In Trump cases, the Supreme Court cannot avoid politics

In important cases involving former President Donald J. Trump, the Supreme Court has tried to put some distance between itself and politics. That fragile project does not seem to be successful.

“If the court tries to stay out of the political fray, it will fail miserably,” he says Melissa Murrayprofessor of law at New York University.

The case for an effort to bring unity to the court in cases involving the former president is based on 27 data points, or nine votes each in three major rulings, all of which are nominally unanimous. These statements suggest that the justices are trying to find consensus and avoid politics.

For example, there were no dissents from Monday’s Supreme Court decision that allowed Trump to remain on ballots nationwide despite a constitutional provision that bars insurrectionists from holding office.

There were also no dissents in December, when the court denied a request by prosecutors to bypass a federal appeals court and quickly rule on Trump’s bold claim that he is immune from prosecution on conspiracy charges to undermine the 2020 elections. . That could have guaranteed a trial well before the 2024 elections.

And there were no dissents last week when the case returned to court after a unanimous three-judge panel of the appeals court correctly rejected the immunity argument. The Supreme Court, after more than two weeks of considering what to do, has decided to postpone Mr. Trump’s trial while it hears the case. danger.

But the unity expressed in the three statements is fraying.

On Monday, all nine justices agreed with the fundamental conclusion that states may not bar presidential candidates from voting under Section 3 of the 14th Amendment, which prohibits officials who had sworn to uphold the Constitution and then rioted, from to hold office.

The court should have stopped there, he said David A. Strauss, professor of law at the University of Chicago. But five justices, in an unsigned majority opinion, went further with a much broader ruling, saying detailed federal legislation was needed to give Section 3 teeth in every situation.

“In fairness to the court,” Professor Strauss said, “they were in a difficult situation – they understandably didn’t want to disqualify Trump, but all the exits had major problems. But if they had inevitably had to write a weak and flawed opinion, perhaps they could have written one that got nine votes instead of five.”

According to the opinions, the court’s three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — seemed surprised by the majority’s haste to decide cases that were not up to them, when nine justices had already reached agreement. “We cannot join an opinion that unnecessarily decides weighty and difficult issues,” they wrote of the majority’s unsigned “per curiam” opinion, which is legal Latin for “by the court.”

Pamela S. Karlana law professor at Stanford, said the court had harmed itself by going further than necessary.

“In my view,” she said, “the court’s attempt to appear apolitical was undermined by the per curiam majority’s decision to go beyond the minimalist rationale of the concurrence—that there are special considerations regarding the presidency advising against having state courts enforce Section 3 — that could have prompted Justices Sotomayor, Kagan and Jackson to sign on. And for what?”

Professor Murray had a theory, and it was not one that flattered the court.

“While this decision rejects the state’s authority to invoke Section 3 in favor of Congress’s authority to do so, the real winner here is ultimately the court, which gets to decide when states’ prerogatives matter and when not,” she said. . “And the beneficiary of the court’s usurpation of power is not only the court, but also Donald Trump.”

The decision in the Colorado case, she added, at least had the advantage of speed. The court granted Trump’s petition for review on January 5, two days after he filed it. It scheduled oral arguments a month later and ruled a month later.

Disposing of an important case full of new constitutional issues within two months was exceptionally quick work by Supreme Court standards.

The immunity case is much simpler and yet proceeds much more slowly. It is true that the court put it on an accelerated schedule when it got around to hearing the case, 16 days after Mr. Trump asked to suspend the trial. But that schedule required arguments about seven weeks after the court acted, the week of April 22.

Professor Murray said the contrast between the two cases was telling.

“The disqualification case was decided relatively quickly, which proves that the court can act quickly when it wants to,” she said. “The immunity appeal makes it clear that the court can also drag its feet whenever it wants.”

The delay will matter, Professor Murray said.

“It is highly unlikely that the January 6 DC trial – at least in its current form – will result in a verdict before the elections actually begin,” she said. “This means that the court not only gave Trump an actual victory over Colorado in the disqualification case, but also gave Trump the reprieve he asked for — and a de facto victory on the immunity front.”

Jac Goldsmitha law professor at Harvard, said the judges were in an impossible position.

“Everyone on the field is acting in good faith and believes they are being non-political and doing the right thing,” he said. “The court has avoided Trump’s madness and the Trump response far more than any federal agency. But these cases involving Trump or involving the court invariably have a huge impact on presidential politics, regardless of what or how the court decides.”