Politics
The Supreme Court uses its own calendar as a weapon to benefit Donald Trump
Today, the Supreme Court will hear what may be one of the least important arguments in modern history.
I am of course referring to Trump v. U.S. case asking whether former President Donald Trump is immune from federal criminal prosecution stemming from his failed attempt to overturn President Joe Biden's victory in the 2020 election.
This is one of the most closely watched cases the Supreme Court has heard in recent times. For the first time in American history, a former president faces criminal charges. And these accusations are far-fetched, alleging that Trump targeted our democracy itself.
So why is this argument so inconsequential? The answer is that Trump has already won everything he could reasonably hope to get from the Supreme Court, and then some.
Even this Supreme Court, with its Republican-appointed 6-3 supermajority, is unlikely to accept Trump's argument that former presidents enjoy broad immunity from criminal prosecution. Trump's lawyers didn't even try to hide the implications of this argument. When the case was heard in a lower federal court, a judge asked Trump's lawyer whether the former president was immune from prosecution even though he ordered SEAL Team 6 to be assassinated a political rival.
Trump's lawyer responded that Trump was immune unless he was first impeached and convicted by the Senate.
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If you're curious about the legal arguments in this case, I've delved into them here. But again, that’s just a sideshow. Trump's goal is to delay his trial as long as possible, ideally, from his perspective, until after the November election.
And in this regard, the Supreme Court has already given him what he wanted. As long as this case is brought before the judges, this trial cannot take place. And the justices have repeatedly refused special prosecutor Jack Smith's requests to decide this immunity question on an expedited timetable that would ensure Trump's criminal trial could still take place before November.
This decision to slow down Trump's appeal is part of a much larger pattern within this Supreme Court:
Judges do not always need to rule in favor of a conservative party on the merits to achieve a conservative result. They can do this simply by manipulating their own calendar.
How the Court uses its calendar to benefit right-wing litigants
By eagerly handling Republican litigants' requests, while dragging their feet when a Democrat (or someone suing a Republican) seeks Supreme Court review, the justices can and have handed out big victories to right-wing causes while by sabotaging the liberals.
Before the Trump case reached the Supreme Court, this penchant for schedule manipulation was particularly evident in immigration cases.
Under the Trump administration, lower courts often issued rulings blocking the former president's immigration policies, and the Court (often due to the dissent of several Democratic-appointed justices) moved relatively quickly to remit Trump's policies in place.
In Barr v. East Bay Sanctuary (2019), for example, after a lower court blocked a Trump administration policy excluding many migrants from the asylum process, the Court reinstated that policy about two weeks after the administration asked him. Likewise, in the case of Wolf v. Cook County (2020), the Court reinstated a Trump administration policy targeting low-income immigrants just eight days after Trump's lawyers sought relief from the justices.
However, once Biden took office, the Court hit the brakes. In August 2021, for example, Judge Matthew Kacsmaryk, a Trump appointee known for issuing poorly reasoned decisions implementing right-wing policy preferences, ordered the federal government to reinstate a Trump-era immigration policy known as Remain in Mexico. Although the Supreme Court ultimately overturned Kacsmaryk's decision, it sat on the case for more than 10 months, effectively letting Kacsmaryk dictate the country's border policy during that time.
Similarly, after another Trump-appointed judge overturned a Biden administration memo setting out Immigration and Customs Enforcement priorities, the Court waited about 11 months before finally step in and restore the administration's long-standing authority to set priorities for law enforcement agencies.
The fact is, even in cases where judges ultimately conclude that a conservative litigant should not prevail, they often hand that litigant a significant victory by sitting on the case and allowing a Republican policy to stand. in force for sometimes more than a year. (Given the slow pace of most litigation, this is perhaps not particularly remarkable, except for the marked difference in how the Court has handled lawsuits against Trump and Biden policies. ) The Court's ability to set its own timetable allows it to manipulate American policy without actually endorsing lower court decisions that cannot be defended on the merits.
The courts’ behavior in the Trump immunity case is a close cousin of this tactic. Again, it's hard to even imagine this Supreme Court ruling that presidents can commit crimes with impunity. But the Court does not need to explicitly declare that Trump is above the law to place him above the law.
All he has to do is extend his claim to immunity for as long as possible.
This story originally appeared in Today, Explained, Vox's flagship daily newsletter. Subscribe here for future editions.
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