WASHINGTON — In the month since the Supreme Court granted former President Donald Trump substantial immunity from prosecution, a recurring critique of the decision has emerged. Lawyers and scholars say the ruling bears a striking resemblance to Roe v. Wade, the 1973 decision establishing a constitutional right to abortion.
They point to at least four features of the immunity decision that also figured in Roe, which was overturned in 2022 as “egregiously wrong” in a slashing majority opinion from Justice Samuel Alito.
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He wrote that there was nothing in the text of the Constitution about abortion, that the majority had concocted a three-part test for enforcing the right out of whole cloth, that a revision of that three-part test had introduced a vague and unpredictable “undue burden” standard and that the ruling had removed an important question from the legislative process.
“The judicial method employed by Trump v. United States resembles Roe v. Wade in the ways that matter,” Richard D. Bernstein, who filed a supporting brief in the case on behalf of conservative critics of Trump’s legal positions, wrote in a blog post a week after the decision.
In his majority opinion in Dobbs v. Jackson Women’s Health Organization, the decision that overruled Roe, Alito wrote that “the Constitution makes no express reference to a right to obtain an abortion.”
Dissenting in the immunity case, Justice Sonia Sotomayor echoed that observation. “The Constitution’s text,” she wrote, “contains no provision for immunity from criminal prosecution for former presidents.”
In his majority opinion, Chief Justice John Roberts called that argument flawed. “True,” he wrote, “there is no ‘presidential immunity clause’ in the Constitution. But there is no ‘separation of powers clause’ either.”
In addition to establishing a constitutional right to abortion, Roe announced a three-part framework to govern regulations of the procedure, one rooted in the trimesters of pregnancy. “This elaborate scheme was the court’s own brainchild,” Alito wrote in Dobbs.
The immunity decision also created a three-part test for deciding whether former presidents accused of committing crimes while in office may be prosecuted, giving them absolute immunity for core responsibilities set out in the Constitution, at least presumptive immunity for all other official conduct and no immunity for private acts.
The middle category in Roberts’ taxonomy — presumptive immunity — is the most elusive one. It was needed, he wrote, to ensure that the president could “carry out his constitutional duties without undue caution” and “undertake his constitutionally designated functions effectively, free from undue pressures or distortions.”
Those terms — “undue caution” and “undue pressures or distortions” — are reminiscent of the “undue burden” standard established in Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe’s core holding.
In Dobbs, which also overruled Casey, Alito wrote that “the decision provided no clear guidance about the difference between a ‘due’ and an ‘undue” burden.” Dissenting in Casey, Justice Antonin Scalia wrote that “the ultimately standardless nature of the ‘undue burden’ inquiry is a reflection of the underlying fact that the concept has no principled or coherent legal basis.”
Roberts provided some additional guidance in the immunity case, but it too has been the subject of criticism.
“At a minimum,” the chief justice wrote, quoting from Nixon v. Fitzgerald, a 1982 decision providing former presidents with substantial immunity from civil actions, “the president must therefore be immune from prosecution for an official act unless the government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the executive branch.’”
The quotation was truncated, Trevor W. Morrison, a law professor at New York University School of Law and its former dean, pointed out on Lawfare.
“In a move that can only be called brazenly dishonest, Roberts quoted only part of the key sentence in Fitzgerald,” Morrison wrote. This is the full quotation: “A court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the executive branch.”
The partial quotation, Morrison wrote, turned a balancing test into a categorical command.
The Dobbs decision criticized Roe for usurping the authority of legislators. Bernstein, who was a law clerk for Scalia, said in an interview that the immunity decision was vulnerable to the same charge.
“The Trump decision cuts voters and their elected representatives out of the picture much more completely than Roe did,” he said. “Going forward, Congress could not enact even a narrow, specific statute providing that a president lacks any federal criminal immunity for even the most egregious official act — such as using the military domestically to arrest and detain political opponents.”
Stephen R. McAllister, a law professor at the University of Kansas who was a law clerk for Justice Clarence Thomas and the U.S. attorney for Kansas during the Trump administration, filed a supporting brief in the case. The brief, prepared by Erik S. Jaffe, also a former law clerk for Thomas, urged the justices to use conservative principles to rule against Trump.
The effort failed, and McAllister said the chief justice’s majority opinion was a disappointment.
“It’s certainly not really tied to the Constitution,” he said. “A comparison to Roe is not unfair.”
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