The Supreme Court handed down another decision on Friday. Another day without an opinion on Presidential Immunity. There is no greater evidence of the malice and bias of the Court's right-wing majority than their delay in deciding whether felon and former President Donald Trump should be charged with insurrection. By deciding to postpone this case for more than six months, the Supreme Court is committing election interference itself.
Trump's strategy in his four criminal cases has been to hold off until after the election, then, if elected, drop the federal prosecutions and put the state cases on hold. Now, thanks to the almost comical delays in Trump's Espionage Act lawsuit by U.S. District Judge Eileen M. Cannon and similarly blatant delays from the Supreme Court, Trump may get his way.
Judge Cannon has been widely criticized for her clear favoritism toward Trump, for raising frivolous arguments, for holding pointless hearings (including a bizarre, hours-long hearing in which lawyers for other parties argued settled issues), and for delaying a final appealable decision. No wonder her peers (including the Chief Justice of the Southern District of Florida) have called for her to resign. But is the Supreme Court majority any better?
“By sparing Donald Trump from being tried before a jury on two felony charges, three of Trump's Supreme Court appointees, plus MAGA Justices Alito, Thomas and Eileen Cannon, have already irreparably interfered with the 2024 election,” wrote Michael Podhorzer, a longtime Democratic activist and consultant. “Most importantly, a sparing ruling within the next few days, or perhaps weeks, would set the stage for a historic crisis.”
If Trump's January 6 trial is brought forward, U.S. District Judge Tanya S. Chutkan will be found to be interfering with the election. If she waits until after the election, it will be clear that the Supreme Court is already at Trump's mercy. “It didn't have to come to this. This case would have been decided already had the Republican majority not intervened at the last minute,” Podhorzer wrote. “It would have been decided had the Supreme Court not refused to rule on the same issue when Jack Smith asked it to do so last December.”
Follow this authorJennifer Rubin's opinion
The dragging out of the case since Smith first asked the Court for a decision in December stands in stark contrast to the Supreme Court's swift decisions in other time-sensitive cases, such as Pentagon Papers (oral argument on June 26, 1971, decision on June 30), Bush v. Gore (decided less than a week after the Court agreed to hear it in 2000), President Trump's 14th Amendment disbarment challenge (decided 25 days after oral argument this year), and the Watergate Tapes litigation (the Court took up the case on May 31, 1974, heard oral argument on July 8, and ruled on July 24).
This delay is all the more egregious because few credible legal observers expect the Supreme Court to rule that a former president has absolute immunity. Had the Court simply upheld the rulings of the U.S. District Court in Washington or the U.S. Court of Appeals for the District of Columbia Circuit, the district court trial could have begun as normal. However the Supreme Court ultimately analyzes what conduct qualifies as immunity (rather than simply determining that immunity is impossible for an attempted coup) and devises a procedure for the lower courts to hear the case, it will undermine a judicial system that gives not only the accused but also the public the right to a timely trial.
As constitutional law scholar Laurence Tribe (who worked on Bush v. Gore) recently told Salon, “The court could have taken on the case in December, when the special counsel sought in person review, or it could have declined to take on the case after the Court of Appeals dismissed Trump's appeal in its entirety, which might have ended the case by now. But the court is stalling.” And now the court is trying to buy time on a case that was argued nearly two months ago.
Even if the Supreme Court were to reject the blanket absolute immunity argument, its blatant delay would send a signal to Judge Eileen Cannon and other lower court judges that judicial manipulation through simple delay and procedural maneuvers is acceptable. The Court's actions pave the way for widespread and deliberate manipulation of trial schedules in favor of favored parties.
All of this is happening in the midst of some of the worst scandals in the history of the Supreme Court, raising serious questions about the independence and integrity of its justices (e.g., Justice Samuel A. Alito Jr.'s flying of the rebel flag, Justice Clarence Thomas' refusal to recuse himself despite his wife's participation in the attempted coup, and Justice Thomas' multiple financial disclosure violations and acceptance of multi-million dollar gifts), which, combined with the apparent manipulation to benefit “our side,” will forever tarnish the Court's reputation.
The Supreme Court's egregious behavior only highlights the abuses of power that life tenure can lead to. For there to be any hope of restoring the integrity of the Supreme Court, voters, Congress, and the President must insist on rigorous ethics reform, term limits, and a rebalancing of the Court with justices who uphold judicial standards and ethics. The current cadre can no longer be expected to deliver fair, impartial, or timely justices.
