion because only the latter concerned taking an unborn life. The precedential connection between Trump and past legal decisions is far more tenuous. Chief Justice Roberts insisted that decisions holding that a president could not be sued in a civil proceeding for illegally firing a subordinate entailed that the president could not be criminally punished for employing core presidential powers to stage a coup d’état. As the dissent pointed out, this ignores that the precedents in question explicitly maintained a distinction between civil and criminal liability. Furthermore, it emphasized that the public interest in preventing a coup overthrowing constitutional democracy is far greater than the interest of a private litigant in obtaining damages for an injury.

Judicial Legislation

The Roberts Court stands accused under the fourth charge conservatives level against Roe v. Wade, that the tribunal’s implementation scheme is legislative rather than judicial.  Roberts’ tripart division of presidential actions into core presidential powers, peripheral presidential powers, and private actions has no more basis in the Constitution than the Roe Court’s tripart division of abortion regulation into three trimesters. Indeed, the Roberts Court’s scheme is far more difficult to implement than the Roe Court’s scheme. The gerrymandered division of powers in Trump is unworkable, particularly when compared to the regulatory scheme in place for abortion immediately after Roe. In virtually all abortion cases from 1973 until 1992, courts were able to determine whether a woman was asking for an abortion in the first, second, or third trimester of pregnancy. Whether a fetus is viable, the test after 1992, is only controversial for a week or two during the forty weeks of a pregnancy. Discerning what actions fall into what categories of presidential powers is nearly impossible. Consider a president who commands the military to murder a romantic rival. Is that an example of the president abusing a core political power, a peripheral presidential power, or a private power? As the dissents note, the majority provides no clear instance of presidential actions that are not immune from punishment. Commentators are now disputing whether Richard Nixon was immune from punishment for his role in Watergate.


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Methodological Hypocrisy

The Roberts Court stands accused under a fifth charge to which Roe v. Wade is entirely innocent: methodological hypocrisy. The progressive and moderate conservative justices who provided constitutional protections for abortion rights believed the Constitution was best interpreted consistently with changing political and social circumstances. Women who most Americans by the late twentieth century understood to be equal citizens might have a constitutional right to terminate a pregnancy safely even though women who most Americans in the nineteenth century expected to be wives and mothers had no right to an often-dangerous abortion. The progressive justices on the Roberts Court applied the same living constitutional principles in Trump. Distant history was not dispositive. Trump’s fate was not sealed by evidence that the framers in the late eighteenth century rejected presidential criminal immunity as necessary for the separation of powers. Rather, both Justice Sonya Sotomayor and Justice Ketanji Brown Jackson in their dissenting opinions detailed why no intervening political change had occurred in the past two-hundred and fifty years that made presidential criminal immunity a vital means for maintaining the separation of powers today.

The justices in the majority in Trump had repeatedly described as illegitimate and egregious claims that constitutional provisions ought to be interpreted consistently with changing political and social circumstances.  When progressive advocates asked the Court to declare bans on abortion unconstitutional and sustain restrictions on concealed weapons, the conservative justices maintained that understandings in 1791 and, for that matter, the thirteenth century were far more relevant to constitutional decision making than the circumstances of the present. Yet suddenly, the needs of contemporary presidents became relevant when Donald Trump became the subject of a criminal indictment. The Roberts Court, the evidence suggests, has no good principle for determining when the thirteenth century, 1787, 1868 and 2024 matter for constitutional adjudication, other than the differing political beneficiaries of its decisions.

Lady Justice lost her Blindfold

The conjunction of Roe v. Wade and Trump v. United States raises an interesting problem.  Suppose a president procures for a woman he impregnated an abortion in a state where terminating a pregnancy is illegal. The president claims that the abortion was necessary because having a child would interfere with his exercise of core executive functions and, besides, the seduction occurred as part of that president’s attempt to induce the woman to support his official policies. Which principles govern? Those that Republicans advance when condemning Roe or those they endorse when celebrating Trump? Judging by the Roberts Court’s recent decisions, the probable answer depends on whether the offending president is a Republican or a Democrat.


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