Adding a few weeks of delay to federal courts’ decision on ex-President Donald Trump’s attempt to avoid a criminal trial for the January 6 2021 violence at the Capitol, the Supreme Court on Friday opted to stay on the sidelines of that controversy, at least for now.
In a one-sentence order issued in early afternoon, the Court turned down Special Prosecutor Jack Smith’s plea that the Justices take on immediately Trump’s sweeping claim of immunity to being prosecuted. There was no explanation, and there were no recorded dissents – although the Justices did not disclose how they voted so a unanimous vote cannot be assumed.
Under a practice the Court apparently has been following for at least 40 years, it would have taken a minimum of five votes to accept review of this case because it is simultaneously pending in a lower appeals court, and the Justices would have had to bypass that level in order to get involved themselves now. Ordinarily, when a case reaches the Court in a regular progression from lower courts, it only takes four votes to grant review.
By allowing the appeals court to proceed on Trump’s immunity, Friday’s brief order means that the issue probably will not return to the Supreme Court until late January at the very soonest, and that would be just weeks before the former President’s January 6 charges are scheduled to go to trial, now set to begin on March 4.
A three-judge panel of the appeals court in Washington is now scheduled to hold a hearing on the case on January 9; Friday’s order from the Supreme Court allows that to go ahead. Even assuming the panel reaches a decision quickly, Trump’s legal team would still have the option of trying to get any decision against him reconsidered by the full 11-member appeals court, and that could add further delay before returning to the Supreme Court.
Trump, of course, has a strong interest in stringing out the judicial process, because he is actively running for President again and wants to gain as much support in next year’s primary elections before he faces the risk of a criminal conviction. His legal team has tried repeatedly to get judicial calendars stretched out, perhaps even after next November’s election.
Because the Court is now dominated by a six-Justice conservative majority, some of its critics will surely suggest that the Court bypassed review on Friday to assist Trump’s strategy of delay. Except for those on the Court or their staffs, however, no one can say for certain why the Justices took the step.
Among other reasons that might have figured in the action:
• A genuine desire to have the immunity issue developed more fully in lower courts before the Justices took it on. The issue is, of course, of profound importance, legally and politically, but the Justices have used the fast-track mode that they avoided this time in a number of high-profile cases in recent years, so this showed some hesitancy.
• The Court has a heavy schedule of hearings already set for January, including one of the most important cases of this term on the powers of federal government agencies to make wide-ranging use of their powers. The Justices may have wanted to concentrate on those tasks, knowing that the Trump immunity issue would likely return fairly soon, anyway.
• The Court also may soon be drawn into a plea for it to review the new Colorado Supreme Court ruling declaring that Trump is constitutionally disqualified from running for President or for any office because of his role in the events leading to the January 6 assault on the Capitol. The Justices may have wanted to avoid being over-loaded with Trump controversy, crowded together on a pressured schedule.
• If the vote to stay on the sidelines was, in fact, unanimous, it is possible that the Court wanted to show that it will deal with issues involving Trump without deep divisions among them, being aware of the risk of appearing split along partisan political lines.
The reality for the Court, though, is that it cannot stay on the sidelines of Trump-related controversy for long, because a host of sharply contested constitutional questions surround the multiple prosecutions of the former president, and final answers to those can only be given by the Court.
Similarly, the question of Trump’s constitutional eligibility even to be a candidate is pending in courts in 14 other states, beyond Colorado, and that, too, can only be settled definitively by the Justices.