Remembering the Great Chief Justice

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term. This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.

Documentary Editing and the Jay Court: Opening New Lines of Inquiry Ene Sirvet and R.B. Bernstein For too long, Americans have thought that the history of the Supreme Court of the United States began with John Marshall. Even many lawyers, legal scholars, and historians, though aware that three Chief Justices preceded Mar­ shall, have dismissed their tenures as insignifi­ cant at best, failures at worst. Evaluating the Supreme Court that was by reference to the pow­ erful appellate tribunal that is wrongly gauges a Chief Justice’s success by two rules of thumb: did the Court under that ChiefJustice hand down important constitutional decisions that have be­ come bulwarks of modem American constitu­ tional law? Was that ChiefJustice a leading force in promulgating such decisions? Using the modem understanding of the Su­ preme Court as a measure to evaluate earlier Courts obscures how, by a process neither unop­ posed nor foreordained, the Court became the center of gravity of American constitutionalism. Moreover, focusing the historiography ofthe fed­ eral courts on the Supreme Court scants the vi­ tal role played in the development of American law by the lower federal bench, whether trial or appellate. The Promise of Documentary Editing One factor obscuring the early Court was the difficulty of access to historical evidence. Until recently, most primary sources for the early Court were unpublished, scattered in repositories around the nation, and difficult to use for any­ one lacking historical background and legal training. Lawyers of that era used a complex legal jargon that can baffle unprepared research­ ers. For example, studying the federal circuit courts requires a grasp of such subjects as the common law writ system and federal jurisdic­ tion. Knowing the difference between a suit “in trespass” and one “in trespass on the case” is key to analyzing the kinds of lawsuits that these courts heard; knowing the rules of federal juris­ diction reveals whether cases were properly brought before the courts and lays bare patterns of interstate litigation and the economic trans­ actions behind such suits. Now the “documentary editing revolution,” hailed by historian William W. Freehling as the most important development in modem Ameri­ 18 JOHN JAY can historiography,' has embraced the federal courts. Not only is John Marshall the focus of one ofthe most distinguished documentary edit­ ing projects, The Papers of John Marshall— two other projects examine the pre-Marshall fed­ eral judiciary: The Documentary History of the Supreme Court ofthe United States, 17891800 and The Papers of John Jay. A documentary history portrays the growth of an institution or process of government, trac­ ing the development ofcollegial relations among its members and its processes of collective deci­ sion-making. A documentary editing project keyed to an individual complements institutional documentary histories by presenting the institution’s development through that person’s eyes—especially when, like Jay or Marshall, he is the institution’s leader. A Chief Justice over­ sees and speaks for the Supreme Court and the federal judiciary; he monitors the administration of the federal bench, the courts’ ability to fulfill their constitutional and statutory duties, and the judiciary’s place in the public mind. Focusing on the first Chief Justice offers a unique view ofthe federal courts’ early develop­ ment. This is the goal ofthe last volume of The Papers ofJohn Jay: ChiefJustice and Feder­ alist Statesman, 1789-1829, which will exam­ ine Jay as the Court’s ChiefJustice and as one of six circuit judges. It will assess the burdens he faced while riding circuit and while presiding over the Court, leading his colleagues in defin­ ing the Court’s role in an evolving constitutional system. It will describe the number and kinds of cases that Jay heard, and it will trace patterns of federal litigation. It will analyze how Jay and his colleagues grappled with the problem of extrajudicial activities and responsibilities— those imposed by Congress (as in the 1792 stat­ ute asking the Justices to hear RevolutionaryWar veterans’ pension claims) and those sought by President George Washington and his adminis­ tration (such as his 1793 request for an advisory opinion from the Court, discussed in the follow­ ing article, and his 1794 naming of Jay as Min...

Previous articleNext article No AccessResearch NotesJudicial Career Patterns and Majority Opinion Assignment on the Supreme CourtElliot E. SlotnickElliot E. Slotnick Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Politics Volume 41, Number 2May, 1979 Sponsored by the Southern Political Science Association Article DOIhttps://doi.org/10.2307/2129783 Views: 5Total views on this site Citations: 15Citations are reported from Crossref Copyright 1979 Southern Political Science AssociationPDF download Crossref reports the following articles citing this article:Erin B. Kaheny, John Szmer, Robert K. Christensen Status characteristics and their intersectionality: majority opinion assignment in state supreme courts, Politics, Groups, and Identities 8, no.55 (Feb 2019): 894–917.https://doi.org/10.1080/21565503.2019.1569538Drew Noble Lanier Acclimation Effects and the Chief Justice: The Influence of Tenure and Role on the Decisional Behavior of the Court’s Leader, 1888-2007, American Politics Research 39, no.44 (Jul 2011): 682–723.https://doi.org/10.1177/1532673X11401813Drew Lanier Acclimation Effects and the Chief Justice: The Influence of Tenure on the Decisional Behavior of the Court’s Leader, 1888-2007, SSRN Electronic Journal (Jan 2011).https://doi.org/10.2139/ssrn.1846631Solomon Omoregie Ukhuegbe Recruitment and Tenure of Supreme Court Justices in Nigeria, SSRN Electronic Journal (Jan 2011).https://doi.org/10.2139/ssrn.2034920Forrest Maltzman, Paul J. Wahlbeck A Conditional Model of Opinion Assignment on the Supreme Court, Political Research Quarterly 57, no.44 (Dec 2004): 551–563.https://doi.org/10.1177/106591290405700404Lori Hausegger, Stacia Haynie Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division, Law <html_ent glyph="@amp;" ascii="&"/> Society Review 37, no.33 (Sep 2003): 635–657.https://doi.org/10.1111/1540-5893.3703006C. L. Ostberg, Matthew E. Wetstein, Craig R. Ducat Acclimation Effects on the Supreme Court of Canada: A Cross-Cultural Examination of Judicial Folklore *, Social Science Quarterly 84, no.33 (Aug 2003): 704–722.https://doi.org/10.1111/1540-6237.8403013Saul Brenner, Timothy M. Hagle Opinion writing and acclimation effect, Political Behavior 18, no.33 (Sep 1996): 235–261.https://doi.org/10.1007/BF01498601Timothy M. Hagle A NEW TEST FOR THE FRESHMAN EFFECT, Southeastern Political Review 21, no.22 (Nov 2008): 289–308.https://doi.org/10.1111/j.1747-1346.1993.tb00364.xTerry Bowen, John M. Scheb Reassessing the “freshman effect”: The voting bloc alignment of new justices on the United States Supreme Court, 1921–90, Political Behavior 15, no.11 (Mar 1993): 1–14.https://doi.org/10.1007/BF00993413J. F. Kobylka Leadership on the Supreme Court of the United States: Chief Justice Burger and the Establishment Clause, Political Research Quarterly 42, no.44 (Dec 1989): 545–568.https://doi.org/10.1177/106591298904200407Peter J. Bergerson JUDICIAL BACKGROUND TRAITS UNDER THE MERIT SELECTION PLAN: THE MISSOURI COURT PLAN REVISITED, Southeastern Political Review 15, no.22 (Nov 2008): 169–188.https://doi.org/10.1111/j.1747-1346.1987.tb00241.x Edward V. Heck , and Melinda Gann Hall Bloc Voting and The Freshman Justice Revisited, The Journal of Politics 43, no.33 (Oct 2015): 852–860.https://doi.org/10.2307/2130641 Steven A. Peterson Dissent in American Courts, The Journal of Politics 43, no.22 (Oct 2015): 412–434.https://doi.org/10.2307/2130375 Gregory J. Rathjen Conventional Wisdoms Don't Die Easily: Judicial Career Patterns and the Context of Majority Opinion Assignment, The Journal of Politics 42, no.44 (Oct 2015): 1170–1172.https://doi.org/10.2307/2130746

Comments on Mark Seidenfeld’s “Revisiting Congressional Delegation of Interpretive Primacy as Foundation for <i>Chevron</i> Deference”

Lincoln and Chief Justice Taney JAMES F. SIMON* Abraham Lincoln and Chief Justice Roger B. Taney may have met only twice—in 1849, when Lincoln made an oral argument before the Supreme Court, and in 1861, when Chief Justice Taney administered the presidential oath of office to Lincoln. The two men’s roles in American history are inextricably bound nonetheless, as I will attempt to demonstrate in this essay. The first meeting of Lincoln and Taney probably took place when Lincoln made his only argument before the Supreme Court of the United States in March 1849. It occurred shortly before he had completed his single— and, to Lincoln, very disappointing—term as a member ofthe U.S. House ofRepresentatives. At that time, he felt that he had made no signif­ icant mark in his two-year congressional term and was resigned to returning to Springfield to resume his full-time law practice.1 In his Supreme Court argument, Lincoln represented the estate of an Illinois resident, Matthew Broadwell, who in 1819 had sold a parcel ofland in Ohio to a man named William Lewis. The problem, Lewis later discovered, was that Broadwell did not own the land. After the rightful owner ejected Lewis from his land in 1825, Lewis sued Broadwell for damages.2 In his Supreme Court argument, Lincoln did not dispute that Broadwell had sold Lewis land that he did not own. He argued only that by the time Lewis sued, the statute of limi­ tations had run, so Lewis could not lawfully collect from Broadwell’s estate. It came down to a legal question of statutory interpretation. Lincoln lost the case, and ChiefJustice Taney wrote the majority opinion rejecting his argu­ ment.3 It was the first time that Lincoln and ChiefJustice Taney disagreed in a dispute be­ fore the Supreme Court, but it would not be the last. When Lincoln presented his argument in the Lewis case, the Justices of the Supreme Court did not sit in the current magnificent courtroom— or any other. In fact, they listened to Lincoln’s argument in a room in the base­ ment of the Capitol building. One member of the Court, Justice John Catron of Tennessee, later blamed the dark, dank basement quarters for the bad health of many ofthe Justices.4 We have no physical description of Lincoln when he argued the Lewis case 226 JOURNAL OF SUPREME COURT HISTORY Lincoln argued one case before the Supreme Court, Lewis v. Lewis, in 1849, a mundane land-sale dispute that received little attention. Lincoln was admitted to the Supreme Court Bar on March 7 on the motion of Washington attorney Alexander H. Lawrence, who argued the case that day. As co-counsel, Lincoln made the concluding remarks the following day in what is now the refurbished Old Senate Chamber. before Chief Justice Taney and his Brethren. But thanks to photographs and contemporary accounts, we know that Lincoln was very tall—about 6'4"—and thin and spoke in a high, slightly shrill voice. His success as a trial lawyer was by then well established. He spoke plainly and effectively to bothjuries and judges.5 In his Supreme Court brief, Lincoln ap­ pealed to what he termed “the dictate of com­ mon sense,” which, he added, “seems to be the perfection of reason.” In urging the Court to adopt his statutory interpretation, Lincoln asked the Justices to draw their conclusions, in his words, “without any metaphysical or hair splitting distinctions.”6 When Taney heard Lincoln’s oral argu­ ment, the ChiefJustice was seventy-two years old, thirty-two years older than Lincoln. Like Lincoln, Taney was tall and thin. But unlike the Illinois lawyer, Taney never possessed Lin­ coln’s physical vigor. Since Taney had been a young lawyer in Maryland, he regularly com­ plained that the stress of his work threat­ ened his health. His complaints were con­ stant, and so was his success as a trial lawyer and as the state’s attorney general. Later, he served President Andrew Jackson as U.S. At­ torney General and Secretary of the Treasury and shared Jackson’s aversion to vested cor­ porate interests. Taney, like President Jackson , was an avowed...

VIEWPOINT: A Letter to the Chief Justice

EACH TERM of the Supreme Court seems to have something to distinguish it from those that have preceded it. With the resignation of Chief Justice Earl effective at the close of the 1968-69 term, this term will remain forever as a milestone for it marked the close of the Warren era as this period has come to be known. Regardless of how the Court moves ideologically in the years to come, it will no longer be the Warren Court. President Nixon named Minnesota-born and educated Earl Burger of the United States Court of Appeals of the District of Columbia to fill the vacancy in the office of Chief Justice. The resignation of Associate Justice Abe Fortas in May gave the newly inaugurated President another vacancy to fill. Clement Furman Haynsworth, Jr., of Virginia, Chief Judge of the Fourth Circuit Court of Appeals was named but the Senate refused confirmation on November 21, 1969. President Nixon then named George Harrold Carswell, a member of the Fifth Circuit Court of Appeals. Chief Justice Burger is from Virginia and Justice Carswell is from Florida. In its work this term the Court again set a new all-time record in cases disposed of with a total of 3,151. In the 1966 and 1967 terms the totals were 2,903 and 2,973, respectively. In each term since that of 1953 the Court has set a new record of cases disposed of except in the 1958 and 1964 terms. The cases remaining on the docket increased to another apparently all-time high of 767 compared with 453 and 613 in the previous two terms respectively. Cases argued were down to 140 as against 180 in the 1967 term and 150 in the 1966 term. Of the cases argued, 116 were disposed of by 99 written opinions and 14 by per curiam opinions. Ten cases were set for reargument. Again the division of labor in the writing of opinions was well-nigh even among the justices. Justice Marshall wrote thirteen opinions. Chief Justice Warren, Justice Douglas, and Justice Brennan each wrote twelve, and they were followed by Justice Black and Justice Stewart with eleven each, and Justice Harlan and Justice White with ten each. Justice Fortas wrote eight. Dissenting opinions totaled 77 by comparison with 79 in the 1967 term and 74 in the term before that. Justice Black with eighteen dissenting opinions displaced Justice Harlan with sixteen as the champion dissenter. They were followed by Justices Stewart (thirteen), Douglas (nine), White (eight), Fortas (six), (four), Marshall (two), and Brennan (one). The Court adjourned on June 23, 1969, the latest date since the June 25 adjournment in 1962.

Before It Was Merely Difficult: Belva Lockwood's Life in Law and Politics Jill Norgren On December 2, 1880, the widely-read Washington, D.C., newspaper, The Evening Star, announced that for the first time a woman lawyer had “an opportunity to argue a cause in the U.S. Supreme Court.” No banner headline accompanied the thirty-six line notice but, in keeping with its historic nature, the oral argument made by BelvaA. Lockwood prompted attention. This con­ trasted sharply with the prior year when the same newspaper, known for its reporting of civic affairs, barely remarked upon the admission ofLockwood as the first female member ofthe bar of the Supreme Court of the United States stating only, “For the first time in the history of this court a woman’s name now stands on the roll of its practitioners.”1 The brevity of this announcement hid the dramatic story of the woman who had struggled for a decade, first, to join men in the study of law, and later, in its practice. At the time of her admission to the U.S. Supreme Court bar Lockwood was the head of a small Washington, D.C., law office. She had been licensed to practice law in the courts of the District of Columbia in 1873, winning the right shortly after the pioneering African-American woman attorney, Char­ lotte E. Ray.2 Lockwood had established a general practice, taking and arguing cases in the Law (Civil), Criminal, and Equity divisions ofthe Supreme Court ofthe District of Columbia. Although these accomplishments were story enough, Lockwood’s career merited par­ ticular attention because she had, virtually single-handedly, contested the federal courts and then Congress for five years in order to win the “bill ofrights” that gained women law­ yers admittance to the U.S. Supreme Court. She insistently claimed the right of women to pur­ sue professional careers at a time when most Americans were certain that middle-class women properly belonged at home. She became a lawyerbecause she believed that attorneys had BELVA LOCKWOOD 17 greatpowerto shape public policy andbecause she believedthatwomen shouldhave equal op­ portunity to participate in governance. She fought the exclusion of women from the fed­ eral bar as a lawyer and an activist. Lockwood was an early and adamant woman suffragist whose activism led to a lifetime of personally confounding the social axioms of nineteenthcentury America. Her life provides a bold and visible example of pluck, persistence, and achievement. She not only desegregated the profession oflaw, but also changed the face of American politics when she ran for the United States presidency in 1884 and 1888. Journey Into Law and Politics Lockwood was bom Belva Ann Bennett in Royalton, Niagara County, New York, in 1830. Her farm family background endowed her neither with advantage nor a tradition of rebellion. As a teenager she resembled numer­ ous country girls who provided an extra pair ofhands at home while teaching numbers and letters atthe local schoolhouse. Widowed, with a child, at age twenty two, she entered a local seminary and a year later its affiliated college (now Syracuse University), eventually becom­ ing a teacher and school principal. She de­ scribed herself in an 1867 survey of college alumni as “an earnest, zealous laborer in the cause ofEducation, Sabbath School and Mis­ sionary work and an indefatigable advocate of the Temperance Cause....”3 At thirty-six, Belva Bennett McNall moved herselfandher sixteen-year-old daugh­ ter to Washington, D.C. Later in life she ex­ plained the move and her motives in several different articles and interviews. In her 1888 self-portrait, “My Efforts To Become A Law­ yer,” written for Lippincott’s Monthly Maga­ zine, she said, “I sold out my school property in Owego, and came to Washington, for no other purpose than to see what was being done atthis greatpolitical centre, —this seethingpot, —to learn something ofthe practical workings of the machinery of government, and to see what the great men and women ofthe country felt and thought.”After visiting herparents and exploring the possibility ofteaching in the area of Illinois to which they had moved, she re­ turned to Washington and “accepted a position in a...

Holding on to a huge victory for American health

Can an apparent loser snatch victory out of the jaws of defeat? This question occupied the attention of the late William H. Riker during the last ten years of his career, and it is one that he answered in the affirmative: By constructing choice situations in order to manipulate outcomes, losers can become winners, and vice versa. Riker even coined a term, ‘heresthetics’, to describe this ‘art of political manipulation’. But is Riker’s rather large body of work the ‘idiosyncratic’ product of a ‘singular genius’ or can it serve as the ‘foundation of a new theory of politics’? Scholars have recently raised this question, and not unreasonably so, for Riker’s theory of heresthetics has yet to gain a serious foothold into the political science literature. We develop a game-theoretic model, which enables leaders — in our case, Chief Justices — to engage in heresthetical manipulations. From this model, we deduce propositions about the circumstances that would lead them to invoke heresthetical devices, as well as the particular strategies we would expect them to employ. Finally, we explore the propositions against data amassed from the private papers of two former justices. Our results indicate that Riker’s work was not the ‘idiosyncratic’ product of a ‘singular genius’ but rather can serve as the ‘foundation of a new theory of politics’.

One key problem concerning meaningful explanation of the activities of the United States Supreme Court is: how do the Justices make decisions in the cases before them? From the behavioralist perspective, attitudinalism remains the dominant model for explaining decision-making on the United States Supreme Court. A series of works uses statistical analysis, based on large datasets, to show clearly that the behavior of Justices, at least as far as their making of decisions in civil liberties cases goes, is highly predictable given a relatively small amount of information about the Justices' perceived views before their appointment to the Court.The availability and development of a major dataset – Harold J. Spaeth, United States Supreme Court Judicial Database, 1953–2001 Terms Computer File (East Lansing, MI: Program for Law and Judicial Politics, Dept. of Political Science, Michigan State University: continuously updated; downloadable from http://polisci. msu.edu//pljp) – has led to a series of increasingly comprehensive analyses of attitudinalism. See Jeffrey A. Segal and Albert D. Cover, “Ideological Values and the Votes of U.S. Supreme Court Justices,” American Political Science Review 83 (1989): 557–65; Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (Cambridge: Cambridge University Press, 1993); Jeffrey A. Segal et al., “Ideological Values and the Votes of U.S. Supreme Court Justices Revisited,” Journal of Politics 57 (1995): 812–23; Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge: Cambridge University Press, 2002).

Law & Psychiatry: Congress Restores the Americans With Disabilities Act to Its Original Intent.

The bitter and protracted struggle between President Thomas Jefferson and Supreme Court Chief Justice John Marshall defined the basic constitutional relationship between the executive and judicial branches of government. More than one hundred fifty years later, their clashes still reverberate in constitutional debates and political battles.In this dramatic and fully accessible account of these titans of the early republic and their fiercely held ideas, James F. Simon brings to life the early history of the nation and sheds new light on the highly charged battle to balance the powers of the federal government and the rights of the states. A fascinating look at two of the nation's greatest statesmen and shrewdest politicians, What Kind of Nation presents a cogent, unbiased assessment of their lasting impact on American government.

The US Supreme Court, on June 25, with Chief Justice Roberts writing for the majority, ruled (6–3) that the refundable tax credits created by the Patient Protection and Affordable Care Act and made available to individuals who purchase health insurance on state exchanges are also available if the insurance is acquired from an exchange established by the federal government (King v. Burwell). The argument advanced by those challenging this conclusion was that the credits are not available in the latter instance because the statute provides that these subsidies may be offered only in connection with an exchange established by a state. The IRS had issued a regulation providing that an individual is eligible for a tax credit if he or she enrolled in an insurance plan through “an Exchange,” regardless of whether the exchange is established and operated by a state or the federal government.

The criminal liability of the President for acts committed in the exercise of his office covers a complex of issues related to all areas of the legal system. Indeed, the criminal law aspects of the grounds and manner of criminal liability are complemented by constitutional elements. The special position and powers of the President co-determine the scope of responsibility. The President’s actions that fall within the limits of his powers and duties remain, for obvious reasons, outside the scope of repressive responsibility. The scope of presidential responsibility is also co-determined by institutions categorised as instruments of corrective justice, including states of necessity and circumstances excluding fault. This issue can be analysed from a purely penal perspective or it can also take into account elements of constitutional regulation. The US Supreme Court’s approach was based on yet another perspective. The elements that determine the limits of the President’s criminal liability for acts committed in the exercise of his office are sought by the Supreme Court in its reconstruction of the principle of separation of powers. Pointing to the presidential powers set out in Article II of the US Constitution, it assumes that they delimit the area of independent and exclusive powers, within the scope of which Congress may not interfere by means of legislation. By virtue of the will of the legislature thus reconstructed, Congress lacks the authority to enact laws providing for the criminal liability of the President in this respect. Consequently, the courts also lack the competence to oversee such cases. The above assumptions form the basis for the US Supreme Court to reconstruct from the US Constitution the absolute immunity of the President in terms of the exclusive and preclusive competences set out in the US Constitution. In addition, the Supreme Court also derives from the US Constitution the construction of presumptive immunity, which covers presidential actions in the area of shared powers with Congress. Although, in this respect, the Constitution does not deprive Congress of the power to legislate, including the power to define the grounds for the President’s criminal liability, the bring to criminal charges against the President is contingent on a demonstration that this will not unduly interfere with the efficiency and authority of the executive branch. By locating the grounds for the reconstruction of presidential immunity at the level of constitutional provisions relating to the principle of separation of powers, the approach presented by the Supreme Court transforms criminal law analyses into systemic constitutional considerations. In this way, the Supreme Court’s decision on presidential immunity is part of the debates concerning the nature of the constitutional principle of the separation of powers, the court’s competence to rule on constitutional issues, the delimitation of the scope of competences of the authorities, and, finally, the disputes concerning the scope of the Court’s cognition in the sphere of matters that are strongly entangled politically and morally. The US Supreme Court’s decision on presidential immunity was based to a significant extent on the jurisprudential concept (doctrine) of the separation of powers. The essential line of argumentation is based on the Supreme Court’s reconstruction of the content, meaning and function of the principle of separation of powers, which forms the basis for the position relating to the scope and type of presidential immunity. At the same time, in the sphere related to absolute immunity, one can see in it a reference to the concept (doctrine) of the republican separation of powers. The exclusion of the possibility of the courts’ interference in the area of competence regulated by Article II of the US Constitution means that the assessment of the President should take place at the level of constitutional responsibility in the impeachment procedure. In the area covered by the construction of impeachment, by confirming the competence of the courts to carry out a criminal assessment, it supplements the prerequisites for liability with elements reconstructed from the Constitution. It thus expresses restraint in the sphere of judicial competence on matters relating to constitutional and political aspects. It does not decide the question of immunity unequivocally, leaving a considerable area of discretion, leaving a space that can be filled by subsequent decisions of the federal courts on this issue.