I have been wondering about this a lot in recent days. It is clear that this question is not relevant to the three liberal justices dissenting most if not all of the recent absurd rulings. As for the remaining six conservative Republican-appointed justices, I would like to say that the answer is yes. But then, who am I to make judgements about the Supreme Court Justices? If they do not, or if they choose to not appreciate or acknowledge it, that’s their prerogative. But, of course, I can try to make some inferences based on the Justices past positions and/or opinions. And I will mainly focus on the recent ruling on presidents’ absolute immunity.

For example, Justice Barrette clearly appreciated the absurdity of the ruling on obstruction of an official proceeding, or the third kind of immunity the Supreme Court’s majority granted to the President (the one stating that evidence from official acts cannot be used in criminal prosecution of the unofficial acts), and she expressed her disagreements in her dissenting or partially concurring opinions. But then, she somehow did not see any issue with the notion of presumptive immunity for all official acts of the President, even the ones on the outer perimeter of the President’s official conducts. As I will explain below, this is quite puzzling. So, one cannot really be sure.

Then we have Justices Thomas and Alito. They have been Supreme Court Justices for many many years and have seen or written hundreds of opinions during their tenure. They have mostly, if not always, sided with conservative, pro gun, anti government (especially the executive branch) rulings. Even most recently, they joined the majority in limiting or in reality dismantling the system of administrative law that had been around for decades. From such conservative justices who seemed to have always believed in limited resources and power for the executive branch, siding with a ruling that practically puts the head of the executive branch above any and all laws and makes him/her a king-like figure, seems quite unusual. In some sense, this ruling even jeopardizes the position and authority of the Supreme Court itself. So, one wonders why these two justices joined the majority opinion in this ruling. The answer most likely lies in the fact that this ruling, unlike what Justice Gorsuch seemed to advocate, is not really for any arbitrary president in the future, but rather it’s meant to apply to only a certain former president, who, unlike any other president in the history of the republic who did not need or ask for absolute immunity to be able to discharge their official duties, needs such immunity to be able to protect himself from criminal prosecution for inciting an insurrection among other egregious acts. This fact, coupled with the extreme conflict of interest that these two justices had in this case (based on their spouses’ staunch and public support of said former president) despite which they declined to recuse themselves from this case, is a strong indication that these justices really did not have any president other than said former president in mind when siding with the majority opinion. So, the answer to the question in the title of this post in the case of these two justices is most likely yes. They certainly knew what they were doing, as well as its long term consequences, but banked on the assumption that left-leaning presidents will not take advantage of this blanket immunity, and so it was worth the risk for them to prioritize protection of their favorite former president over the possibility of dismantling the bases of American democracy.

As for Justices Gorsuch and Kavanaugh, this ruling seems to be more of a matter of loyalty to whom they owe their lifetime position in the highest court of the land. In the case of these two justices, again I believe the answer to the question in the title of this post is yes. I believe they are also fully aware of the dangerous consequences of this ruling, but saw no way out of it without jeopardizing their loyalty to the former president.

The most puzzling aspect of this ruling, in my opinion, is the position of the Chief Justice Roberts. He not only joined the majority in this ruling, but actually wrote the majority opinion. I find it very difficult to assume that he did not realize how absurd some of the arguments in the majority opinion sound, or how significant and devastating the consequences of the ruling can be. As I mentioned above, in some ways, this ruling jeopardizes the position and authority of the Supreme Court itself. So, I am really unable to come up with a convincing reason as to why the Chief Justice decided to play such an important role in this ruling.

Now, back to the absurdities in the absolute immunity ruling. In addition to the egregious and obviously flawed arguments for the third type of immunity (that evidence from official acts cannot be used in criminal prosecution of the unofficial acts) to which even the conservative and Trump-appointed Justice Barrette objected with very clear and convincing arguments in her separate opinion, to me, the most absurd aspect of the ruling is the notion of “presumptive” immunity which the majority invented out of thin air. This immunity is justified based on some strange arguments that would’ve equally applied to any other president in the past, yet somehow they all managed to forcefully discharge their official duties without needing or asking for such immunity. In fact, although they argue that this immunity is to enable the president to confidently and forcefully perform his official duties, everyone knows that the most immediate application of the immunity in the case in front of the court, has nothing to do with the former president’s official duties.

But the absurdity goes beyond that. In several instances in the ruling, the majority opinion reaches crossroads where the presumptive immunity seems to go against precedent and common sense, but the majority chooses to protect this newly invented immunity at the expense of defying well established precedent or common sense. For example, as Justice Barrette points out in her partially concurring opinion, protection of such presumptive immunity in its broadest sense that the majority had in mind, results in crippling the jury in a legitimate prosecution of criminal unofficial acts of the president, by shielding some evidence that may be crucial to understanding the circumstances under which the said criminal unofficial acts had taken place. Not once during this sometimes torturous exercise of legal gymnastics in the over 50-page opinion, did the majority consider the possibility that maybe the problem was with that presumptive immunity that they had invented, and not with all the other precedent or common sense laws which they ended up going around to protect this new form of immunity.

And as I pointed out in the other post about this absolute immunity ruling, the presumptive immunity is practically the same as absolute immunity, only with some delay. This is because almost certainly, all challenges to this type of immunity will ultimately end up in front of the Supreme Court, at which point, the court can grant their desired absolute immunity on a case-by-case basis.

I guess there is no point in repeating my argument that the lack of immunity for unofficial acts is also a rogue. Because the inability of the prosecutors to use evidence from official acts to establish the circumstances under which the unofficial criminal act has taken place, extremely cripples the prosecution and the jury, and makes the unofficial acts also practically immune from prosecution.

So, again, with all the above absurdities and dishonest representation of different treatments for different categories of actions while they all end up being absolutely immune, it is really difficult to understand how the Chief Justice was able to convince himself to take part in such an outrageous ruling.