Ask Jordan: Why was the Supreme Court so focused on what-ifs in Trump’s immunity claim?

During the Supreme Court’s immunity arguments, a majority of the Supreme Court seemed more concerned with the future what-ifs than the here and now. Is there anything that constrains them to confine themselves to the question before them? If they cannot do that in this case, we stand to lose our right to hear Trump’s other trials before the 2024 election.”

— Lori G., Kansas City, Missouri

Hi Lori,

The only thing constraining the Supreme Court is the late Justice William Brennan’s “rule of five.” With five votes, the liberal justice said, you could accomplish anything. And with six “conservative” justices on today’s court, they can afford to lose one of their own and still form a right-wing majority. This imbalance is a good advertisement for court packing but, getting back to your inquiry, I don’t think that straying from the question presented is the biggest problem in Trump v. United States. Rather, the issue is the delay that the court’s handling of the case has already given the defendant.

First off, we should remember that the question presented is: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” That’s a fairly broad subject, not confined to Trump’s case alone. And that breadth isn’t unusual. The court is theoretically concerned with the implications of the rule that it fashions going forward, as opposed to the particulars of the case before it. That’s how Republican-appointed justices likely soothed themselves in dodging discussion of the allegations against their party’s de-facto leader (who has pleaded not guilty in all four of his criminal cases). Instead, they focused on loftier notions. As Trump appointee Neil Gorsuch said at the hearing, they are writing a rule “for the ages.”

Of course, the court doesn’t always do that. Recall Bush v. Gore, which tipped the 2000 election to the Republican. The court stressed there: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” The April 25 hearing in Trump’s case showed that today’s justices (some of whom worked as lawyers on the Bush side of that 2000 case) think that presidential immunity likewise “presents many complexities.” But here we are, on the precipice of a soaring ruling for the history books (one that may, once again, just so happen to benefit Republicans).

The justices can’t ignore the impact that their choices had in delaying this case from going to trial.

Whatever judicial philosophy the court claims to follow in Trump v. United States, the justices can’t ignore the impact that their choices had in delaying this case from going to trial. Those choices include declining in December to take up the immunity issue early on at the government’s request; granting Trump’s appeal in February instead of letting the case go to trial in March (it could have already been tried by now); setting a leisurely late-April hearing (the appeal could have already been decided as well); and now, embarking on crafting an immaculate decision “for the ages,” while the clock ticks toward an election whose outcome could lead to Trump crushing this very case if he returns to the White House.

The problem, then, is the court treating this case in some respects like a normal one while, at best, ignoring the reality lurking within. Regardless of whether we have a “right,” as you put it, to Trump’s trials before the election — and I’m not so sure we do, for reasons I can explain another time — the Supreme Court’s actions have made such a trial in his Jan. 6 case increasingly less likely.   

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