What He Said

At last week’s oral argument in the Trump immunity case, Justice Gorsuch defended the Court’s focus on hypotheticals by saying it’s “writing a rule … for the ages.”

Today’s “One First” explains why that’s the *exact* problem with how #SCOTUS appears to be approaching this case: pic.twitter.com/LQwubdjETx

— Steve Vladeck (@steve_vladeck) April 29, 2024

The non-law professor version (because I don’t need any more paid subscriptions) is that courts should try the case before them, not the cases that might come before them. This is connected to standing and jurisdiction and venue. Which is to say, it’s as fundamental to the concept of courts as it gets. And it keeps courts from being super-legislatures. Which is also fundamental to the concept of courts, as in:,what establishes and preserves their legitimacy, and even their claims to be the third branch of government.

But as I said, the blueprint for the argument, at least, seems to have been Fitzgerald; and the majority in Fitzgerald happily entertained hypotheticals well beyond the scope of one civil lawsuit, in order to establish absolute immunity from civil suits for the POTUS.

But Fitzgerald also distinguished civil from criminal claims; the majority implicitly so, the dissent explicitly. And there, as they say, our problems begin.