When a justice is nominated to the Supreme Court they are first confirmed by the Senate. During the confirmation process they frequently answer a Senator’s question on how they would rule on specific kinds of cases with “I can’t answer that because it is a hypothetical and I would need to evaluate the specific case.”
After listening to many of the Justices’ questions in Donald Trump’s immunity from prosecution for January 6th activities case, it seems the Justices who invoked “I don’t rule on hypotheticals” spent most of their time speculating on hypotheticals during questioning. As I recall only one of the questions considered the specific case at hand.
For over 240 years, forty-six Presidents have made consequential decisions when fulfilling their official duties as President with no explicit assurance of “immunity.” It is also worth noting that the few who have faced potential indictments after leaving office were facing charges for personal rather than official acts. Until this case the implicit assumption has been that, once they leave office, Presidents can be charged for criminal acts they committed while in office (e.g. Richard Nixon’s acceptance of a pardon). Mitch McConnell even stated this explicitly at the end of the second impeachment trial in the Senate. And personally, I think it is important that the President consider legality when making a consequential decision.
The speculation that if a President is not given immunity they will be so inundated with nuisance law suits that they can’t do their job also is hypothetical, (1) because it has not happened in the previous 240+years and (2) the DOJ currently has a policy not to indict a President while in office while doing the job. This hypothetical also shows a lack of faith in our judicial system. The District Courts have demonstrated the ability to efficiently weed out “frivolous” law suits based on merit of the evidence without them reaching SCOTUS level (e.g. the 61 baseless “2020 Election Fraud” cases). If SCOTUS eventually determines the number of specific cases with merit coming to them has become too burdensome, a decision on how to craft a more general ruling at that time will be based on more extensive specific case law experience, not hypotheticals.
If, as they claim during confirmation hearings, SCOTUS bases their decision only on the specific case before them the decision is quite simple:
Does the former President have immunity for attempting to subvert the Constitutional process of transfer of power to his duly elected successor by falsely claiming election fraud, attempting to interfere in state election processes, and inciting a violent insurrection to stop the congressional certification of results?
They can rule on this specific case without setting a larger precedent covering other types of decisions a President might make in performing their official duties. SCOTUS doesn’t even have to consider whether acts are official or personal to be subject to immunity. That can be left implicit until a specific case involving official acts comes before them. They also don’t need to worry about the precedent setting hypotheticals in this case because, as Roe v. Wade demonstrated, they can overturn any precedent this decision might set with a ruling on a future case.
Perhaps in future Senate confirmation hearings nominated justices should not be allowed to avoid questions because they are hypothetical given that many of the current SCOTUS decisions seem to weigh heavily on hypotheticals for their justification.