Typically the regulation mandates delay and nobody can do something about it. However there’s nothing obligatory in any respect about what the Supreme Courtroom has achieved with Donald Trump’s enchantment. Quite the opposite, the choice to listen to his petition for presidential immunity and delay his prison trial for the January 6 rebel is an affirmative alternative.
When Richard Nixon’s enchantment of the order to show over his presidential tapes was pending, the Supreme Courtroom had a alternative—and it selected to behave shortly. The district-court choice requiring Nixon to provide the tapes was issued on Might 31, 1974. The Supreme Courtroom agreed with a movement to skip the appeals court docket altogether, taking the case instantly from the district court docket, and heard the argument 39 days later, on July 8. Simply three weeks later, on July 24, it issued its opinion. Complete time from the district-court choice to the ultimate choice of the Supreme Courtroom: 54 days.
The district court docket’s choice denying Trump immunity was issued on December 1, 2023. Particular Counsel Jack Smith requested the Supreme Courtroom to comply with the Nixon precedent and take the case instantly. The Courtroom selected to not. The appeals court docket issued its choice on February 6—already 66 days later. Instantly following, Smith requested the Supreme Courtroom to keep away from additional delay and let the appellate choice stand. The Courtroom waited 22 extra days, till February 28, earlier than selecting to take the case.
After which, maybe most outstanding of all, the Courtroom selected to set the oral argument for April 22—54 days from its choice to take the case. The identical Courtroom that took 54 days to listen to and determine Nixon’s case from soup to nuts has simply scheduled 54 days of mere ready round for briefing earlier than oral argument—briefing in a case that has been totally briefed twice earlier than and wherein enchantment arguments may very well be filed inside every week at most. Complete time from district-court choice to argument in entrance of the Supreme Courtroom: 152 days.
After which, in fact, the Courtroom will select how lengthy it waits earlier than issuing its choice. If the Courtroom waits till the top of its time period, often across the finish of June, that may make for a grand whole of greater than 200 days of course of, greater than half a yr, and roughly 4 instances so long as your complete Nixon appellate course of.
None of that is unintended. None of that is required by regulation. If the Courtroom have been of the view that it wanted to weigh in however needed to keep away from delay, it might have, and may have, chosen to skip the appeals stage. If it was of the view {that a} unanimous, well-written, slender appellate opinion would suffice, it might have denied the petition for a listening to after the District of Columbia circuit court docket had issued its willpower.
But it surely didn’t. The Courtroom took the entire steps doable to sluggish the processing of the enchantment down as a lot because the regulation permits. The one inference one can take from that is {that a} majority of the Courtroom is making a concerted effort to delay the case.
And delay breeds extra delay. When the district-court proceedings have been paused, simply over three months remained earlier than the March 4 trial date. Assuming that Choose Tanya Chutkan holds to an identical timeline, a Supreme Courtroom choice on, say, June 30 would imply a trial that begins on the finish of September.
Choose Chutkan has proved to be a courageous and resolute jurist to date, however it will nonetheless be an impressively daring transfer to begin a six-week trial (that’s what’s predicted) simply 5 weeks earlier than the election. Are you able to think about the response if Trump have been compelled to spend the final 5 weeks in a D.C. courthouse as a substitute of on the marketing campaign path? The tumult? The violence? The sheer craziness of the second? Irrespective of how resolute she could also be, Choose Chutkan appears prone to delay the trial till after the election—and that signifies that if Trump wins the election, the trial won’t ever occur. (As an apart, think about the even crazier state of affairs the place Trump wins the election and the trial goes ahead in mid-November, with a conviction coming earlier than the electoral votes are counted. The nation doesn’t want that kind of pleasure.)
The prices of the Courtroom’s delay are thus clear—the delay in justice makes it doable that Trump won’t ever face federal prison costs for his position in inciting the January 6 rebel. The Supreme Courtroom could have been complicit in affording him the delay he so desperately needs.
It’s laborious to think about a optimistic motive for doing so. One may provide the rosy spin that the justices have concluded that taking their time will enhance their choice making. However this Courtroom has not demonstrated that kind of concern earlier than—quite the opposite, the well-documented improve in using a shadow docket reveals a willingness to make consequential, divisive choices (about immigration, COVID vaccines, gun rights, and abortion) with out the good thing about prolonged consideration and complete briefing.
What might presumably be completely different right here—particularly when it appears virtually self-evident that the Trump prison matter calls out, as no different case can, for immediate decision? The Courtroom should perceive that its delay means the trial will possible not happen earlier than the election, and the one affordable conclusion is {that a} majority of the Courtroom needs it that means.
And that, ultimately, is essentially the most terribly miserable a part of this episode. Those that have seen the courts as the ultimate guardrail towards Trumpist authoritarianism now should face the prospect that they don’t seem to be. Adjudication of regulation is turning into a Kabuki theater of politics masquerading as motive. The courts aren’t any surcease. The one reply, if one exists, is on the poll field. Even perhaps that won’t suffice—in spite of everything, Trump has already been defeated as soon as, and that introduced no justice. However the various—that justice is to be completely denied—is just too grim a circumstance to ponder.
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