A Scrambling SCOTUS
On Friday, December 22, 2023, the U.S. Supreme Court issued a one-line decision denying Special Counsel’s Jack Smith petition for an emergency appeal regarding Trump’s claim of Presidential immunity. The Court’s ruling seems to be in sharp contrast to the incredible speed at which it had initially responded to Smith’s petition. It is also puzzling because over the past four years the Court has granted nineteen such requests, none of which involved issues of comparable national importance or as time sensitive. These contradictions raise questions as to why it was done without explanation or even a dissent by one or more of the Court’s liberal justices.
My first reaction was to investigate what might have changed the Court’s seeming inclination to grant Smith’s request between the time it was submitted and the time the Court rejected it. Two things immediately came to my mind: (1) the D.C. Circuit Court had announced that it was accelerating its schedule for hearing Trump’s appeal of Judge Chutkin’s denial of his motion to dismiss the January 6th litigation and (2) the Colorado Supreme Court had reversed Judge Wallace’s decision and had held that Trump was precluded by the Constitution’s Disqualification Clause from again serving as our nation’s president.
The acceleration in the D.C. Circuit’s schedule meant that a decision as to whether Trump enjoys immunity in the January 6th case could be rendered as early as mid-January. This would allow the case to still be tried in advance of the presidential nominating conventions to be held this summer and well before the fall elections. Such a conclusion, however, has one major flaw. Even if the D.C. Circuit does render a decision affirming Judge Chutkin’s order by mid-January, the timing of when the case will actually be ready for trial is, to a large extent, in Trump’s (and not the courts’) hands.
Trump can be expected to appeal any adverse decision to the entire D.C. Circuit and he will have 14 days in which to file his petition for an en banc hearing. Even if the D.C. Circuit summarily rejects that appeal, Trump would have another 90 days in which to submit a petition for review by the U.S. Supreme Court. Accordingly, even if the appellate panel hearing Trump’s appeal acts promptly and the entire D.C. Circuit Court and the U.S. Supreme Court do likewise, Trump acting alone could delay the case from even beginning until at least June 2024 and that even assumes that the stay prohibiting any further action by Judge Chutkin is lifted while Trump is playing his delaying games. Moreover, if that stay is not lifted, it could be August before Judge Chutkin would be in a position to start the trial and by that time Special Counsel Smith would be prohibited from proceeding by the DOJ’s rules for prosecuting cases that might affect the outcome of an election.
The Supreme Court in denying Special Counsel’s Smith’s emergency petition was undoubtedly aware of Trump’s desire to delay the trial of that case. His court papers in opposition to Smith’s petition said as much. Moreover, Trump has a long history of delaying justice. Thus, if this intervening event is what caused the Court to deny Smith’s petition for an emergency appeal, its motivation could have simply been an effort to throw Trump a lifeline. That possibility, while not inconsistent with some of the Court’s prior decisions involving Trump, does not seem likely as it should have evoked cries of “foul” from the Court’s three liberal justices who remained noticeably silent. At least one newspaper OpEd article, however, has suggested that the absence of a dissent to this ruling might also be explained as an attempt to prevent a further erosion of public confidence in the Court’s already sullied reputation.
Still, a more likely motivation for the Court’s action was the Colorado Supreme Court’s decision, the first decision in the nation to find that Trump is disqualified from being re-elected. The issue in that case has a much greater and more immediate effect on the outcome of the 2024 election. It, therefore, seems likely that according it top priority would appeal to all members of the Court and could explain why Justices Sotomayor, Kagan and Jackson did not dissent from the Court’s denial of Smith’s petition.
This rationale seemingly assumes that the Court is inclined to affirm the Colorado Supreme Court’s decision which a number of pundits have opined is unlikely. They argue that the Court will not issue a ruling that would upset a substantial percentage of Americans who still hold the Court in high esteem. Nor would they rule in a manner that takes an election out of the hands of the voters. Framing the issue in that way, however, effectively rewrites the Constitution which is seemingly abhorrent to the Court’s majority who embrace “originalism” as their basis for interpreting the Constitution. Undermining that argument is the fact that “originalism” is a highly dubious judicial interpretative doctrine contrived in the 1980s to enable right-wing jurist to dismantle the administrative state. Accordingly, it would NOT be shocking if the Court were to simply set originalism aside in a case in which it proves inconvenient.
Even assuming that the Court is standing ready to affirm the ruling of the Colorado Supreme Court, that possibility could be foiled should Trump reconsider his plan to appeal the Colorado court’s decision. In that eventuality, the Colorado Supreme Court’s decision would only impact the election in Colorado, a state which Trump may not win in any event. Militating against this possibility is the fact that the courts in the swing states of Wisconsin, Michigan and Nevada might follow the lead of the Colorado court taking the election out of Trump’s reach unless he summons the Supreme Court to his rescue.
My guess is that Trump will trust his fate to the U.S. Supreme Court, hoping that it will either fashion a rationale for not applying the Disqualification Clause to him or, as it has done in the past, simply defer its decision until after Trump has had a chance to again occupy the White House. The only thing that seems certain is that the Court’s flagging reputation is likely to continue on its downward trajectory.