Jed Shugerman has recently described the Supreme Court's presidential-immunity opinion in Trump v. United States as "anti-originalist because the historical evidence is overwhelmingly on the other side." While there is certainly a lot to be said in favor of limiting or overruling Nixon v. Fitzgerald on the basis of the original meaning of "executive power" (see, e.g., Sai Prakash's work), it does not seem right to me to say that an opinion inconsistent with original meaning should be called "anti-originalist" unless the Court explicitly does so in the name of the idea that original meaning, even if known with certainty, is not binding.
Cases like Chiafolo v. Washington or Trump v. Anderson are better termed "originalist disasters," as Mike Rappaport has called them. But because they do not repudiate the bindingness of sufficiently-clear original meaning as such, it is wrong to say that such cases are "anti-originalist." Neither these cases nor Trump v. United States can properly be cited–for instance, by intermediate federal courts–for the proposition that even perfectly-clear original meaning is not binding. Such courts lack the power to harmonize the Supreme Court's inconsistencies–even the power to overrule moth-eaten Supreme Court precedents in the name of later ones. Intermediate federal courts certainly cannot take their own view of original meaning in tandem with the Court's erroneous conclusions to produce the conclusion that original meaning is not be binding even if perfectly clear. To the extent that academics embrace that reasoning, they likewise should not attribute it to the Court.
Posted at 9:50 AM