Hey, SCOTUS — your hypocrisy is showing 

Listening to Thursday’s oral arguments in Donald Trump’s immunity case was completely surreal.

as This is common in Supreme Court arguments., while the judges pile up hypothesis after hypothesis, little is said about the real-world stakes in the case. And while questions were asked during oral argument, Not necessarily a reliable predictor Regardless of what the court ultimately rules, Thursday was not a good day for American democracy.

As is I’ve done it in other cases tooThe court’s conservative majority appeared ready to abandon its originalist interpretation and ignore former President Trump’s grave threat. Election denialism – and Efforts to prevent a peaceful transfer of power — brought against our constitutional republic. They displayed a level of hypocrisy, cynicism, and malice. Consistent with President Trump’s And he seemed to admire such a strong manager. It’s become a familiar part On the agenda of Trump and his MAGA allies.

We can only hope that the justices come to their senses in deciding this case and reject President Trump’s plea to take the unprecedented step of establishing presidential immunity.

Let’s start with originality to get a taste of the hypocrisy on display during oral argument.

Given the Originalist’s obsession The court’s conservative majority would have expected oral arguments to be spent exploring constitutional history. But they said little about it.

Justice Clarence Thomas opened the door to such exploration. asked the first question. Thomas asked Trump’s lawyer, John Sauer, to identify where in the Constitution the president’s immunity from criminal prosecution comes from. Sauer replied, “The basis for immunity is primarily rooted in the clause granting executive power in Article 2, Section 1.”

Sauer continued, “An administrative vesting clause includes not only the executive powers expressly provided for in it, but all powers originally understood to be included therein. ” And Mr. Marbury’s conduct toward Madison itself provides strong evidence of this kind of immunity, a broad principle of immunity that protects the official conduct of the president from scrutiny. ”

He “invoked the wisdom of the Framers. What they saw as a risk that they needed to be wary of was not a fact. The idea that the president might be able to escape criminal prosecution for something… In such an unlikely scenario, they argue that the risk of sectarian conflict, discussed by George Washington, is more likely and more destructive to the republic. I was thinking.”

But it didn’t take long for Justice Elena Kagan to defeat Sauer’s originalist gambit. Kagan said, “The framers didn’t put immunity clauses in the Constitution. They knew how to do it. Some state constitutions had immunity clauses. They knew how to give legislative immunity. They didn’t give the president immunity.”

“And, you know, not too surprisingly, they were reacting to a monarch who claims to be above the law. The bottom line is that the president is not a monarch, and the president is above the law. Doesn’t that mean it shouldn’t be transcended?”

In response, Sauer first repeated what he had told Thomas. “I would say two things to that. Immunity — They put in a waiver clause in a sense. They introduced an administrative vesting clause, which was initially was understood to adopt a broad principle of immunity set out in broad terms.

Sauer added: “They discussed and considered how to check the office of the president.” And they didn’t say, “Oh, we need criminal prosecution.” Right there at the Constitutional Convention, Benjamin Franklin said, “We don’t have that.” That’s not an option. Everyone shouted that it was unconstitutional. ”

But Kagan has done her job in debunking the appeal’s original intent to justify immunity for crimes committed by the president while in office. After that, the court’s most ardent originalists had little say or interest in the question of what the authors of Article II intended by executive privilege.

In addition to abandoning originalism, some of the court’s conservative justices seemed mostly willing to avoid talking about what Trump actually allegedly did after the 2020 election. Instead, I prefer to bring in more assumptions and focus on general principles..

In response to Michael Dreeben, who defended the special counsel’s case, pointing out the Justice Department’s role in defining the “core powers of the president,” Justice Neil Gorsuch said: As much as the future ones. …And again, I’m not worried about this case, but I’m concerned about the future use of criminal law to target political opponents based on accusations of motive. ”

But at this moment, Gorsuch He made it clear that he supports President Trump’s substantive position. The real question is not what the former president did after the 2020 election, but what his “political opponents” did to him. Gorsuch might as well say he wants to make sure that future presidential administrations don’t do to the former president what Trump claims the Biden administration is doing to him. .

Justice Brett Kavanaugh also succeeded Mr. Gorsuch. He also said, “I’m not focused on the here and now of this case. I’m very worried about the future.”

Then, seemingly out of nowhere, Kavanaugh denounced the Supreme Court’s 1988 decision. Morrison vs. Olson, upheld the constitutionality of the independent counsel provision of the Government Ethics Act of 1978.as law professor Steve Vladeck Note, “Mr. Morrison has long been a lightning rod for conservatives who have rallied around Justice Antonin Scalia’s fierce and clear…single dissent, and Mr. Kavanaugh has repeatedly criticized that decision in judicial briefs. ”

Mr. Kavanaugh, along with Mr. Gorsuch, joined Mr. Trump in asking questions about the possibility that indictments of presidents could be “recycled” and used against future presidents.

Justice Samuel Alito also said: I’m very worried about the future. Alito acknowledged that the case was “very important,” but quickly aligned himself with his fellow futurists, saying, “Everything we decide will apply to all future presidents.” “It will be done,” he said.

Mr. Alito went out of his way to remind Mr. Dreven of his view that the president cannot rely on the integrity and professionalism of the Justice Department or attorney general to protect him from a partisan witch hunt after he leaves office. “We also have two attorneys general who have been convicted of criminal offenses while in office,” Alito said. “There have been others, Mitchell Palmer comes to mind, who have been vehemently viewed as abusing their power.” has been done.”

Atlantic’s David Graham explained, “Justice Samuel Alito worried that if former presidents do not enjoy immunity, they could face the risk of prosecution by their successors, which would pose a threat to the stability of the republic. They argued that if Trump was prosecuted for direct attacks on American democracy, it could later cause indirect damage to American democracy.

Graham calls this the “moment when hearing passes through the mirror,” evoking “Alice’s Adventures in Wonderland.”

As last week’s parade of hypotheticals showed, if the courts grant presidents immunity from prosecution for crimes committed while in office, as Graham suggests, everyone who values ​​American democracy will have no right to believe that the Constitution We will find ourselves in a world that was never possible for the people who drafted it. I’ve been imagining it.

Austin Surratt is the William Nelson Cromwell Professor of Law and Political Science at Amherst College.