In important cases involving former President Donald J. Trump, the Supreme Court has tried to put a certain distance between itself and politics. This fragile project does not appear to be a success.
“If the court tries to stay out of the political fray, it fails miserably,” said Melissa Murray, a law professor at New York University.
The arguments for the court’s attempted unity in cases involving the former president are based on 27 data points, or nine votes each, in three key rulings, all of which were nominally unanimous. These rulings suggest that the justices are trying to find consensus and avoid politics.
There was no dissent, for example, against the Supreme Court’s decision on Monday that allowed Mr. Trump to vote in elections across the country, despite a constitutional provision banning insurrectionists from holding office.
There was no disagreement in December either, when the court rejected a prosecutors’ request to bypass a federal appeals court and issue an immediate decision on Mr. Trump’s bold claim that he was immune from prosecution on charges of conspiring to subvert the 2020 election. That could have ensured a process well before the 2024 election.
And there was no significant disagreement last week when the case was sent back to court after a unanimous three-judge panel of the appeals court soundly rejected the immunity argument. After contemplating what to do for more than two weeks, the Supreme Court decided to put Mr. Trump’s trial on hold while it considers the case. The negotiations were scheduled for about seven weeks later and the prospect of a court ruling before the election was put on hold.
But the unity expressed in the three judgments is beginning to falter.
On Monday, all nine justices agreed in principle that states cannot exclude presidential candidates from their elections under Section 3 of the 14th Amendment, which prohibits officials from holding office who have sworn to uphold the Constitution and then involved in an uprising.
The court should have stopped there, said David A. Strauss, a law professor at the University of Chicago. But five justices issued a much broader decision in an unsigned majority opinion, saying detailed federal legislation was needed to give effect to Section 3 in every case.
“In fairness to the court,” Professor Strauss said, “they were in a difficult position – they understandably didn’t want to disqualify Trump, but all the offshoots were in big trouble.” However, if they inevitably had to write a weak and flawed opinion, they would have Maybe we could write one that got nine votes instead of five.”
According to one concurring opinion, the court’s three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — appeared puzzled by the majority’s haste to decide matters that were not before them, even though nine justices had already found common ground . “We cannot join in an opinion that unnecessarily decides significant and difficult questions,” they wrote of the majority’s unsigned “per curiam” opinion, which means “of the court” in legal Latin.
Pamela S. Karlan, a law professor at Stanford, said the court harmed itself by going beyond what was necessary.
“In my opinion,” 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 consent – that there are special considerations with respect to the presidency , which discourage state courts enforcing Section 3 — that could have persuaded Justices Sotomayor, Kagan and Jackson to join in. And for what?”
Professor Murray had a theory, and it did not flatter the court.
“While this decision rejects the state’s authority to invoke Section 3 in favor of Congress’s authority, in the end the real winner here is the court, which can decide when states’ prerogatives matter and when they don’t,” she said . “And the beneficiary of the court’s usurpation of power over itself is not just the court, but also Donald Trump.”
The decision in the Colorado case at least had the virtue of speed, she added. The court granted Mr. Trump’s request for review on Jan. 5, two days after he filed it. It scheduled negotiations for a month later and issued its decision a month later.
Disposing of a major case filled with novel constitutional questions in two months was exceptionally quick work by the Supreme Court’s standards.
The immunity case is much simpler and yet progresses much more slowly. True, the court was relying on what it said was an accelerated timeline when it began considering the matter 16 days after Mr. Trump asked to put the trial on hold. But that timeline required arguments about seven weeks after the court’s decision, the week of April 22.
Professor Murray said the contrast between the two cases was telling.
“The disqualification case was decided relatively quickly, which shows that the court can act quickly if it wants to,” she said. “The immunity complaint makes it clear that the court can hesitate if it wants to.”
The delay will play a role, Professor Murray said.
“It is very unlikely that the DC trial on January 6th – at least in its current form – will reach a verdict before the election begins in earnest,” she said. “That means that the court not only gave Trump an actual victory over Colorado in the disqualification case, but it also granted Trump the delay he sought — and a de facto victory on the immunity issue.”
Jack Goldsmith, a law professor at Harvard, said the justices were in an impossible position.
“Everyone on the court is acting in good faith and thinking they are being apolitical and doing the right thing,” he said. “The Court has avoided Trump and Trump-reaction madness far more than any other federal institution. But these cases involving or implicating Trump that the Court rightly considers invariably have enormous implications for the president’s policies, regardless of what or how the Court decides.”
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2024-03-05 18:44:52
www.nytimes.com