Seeming outwardly to have acted very narrowly, even modestly for an institution that lately has been acting quite boldly, the Supreme Court in fact made profoundly important constitutional history on Wednesday evening.
It took the Court just a few days and, in the end, just 24 lines of judicial reasoning to cast aside the latest in the inventive (but not often persuasive) legal maneuvering of former President Donald Trump and his team of attorneys.
In one wordy paragraph, the Court (with only one public dissenting vote) ruled that hundreds of pages of Trump’s internal White House papers and loads of other revealing material must be turned over to the special House of Representatives committee that is investigating the violent attempt on January 6 last year to take over the U.S. Capitol and prevent Joe Biden’s victory as President.
Here, in summary, is at least some of what that could mean:
** Disclosure to that committee of internal papers, memos and emails, even tape recordings of what was happening inside the White House during the January 6 uprising – an investigative haul of a size maybe not seen since federal prosecutors got the Watergate tapes that led to the resignation of President Richard Nixon in 1974.
** Very likely, enhancing the credibility and breadth of that committee’s ultimate report on what happened that day, and the remedies it may propose.
** At least potentially, providing a foundation for criminal charges against the former President, perhaps even for the grave crimes of sedition or conspiring to overthrow the outcome of the election that he lost.
** A historic interruption in the decades-long buildup of the powers of the Presidency at the expense of Congress’s authority to monitor and regulate what happens in the government’s corridors of greatest authority.
** At the level of political discourse, possibly a serious challenge to Trumpian dominance of a major part of the modern Republican Party, perhaps even helping to thwart Trump’s own ambition to be nominated again for the Presidency (he does remain eligible, constitutionally).
What was quite remarkable about the Court having taken such a consequential action is that it did so without deciding anything at all about whether Trump, as a former President, had any legal or constitutional right to refuse to turn over the materials demanded by the January 6 committee.
How could that be? There are three answers:
First, a lower federal appeals court and a federal trial judge had both ruled that he had to turn over those materials, but neither one of them had actually sorted out all of the fundamental constitutional and legal questions that lurked in the dispute between Trump and the committee. They simply concluded that he had too weak a case to protect those materials from compelled disclosure.
Second, Trump appealed those decisions to the Supreme Court on December 23, making two requests: that the Justices grant review of those legal and constitutional questions and rule in his favor against disclosure, and that the Justices temporarily block the transfer of the materials to the committee while the case was under review.
Third, on Wednesday evening, the Court ruled only on the request for a temporary order forbidding disclosure, simply denying it less than a week after the legal filings on that request had arrived.
It did so in the brief, unsigned opinion, with Justice Clarence Thomas noting that he would have granted that request; he gave no explanation. (Justice Brett M. Kavanaugh filed a separate opinion of his own, saying he thought the appeals court was wrong, but he did not dissent from the order requiring disclosure.) As of late Wednesday night, the Court had taken no action, of any kind, on the formal appeal that Trump has pending there.
The ruling thus had come on what has come to be known as the Court’s “shadow docket” – a docket usually reserved for emergency requests for temporary orders while a case is under review. Seldom do actions on that docket do much of consequence, and often action is taken without explanation.
The current Court, however, has increasingly taken bold action on cases on that docket – most notably, allowing the state of Texas to continue enforcing the nation’s strictest anti-abortion law and refusing to allow President Biden to enforce his nationwide order for Covid-19 vaccines or testing for some 84 million American workers.
In the Wednesday ruling that may have spoken for seven and possibly eight Justices, the Court said that the case involved “unprecedented questions” that raised “serious and substantial concerns.” But, it went on, those issues had not been decided in the lower courts, noting that the appeals court, in particular, had found that Trump’s claims “would have failed even if he were the incumbent” – still in the White House.
In something of a judicial raised eyebrow over the appeals court’s opinion, the Justices said that musings by that court about Trump’s rights as a former occupant of the White House “must be disregarded as non-binding dicta.” (“dicta” is a gratuitous commentary by a court that was not necessary to decide a case, and thus amounts to something of a forbidden advisory opinion.)
This page-and-an-eighth of reasoning by the Court was used to explain the denial of the request for a temporary order against disclosure, and did not offer any of the Court’s own rationale for doing so, leaning only on the harshest comments made by the appeals court.
In the wake of the ruling, the House committee issued a statement saying that the material was already beginning to arrive in its offices.
An open question now, though, is what the Court will do with Trump’s appeal of the dispute. The legal documents to make that case ready for a decision to grant or deny review were completed Wednesday, so the Court could act on that, at any point. Since it took at least five votes to deny the request to prevent disclosure, it is hard to imagine an argument among the Justices for doing anything other than denying review now.
One possible argument, though, is that the United States Archivist, who has federal custody of Trump’s White House documents under the Presidential Records Act, is still sorting through the materials to see if more should be released to the House committee, and Trump might want to complain that his privacy is further at risk.
Moreover, his lawyers could ask the Court to send the case back to the lower courts, so that he could file an amended lawsuit seeking to shore up his arguments about his rights being violated on an ongoing basis.
It is unclear whether either tactic would be enough to prevent Trump’s appeal from being declared “moot” – that is, legally dead.