Opinion | Is the Supreme Court Running Out the Clock on Trump’s Immunity Case? – The New York Times
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Guest Essay
Ms. Litman is a professor at the University of Michigan Law School, a host of the “Strict Scrutiny” podcast and a former clerk to the Supreme Court justice Anthony Kennedy.
For those looking for the hidden hand of politics in what the Supreme Court does, there’s plenty of reason for suspicion on Donald Trump’s as-yet-undecided immunity case given its urgency. There are, of course, explanations that have nothing to do with politics for why a ruling still hasn’t been issued. But the reasons to think something is rotten at the court are impossible to ignore.
On Feb. 28, the justices agreed to hear Mr. Trump’s claim that he is immune from prosecution on charges that he plotted to subvert the 2020 election. The court scheduled oral arguments in the case for the end of April. That eight-week interval is much quicker than the ordinary Supreme Court briefing process, which usually extends for at least 10 weeks. But it’s considerably more drawn out than the schedule the court established earlier this year on a challenge from Colorado after that state took Mr. Trump off its presidential primary ballot. The court agreed to hear arguments on the case a mere month after accepting it and issued its decision less than a month after the argument. Mr. Trump prevailed, 9-0.
Nearly two months have passed since the justices heard lawyers for the former president and for the special counsel’s office argue the immunity case. The court is dominated by conservatives nominated by Republican presidents. Every passing day further delays a potential trial on charges related to Mr. Trump’s efforts to remain in office after losing the 2020 election and his role in the events that led to the storming of the Capitol; indeed, at this point, even if the court rules that Mr. Trump has limited or no immunity, it is unlikely a verdict will be delivered before the election.
The immunity case is not the only big case hanging fire. Some two dozen remain undecided that were argued even before the April 25 oral argument over Mr. Trump’s immunity. A case on gun rights for domestic abusers under a restraining order was argued in November; cases involving the power of federal agencies and a multibillion-dollar settlement for opioid victims were heard in December and January; the court also has yet to decide whether upwind states must cut emissions that affect the air quality in downwind states. That case was argued in February.
The court is a busy place, though the justices are completing decisions at the second slowest rate since the 1946 term, according to a recent article in The Wall Street Journal. The court tries to wrap up its business for the term that began in October by the end of June. It’s not shocking that cases argued later in the term end up being decided later, especially because by the end of April, when the immunity case was heard, the court was still working to finish cases argued months earlier. April was also among the court’s busiest months: The justices heard 10 cases.
But these seemingly mundane, process explanations overlook some of the particulars in the immunity case. Mr. Trump’s lawyers put together a set of arguments that are so outlandish they shouldn’t take much time to dispatch. Among them is the upside-down claim that, because the Constitution specifies that an officer who is convicted in an impeachment proceeding may subsequently face a criminal trial, the Constitution actually requires an impeachment conviction before there is any criminal punishment.
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