High court cannot avoid politics in Trump cases
Justices failing in efforts to steer clear of fray, observers say
WASHINGTON — In major cases concerning former President Donald Trump, the Supreme Court has tried to put some distance between itself and politics. That fragile project does not seem to be succeeding.
“If the court is trying to stay out of the political fray, it is failing miserably,” said Melissa Murray, a law professor at New York University.
The case for attempted unity at the court in cases involving the former president is built on 27 data points, or nine votes each in three important rulings, all nominally unanimous. Those rulings suggest that the justices are trying to find consensus and avoid politics.
There were no dissents, for instance, in Monday’s Supreme Court decision letting Trump stay on ballots nationwide despite a constitutional provision that bars insurrectionists from holding office.
Nor were there noted dissents in December, when the court turned away a request from government prosecutors to bypass a federal appeals court and render a prompt decision on Trump’s audacious claim that he is immune from prosecution on charges of plotting to subvert the 2020 election. That could have ensured a trial well before the 2024 election.
And there were, similarly, no noted dissents last week when that case returned to the court after a unanimous three-judge panel of the appeals court soundly rejected the immunity argument. The Supreme Court, after mulling what to do for more than two weeks, decided to keep Trump’s trial on hold while it considers the case, scheduling arguments for about seven weeks later and putting the prospect of a trial verdict before the election in grave peril.
But the unity displayed in the three rulings is fraying.
On Monday, all nine justices agreed that states may not bar presidential candidates from their ballots under Section 3 of the 14th
Amendment, which prohibits officials who had sworn to uphold the Constitution and then engaged in insurrection from holding office.
The court should have stopped there, said David Strauss, a law professor at the University of Chicago. But five justices, in an unsigned “per curiam” majority opinion, went on to issue a much broader ruling, saying that detailed federal legislation was required to give Section 3 teeth in any setting.
“In fairness to the court,” Strauss said, “they were in a tough spot — they understandably did not want to disqualify Trump, but all the offramps had major problems. Having said that, though, if they were inevitably going to have to write a weak and flawed opinion, maybe they could have written one that got nine votes instead of five.”
In a concurring opinion, the three liberal members of the court — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — seemed puzzled by the majority’s rush to decide matters not before them when all nine had already found common ground.
Pamela Karlan, a law professor at Stanford, said the court had done damage to itself by going further than it needed to.
“To my mind,” she said, “the court’s effort to appear apolitical was undercut by the decision of the per curiam majority to go beyond the minimalist rationale of the concurrence — that there are special considerations with respect to the presidency that counsel against having state courts enforcing Section 3 — that could have gotten Justices Sotomayor, Kagan and Jackson to sign on. And for what?”
To Murray, the decision in the Colorado case at least had the virtue of speed. The court granted Trump’s petition seeking review on Jan. 5, two days after he filed it. It scheduled arguments for a month later and rendered its decision a month after that.
The immunity case is much simpler and yet is moving much slower. True, the court put it on what it said was an expedited schedule when it got around to addressing the matter 16 days after Trump asked it to put the trial on hold. But that schedule called for arguments some seven weeks after the court acted, during the week of April 22.
Murray finds the contrast between the cases telling.
“The disqualification case was decided relatively quickly, proving that the court can act expeditiously when it wants to do so,” she said. “The immunity appeal makes clear that the court can also drag its feet.”
Murray said a verdict in the immunity case is unlikely before the election begins in earnest.
“This means that, in addition to giving Trump an actual victory over Colorado in the disqualification case, the court has given Trump the delay he sought — and a de facto victory on the immunity issue.”