Today the Supreme Court passed a major milestone. It’s now taken them longer to decide whether Trump is effectively above the law — a straightforward question that lower courts have decided quickly and definitively — than it took them to decide a novel and complex case on whether the Constitution allows states to bar Trump from the ballot.
Today marked the twenty-fifth day since the Court heard oral argument in Trump v. United States, the case that will determine whether former president Trump has immunity from criminal prosecution for conspiring to overturn the results of the 2020 election and deprive millions of Americans of their right to have their votes counted.
That is how long the Court took to issue a unanimous opinion in Trump v. Anderson, the case addressing whether the Fourteenth Amendment’s bar on insurrectionists holding office disqualified Trump from being on the ballot in Colorado. In that case, the Court interpreted a constitutional provision rarely invoked, with no guiding precedent, in less than a month, assembling a unanimous majority no less. Despite the questionable reasoning of the opinion, the justices were right to quickly resolve a tremendously important legal (and political) issue in an election year. One would be forgiven for thinking the Supreme Court would act with similar urgency in resolving Trump v. United States, a case presenting a far more straightforward — though no less momentous — legal question, and one of equal import to this moment in our national politics.
Presidential immunity is (at least) equally time-sensitive
As we have written, the fair and timely prosecution of Donald Trump’s criminal trials is of critical importance to our democracy in this election year. Not only is it crucial to hold the presumptive candidate of one of the two major parties accountable for his (alleged) role in attempting to overthrow the last election and remain in power, but voters should be given a chance to hear the evidence, see its evaluation and interrogation by both the prosecution and defense, and learn the jury’s verdict — before they can make an informed decision at the ballot box.
As the Supreme Court has itself intoned:
“In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation.”
So why the delay in one case but not the other?
Slow-walking the resolution of Trump v. United States has been the Court’s approach from the beginning. After the district court thoroughly rejected Trump’s unprecedented claim to absolute immunity, the Supreme Court rejected the special counsel’s request that the Court hear the appeal immediately. Instead, the Court of Appeals for the D.C. Circuit expedited the appeal and issued its decision in less than a month, affirming the lower court’s rejection of Trump’s immunity bid. The Supreme Court then stayed the criminal trial – something that should only happen when there is a “significant possibility” that the Court will reverse, an outcome no legal expert expects. It then scheduled oral argument on the last argument day of the term.
The message was loud and clear: a case that could keep Trump off the ballot in Colorado is of paramount importance and first priority for the Court; a case seeking to hold him accountable for attempting to overthrow an election is not.
The Court’s delay is hard to ignore
In the meantime, mounting evidence calls into question the Court’s political neutrality. It is well known by now that Justice Thomas’s spouse was involved in various efforts to overturn the 2020 election. And now the New York Times reports that shortly after an angry mob attacked the Capitol on January 6, 2021, Justice Alito’s home displayed an obvious “stop the steal” symbol. Although Justice Alito has blamed his wife for the display, he has not denied its significance. Not surprisingly, neither Justice Thomas nor Justice Alito has recused himself from the two pending cases addressing the events of January 6th (the other case concerns the proper interpretation of the statute under which hundreds of insurrectionists have been prosecuted and convicted).
With our democracy on the line and the Supreme Court’s legitimacy on the ropes, it’s no exaggeration to say the Court’s credibility is diminished each day that passes without a clear decision denying Trump’s claim to be above the law.
The Court can and should show the nation that our institutions are still capable of meeting the moment by quickly issuing a narrow ruling in Trump v. United States that the former president – and current presidential candidate – is not immune from prosecution for his attempts to stay in power despite having lost the last election.
As an amicus brief by constitutional scholars in Anderson put it, the Court’s punting in that case “would invite chaos while risking great damage to the Court’s reputation and to the Nation as a whole…The Court has the power to resolve the question presented, and it must do so now.“
That is as true here as it was in Anderson. The Court must act.
It’s almost touching that anyone would think the Roberts court still retains a shred of political neutrality. Didn’t they show us, as far back as Citizens United, and then Shelby County v. Holder, which struck down most of the Voting Rights Act, that they have little regard for the electoral process? Quoth SCOTUS: “A republic where the people are sovereign” OMG. LOL!