The Supreme Court Is Not Going to Save Us From Donald Trump

Just when it seemed former President Donald Trump was about to face accountability for attempting to overturn the results of the 2020 election, the Supreme Court has come to his rescue. The bailout arrived on February 28 in the form of a two-paragraph order announcing the court would review Trump’s claim of absolute immunity in the election-subversion prosecution brought by Special Counsel Jack Smith.

Even if the court rules against Trump on the merits of the immunity claim—by no means a certainty—its decision to take up the issue will likely delay Trump’s trial until after the 2024 election. If Trump wins, he will have the power to order his new attorney general to drop the case. He will also be able to halt Smith’s Mar-a-Lago documents prosecution and invoke the Constitution’s “Supremacy Clause” to pause any remaining state prosecutions.

Years from now, historians will look back on the high-court’s bailout as a key inflection point in the decline of democracy and the rule of law.

If the court valued democracy more than Trump’s political interests, it would have declined to review his immunity claim and endorsed the February 6 decision of the District of Columbia Court of Appeals.

Apart from deepening the preexisting divisions in America, Trump’s principal accomplishment in office was remaking the Supreme Court. Guided by lists of potential candidates assembled by the Federalist Society and the Heritage Foundation, Trump placed three young doctrinaire “originalists” on the bench to create a six-three conservative supermajority. His goal was to drive the country toward the radical right, using the reconstituted court to overrule Roe v. Wade; expand gun rights; undermine environmental protections; deconstruct the “administrative state;” and destroy affirmative action. Above all, Trump transformed the court to give himself a “get out of jail free” card should he ever need one.

The Supreme Court cloaks itself in secrecy and may seem to operate in ivory tower isolation. But the justices are seasoned political operatives. Three of the current court’s Republicans—Chief Justice John Roberts, Brett Kavanaugh, and Amy Coney Barrett—worked as young attorneys on the GOP side of the litigation that led to the judicial coup d’état of Bush v. Gore. They understand the intersection of law and politics, and they know their roles.

All nine justices also know that Trump’s principal defense strategy in the pending prosecutions against him is centered on delay. The benefits of delay in the run-up to November are clearest in Special Counsel Smith’s election-subversion case, but can also be seen in the Mar-a-Lago case. As former federal prosecutor Shan Wu wrote last year in the Daily Beast:

Donald Trump learned the value of delay from the infamous attorney Roy Cohn—who had been Sen. Joseph McCarthy’s chief lawyer during the witch-hunt for communists conducted in the 1950s… Cohn delayed a civil rights lawsuit [filed in 1973] against Trump and his father, Fred Trump, for two years before the case settled… For criminal defense lawyers, delay is nearly always their friend. Memories fade with time, evidence grows stale, and—in Trump’s case—elections happen.

The Supreme Court’s February 28 order scheduled oral arguments on the immunity issue for the week of April 22, its last week of hearings for the 2023-24 term. Meanwhile, all proceedings before District Court Judge Tanya Chutkan, a no-nonsense jurist unbowed by Trump’s bullying, have been “stayed,” or frozen, effectively vacating the March 4 trial date she had previously set.

Assuming the court follows established procedures and issues its opinion by July 1, and assuming further that it rejects the immunity defense, the case will be remanded to Chutkan. At that point, there will be additional pretrial motions and discovery to complete, estimated by some commentators to take around 90 days, and another estimated 90 days to conduct the trial itself. This means the trial likely would commence in late September or early October, after early voting had begun in parts of the country, and conclude in December or early January. Any trial that late in the election cycle arguably would conflict with longstanding Justice Department policy that cautions against taking actions that could influence the outcome of an election. It is doubtful that even a judge as courageous as Chutkan would proceed at the risk of triggering widespread protests and chaos.

It is also possible the Supreme Court could endorse some aspects of Trump’s immunity defense and send the case back to the Court of Appeals for further review, a complication that would delay the trial even more. The court’s February 28 order creates this possibility by framing the immunity issue in extremely broad terms: “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.”

If the court valued democracy more than Trump’s political interests, it would have declined to review his immunity claim and endorsed the February 6 decision of the District of Columbia Court of Appeals, which unanimously rejected the claim of absolute immunity. At the very least, the Supreme Court should have restricted the issue to whether a former president’s attempt to overthrow a lawful election deserves immunity.

As it stands, there is no excuse for the court’s lethargic pace. When it has the will, the court is fully capable of acting quickly. In Bush v. Gore, the court took all of four days from the filing of George W. Bush’s emergency petition to holding oral arguments and rendering a decision.

Reaction to the court’s bailout of Trump among left-leaning and centrist observers has ranged from stunned disbelief to apoplectic condemnation. “[SCOTUS] will prematurely hear a completely frivolous claim that if sustained, would allow any POTUS to commit crimes with almost unbridled immunity,” wrote former U.S. attorney Richard Signorelli in a set of posts on X. “This will delay his federal 1/6 trial indefinitely. A political and traitorous decision from a totally discredited SCOTUS.”

“I don’t think it’s sunk in with people that Trump is asking the Dobbs Court to rule that he’s literally above the law and they apparently might do it,” wrote journalist Matthew Yglesias in another X post, referring to the court after its 2022 decision (Dobbs v. Jackson Women’s Health Organization) that overturned Roe.

No post on X more succinctly expressed the outrage than one by The Nation’s Elie Mystal, who exclaimed: “April twenty fucking second. Fucking April twenty second, man. The fuck. What the actual fuck?”

Driving these and other hot-tempered reactions is the sobering reality that the Supreme Court is not going to save us from Donald Trump and the fascist movement he has spawned. We are going to have to save ourselves.