Following the nearly three-hour oral argument about presidential immunity in the Supreme Court on April 25, 2024, many commentators were aghast. The general theme, among legal and political experts alike, was a hand-over-the-mouth, how-dare-they assessment of the mostly conservative justices’ questioning of the attorneys who appeared before them in the case known as Trump v. United States.

Rather than a laser-focused, deep dive into the details of Trump’s attempt to subvert the 2020 election, virtually all of the nine justices instead raised larger questions, peppered with hypotheticals – hello again, Seal Team Six! – about the reach of executive power, the intent of the nation’s founders and the best way to promote a stable democracy.

Justice Brett Kavanaugh’s “I’m not focused on the here and now of this case” and Justice Neil Gorsuch’s “We are writing a rule for the ages” drew particular fire.

The headline and subheadline on the New York Times analysis by Supreme Court reporter Adam Liptak complained that the court had taken “Trump’s immunity arguments in unexpected direction” with “very little about the President’s conduct.” And the story itself fumed that the justices had responded to Trump’s claim that he should not face charges as a “weighty and difficult question.”

Slate’s Amicus podcast decried the court for failing to focus on the “narrow question” the case presented, instead going “off the rails” and “bouncing all over the map” with various legal arguments. A guest on NPR’s 1A program lamented that the court had “injected new questions” into the oral argument to “slow-walk” the case and prevent Trump from facing trial before the election.

But here’s what the pundits seem to have forgotten: What happened that day in the court should have surprised no one, especially those constitutional scholars like me familiar with Supreme Court procedure.

Trump’s case stemmed from his prosecution by Special Counsel Jack Smith for his alleged attempts to overturn the 2020 presidential election. Trump claimed he, as president, was immune from prosecution, and he took his case to the Supreme Court.

When parties appeal their case to the court, they must tell the justices what specific legal question or questions they want the justices to answer. As a colleague and I have explored in a recent academic journal article, the court generally accepts what is called the “Questions Presented” as given, agreeing to hear a case without making any adjustments to its legal framing.

Sometimes, however, the court will alter the legal question in some way. Why it does this is an issue that scholars like myself are just beginning to explore. And because it is that question – not the one the litigant initially asked – that frames the legal analysis, the justices can exert real control over both the case itself and the development of the law.

Trump v. United States is a classic example. When attorneys for the former president filed their request with the court, the question presented by them was “Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts.”

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