SCOTUS Puts Trump Election Interference Case on Ice

The Supreme Court has effectively derailed the main criminal case against the likely Republican nominee.

AP‘s Mark Sherman (“Supreme Court sets April arguments over whether Trump can be prosecuted for election interference“) reports:

The Supreme Court on Wednesday agreed to decide whether former President Donald Trump can be prosecuted on charges he interfered with the 2020 election, calling into question whether his case could go to trial before the November election.

While the court set a course for a quick resolution, it maintained a hold on preparations for a trial focused on Trump’s efforts to overturn his election loss. The court will hear arguments in late April, with a decision likely no later than the end of June.

That timetable is much faster than usual, but assuming the justices deny Trump’s immunity bid, it’s not clear whether a trial can be scheduled and concluded before the November election. Early voting in some states will begin in September.

The court’s decision to intervene in a second major Trump case this term, along with the dispute over whether he is barred from being president again because of his actions following the 2020 election, underscores the direct role the justices will have in the outcome of the election.

Trump’s lawyers have sought to put off a trial until after the election.

In the end, the timing of a possible trial could come down to how quickly the justices rule. They have shown they can act fast, issuing a decision in the Watergate tapes case in 1974 just 16 days after hearing arguments. The decision in Bush v. Gore came the day after arguments in December 2000.

By taking up the legally untested question now, the justices have created a scenario of uncertainty that special counsel Jack Smith had sought to avoid when he first asked the high court in December to immediately intervene. In his latest court filing, Smith had suggested arguments a full month earlier than the late April timeframe.

NYT‘s Adam Liptak (“Supreme Court Agrees to Hear Trump’s Immunity Claim, Setting Arguments for April“) adds:

The Supreme Court’s response to Mr. Trump put the justices in the unusual position of deciding another aspect of the former president’s fate: whether and how quickly Mr. Trump could go to trial. That, in turn, could affect his election prospects and, should he be re-elected, his ability to scuttle the prosecution.

The timing of the argument was a sort of compromise. Jack Smith, the special counsel overseeing the federal prosecutions of Mr. Trump, had asked the court to move more quickly, requesting that the justices hear the case in March.

Mr. Trump, by contrast, had asked the court to proceed at its usual deliberate pace and to consider the case only after he asked the full U.S. Court of Appeals for the District of Columbia Circuit to review the decision of a unanimous three-judge panel, which had rejected his claim of absolute immunity.

In settling on the week of April 22, the court picked the last three scheduled argument sessions of its current term and seemed to indicate that its decision would follow before the end of its current term, in late June.

That does not mean the trial would start right away if Mr. Trump lost. Pretrial proceedings, currently paused, must first be completed. By some rough calculations, the trial could be delayed until late September or October, plunging the proceedings into the heart of the election.

He also notes

A separate case, on Mr. Trump’s eligibility to hold office, may also have played a part. The court heard arguments in that case, from Colorado, on Feb. 8 and is expected to rule soon.

If the court rules for Mr. Trump in the Colorado case, it might be attracted to the optics of ruling against him on his claim of immunity, which legal experts say is an ambitious argument with potentially frightening implications.

In his characteristically hyperbolic style, Slate‘s Mark Joseph Stern declares, “The Supreme Court Just Gave Trump Exactly What He Wanted.”

The Supreme Court has all but guaranteed that Donald Trump will not face trial for his efforts to subvert the 2020 election before this November’s presidential election. On Wednesday, after more than two weeks’ delay, the court issued an order refusing to lift the stay that’s preventing the Jan. 6 trial, prosecuted by Special Counsel Jack Smith, from moving forward. Instead, the court took up the case, scheduling oral arguments for the week of April 22—nearly two months from now. On this timeline, the justices will probably issue a decision near the end of June. That punt gives Trump exactly what he wanted: an extended pause that will make it impossible for Judge Tanya Chutkan to hold a trial in time for the upcoming election.

If Trump wins that election, of course, he will ensure that his Justice Department halts the prosecution and dissolves the charges against him. Which means that SCOTUS has awarded him a powerful incentive to beat Joe Biden by any means necessary, and a good reason to hope that he can evade accountability for Jan. 6.

It is hard to overstate the frivolousness of Trump’s legal argument in this case. The former president claims that he has absolute immunity from prosecution for acts he took while in office, including his efforts to overturn the 2020 election. Those efforts included an alleged criminal conspiracy to nullify the outcome in multiple swing states, as well as personal participation in the pressure campaign against Congress that culminated in the violent attack on the Capitol. A cross-ideological panel of the U.S. Court of Appeals for the D.C. Circuit rejected this theory of total immunity because it is nowhere to be found in the Constitution, or the nation’s historical traditions. You can search the Constitution high and low for Trump’s theory of immunity without finding even a hint that it exists, because it does not exist. It has never existed. The former president’s lawyers know that. They made it up out of whole cloth for one purpose: They realized that, by raising a claim of immunity, Trump could halt all proceedings at the trial court until he exhausted his appeals, at which point he would be far closer to winning back the presidency.

After the D.C. Circuit’s ruling, then, the biggest question was whether SCOTUS would even entertain this obvious delay tactic. Trump sought a stay from the high court on Feb. 12. The government, through Special Counsel Jack Smith, urged the justices to simply deny the stay—or, in the alternative, to take up the case a super-expedited schedule, with oral arguments on March 4. The Supreme Court responded to these requests by doing … nothing. For more than two weeks. It just sat on the case. This extended silence raised speculation that a majority had voted to deny the stay and a few conservatives, like Justice Samuel Alito, were writing angry dissents. But now it seems the court really was just doing nothing, because SCOTUS could have issued Wednesday’s (short!) order at any point since Feb. 12. There is no reason it should have taken so long. It’s hard not to speculate that a majority was seeking to abet Trump’s plot to run out the clock.

If so, they’re succeeding. Rather than hold arguments in March, the court will hear the case toward the end of April. Some context: When the Colorado Supreme Court blocked Trump from the ballot, the court scheduled arguments much sooner, giving the parties a bit more than a month. And when, as president, Trump himself saw his agenda stymied in the lower courts, SCOTUS stepped in again and again with emergency orders in his favor. It seems that an emergency is only an emergency in need of speedy resolution when it requires Supreme Court intervention to help Donald Trump.

Playing out the next few months paints a bleak picture. By tradition, the court waits until the dissenters are finished with their opinions before handing down a decision. So even if a majority rules against Trump, and finishes its work quickly, a single dissenter like Alito can hold up the opinion until the end of June. It will take several more months to prepare for trial, and the Justice Department has a policy of avoiding any action that could affect the outcome of a race within 60 days of Election Day. So here’s how that all boils down: In the absolute best case scenario, both parties might be ready for trial by the fall. At that point, though, Jack Smith will bump straight into the Justice Department’s 60-day rule, and presumably postpone the trial until after November. Moreover, the trial itself will likely take a few months. It is now basically impossible to conceive of the trial concluding, and the jury rendering a verdict, before the election.

Appearing on MSNBC, longtime Republican Judge J. Michael Luttig questioned SCOTUS even taking the case:

Look, this is a momentous decision, just to hear this case. There was no reason in this world for the Supreme Court to take this case. The three-judge panel of the United States Court of Appeals for the District of Columbia had written a masterful opinion, denying that the president’s claims of absolute immunity under the constitution and the laws of the United States, there’s never been an argument that a former president is immune from prosecution for crimes that he committed while in office.

On a more practical level, of course, the court — the Supreme Court is capable of deciding this very quickly, in time that the former president could be tried, before the election. But today’s decision makes that that much more unlikely.

Rick Hasen, a UCLA law professor and director of the Safeguarding Democracy Project, is a bit calmer, merely asking, “Why Did the Supreme Court Wait So Long to Decide to Set the Trump Criminal Immunity Case for Full Hearing and Argument?

Like many other observers, I thought the relatively long lag time between Donald Trump’s attempt to stay his criminal trial after losing in the district court and the D.C. Circuit meant the Court was not going to grant the stay and someone was going to dissent. After all, why wait if the Court is going to actually hear the case on the merits?

[…]

What’s going on here? We cannot say for sure, but there are a few possibilities:

  1. There was an attempt to strike some kind of grand bargain (maybe between handling of the two cases* and it failed).
  2. One or more Justices who want to help Trump run out the clock kept asking for more time before the Court was ready to announce its order.
  3. These are complicated issues, and this just took time. The Court is not going to be concerned if it makes the trial impossible to bring. It’s going to take its time regardless of the consequences.

On this last point, if the Court does not issue an opinion until late June, are we really going to see the trial court put Trump on trial during the general election season (or even during the RNC convention)? I find this very hard to believe.

Early on, I called this federal election subversion case potentially the most important case in this Nation’s history. And now it may not happen because of timing, timing that is completely in the Supreme Court’s control. After all, this is the second time the Court has not expedited things to hear this case.

This could well be game over.

While I don’t know the answer to Hasen’s question, it’s hard to dispute the conclusion.

Frankly, given the novelty—and absurdity—of the blanket immunity claim, SCOTUS could simply have dismissed it out of hand, letting the lower court’s decision stand. But, if four Justices really thought it was worth adjudicating, they absolutely should have taken the case on an expedited basis given the stakes.

It’s possible that there are indeed “complicated issues” that I’m not seeing. But it’s hard to see the combination of 1) taking the case, 2) scheduling arguments toward the end of the arguments calendar, 3) not giving us any idea when they expect to issue an opinion, and 4) holding the criminal trial in abeyance in the meantime as anything other than a gift to Trump.

____________
*He’s referring here to the 14th Amendment case.

FILED UNDER: 2024 Election, Law and the Courts, Supreme Court, US Politics, , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Rick DeMent says:

    Nothing complicated about it. The courts bought and paid for Wing just gave Trump a get out of jail card. They no exactly what they are doing and did it. and If I hear any bellyaching about slow walking the Mayorkas trial, they can take that and shove it up their docket. It’s all power politics all the time now apparently. Truth be damned.

    26
  2. wr says:

    I would love to see Biden make a statement thanking the Court for seriously considering the notion that as president he is entirely immune from all laws and saying that as soon as they rule for Trump he is sending Seal Team 6 to apprehend the members of the Court who voted for it and send them to Guantanamo Bay. And of course at that point there will be nothing they can do about it, since they have ruled that he has absolute power.

    22
  3. SC_Birdflyte says:

    If John Roberts had any vestige of effective leadership skills, he would state that the court will issue its decision no later than May 22. That gives both sides time to prepare for a trial that would start no later than June 30. AFAIK, no new arguments have been, or will be, raised that would require lengthier deliberations. Time is of the essence.

    4
  4. Chris says:

    The Supreme Court is a great impediment to the pursuit of happiness for a majority of Americans. Thus, a tyranny of the minority prevails in the form of too many heartless souls wearing black robes.

    6
  5. James Joyner says:

    @Rick DeMent: Honestly, I suspect that even the Trump appointees on the court would like to see him go away and be replaced by a more appealing nominee. I can see being reluctant to rule on this matter and the Colorado case since, either way, they’ll be viewed as interfering in the presidential election. But here we are.

    @wr: The bizarre thing to me is that they will surely rule the other way. Aside from the Constitutional absurdity of the argument, it would render SCOTUS itself powerless.

    4
  6. Tony W says:

    @wr: There’s no reason Biden couldn’t send Trump down there to join them. My understanding is that Trump enjoys the warm weather. Maybe they could build him a putting green or something.

    1
  7. DK says:

    @James Joyner: The circuit court did all the heavy lifting, so if John Roberts & The Supremes were reluctant to interfere, they could’ve just let that ruling stand, no? This move seems like welcoming the headache.

    It is what it is tho. I’d much prefer to see Trump go down at the ballot box first, tbh. I don’t think repeatedly convicting Trump before the elections would hurt him as much as polls say, voters are just as likely to start feeling sorry for him. And acquittals would surely help him. The drip, drip, drip of unresolved legal issues and Trump’s typically unhinged responses may be worse for him.

    If he loses the election, and in Fulton County or federal court, he’s going to be commuted or pardoned by Kemp and Biden anyway. I still would love to see Drama Queen Donnie lose the election then hear those guilty verdicts.

    6
  8. Kathy says:

    @Tony W:

    Of course there’s a reason. Dead men are not imprisoned.

  9. Kathy says:

    @James Joyner:

    Honestly, I suspect that even the Trump appointees on the court would like to see him go away and be replaced by a more appealing nominee.

    With all due respect, we’ve been hearing how just about every Republiqan politician of any importance, save a few krazies, want Lardass gone since 2015. They’ve had so many chances to get rid of him in the last 8 years, and squandered or even fought each one, that I stopped believing it.

    Either, 1) they’re okay with him or with the results he produces (including over a million dead from COVID), or 2) they want to be rid of him without getting rid of him (ie they’re too cowardly for words).

    Whichever it is, the end result is all Lardass all the time, taking more direct control of his party. And what they say about it behind closed doors, or how they feel, has zero effect on what actually matters.

    Fuck them all.

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  10. CSK says:

    @Kathy:

    I know what you mean, and I understand how you feel, but I think a lot of the Republican cowardice can be attributed to genuine fear of what the MAGAs might do to them and their families. A not inconsiderable number of Trumpkins are crazy and violent.

    6
  11. Scott F. says:

    It’s on the voters to remove him. It was clear it would come to that when the Senate acquitted him a second time.

    4
  12. DrDaveT says:

    @James Joyner:

    The bizarre thing to me is that they will surely rule the other way.

    You’re missing the point, James. Of course they will rule the other way. They have found a way to do so that prevents Trump from being prosecuted prior to the election. Len Leo bought a Court that is a wholly-owned subsidiary of the GOP, and he’s getting his money’s worth. Real jurists would have simply refused to hear the case.

    12
  13. Michael Reynolds says:

    Congress is failing. The Supreme Court is corrupt and partisan. And a POS has a very good chance of running the executive branch next year. The United States government is falling, and it’s anyone’s guess whether it can get up.

    12
  14. CSK says:

    @Paul L.:

    The article to which you’re trying to link is blocked.

  15. Kathy says:

    @DK:

    He went down on the ballot box in 2020. less directly in 2018 and 2022. It makes no difference if his enablers keep enabling him.

    @Scott F.:

    The voters already did in 2020. Why should they keep saving the country and the world?

    BTW, I would urge judge Chutkan to schedule the trial as though the election, and the election results, were irrelevant to the proceedings. In fact, they are irrelevant to the proceedings.

    A lot of people charged with crimes, justly or not, have jobs, family and social obligations, that have to be put on hold or abandoned to face charges. The damage the defendant might cause if accommodated, should not lead to accommodation.

    12
  16. Chip Daniels says:

    @James Joyner:

    I suspect that even the Trump appointees on the court would like to see him go away and be replaced by a more appealing nominee.

    People keep saying that. But I don’t see any evidence of it being true. I wonder if this is just one of those things that is so disturbing to contemplate, that we invent all sorts of reasons why it can’t possibly be true.

    17
  17. Beth says:

    @James Joyner:

    The bizarre thing to me is that they will surely rule the other way. Aside from the Constitutional absurdity of the argument, it would render SCOTUS itself powerless.

    I think I might have figured out what they are doing. Other than Alito and Thomas, the rest of the GOP wing of SCOTUS is only protecting Trump to protect down ballot Republicans. Alito and Thomas are for sure protecting Trump, but the rest probably figure that if Trump gets convicted a WHOLE lot of people (for honestly bizzare reasons) are likely to punish everyone with an R next to their name.

    Personally, I don’t think its going to matter because I’m 100% confident we’re gonna get another banger from Alito in Mipfisterone case. It wouldn’t surprise me if a whole lot of Republicans trip over their own dicks to outlaw IVF and contraception. Along with bringing back the full might of the Comstock act. This is going to be the summer of stupid.

    6
  18. Jax says:

    @CSK: Hahaha….linkie so bad normal people’s internet browsers go “Nope”. Ironically fitting, given the source.

    4
  19. Scott says:

    @Beth: You bring up the Comstock Act. I’ve always wondered about all these court cases that involve obsolete and dangerous laws (abortion laws, insurrection act, etc.) and ask why does no one go and update these laws and make them more relevant to today or even make them go away all together. No, they’ll be used and then the politicians will complain about them as if they have to agency to do something.

    4
  20. Scott F. says:

    @Kathy:

    The voters already did in 2020. Why should they keep saving the country and the world?

    You answered your own question in your comment. Republicans in power are either all in for authoritarianism and very cowardly and as @CSK: notes, their cowardice is not without reason – the GOP is crazy and violent.

    Trump invited the deplorables to let their freak flags fly and it’s pretty clear the Trumpists like being on the loose. The second Trump impeachment was the best possible moment for the Republican “establishment” to rid themselves of Trump (as James suggests many are keen to do) and they punted. The pols put it on the courts (the line McConnell and others pushed when they voted to acquit) and, lo and behold, the Republicans on the courts are cowards too.

    I also believe the rightists on the courts are open to a good measure of authoritarianism as long as the power sits to their side.

    6
  21. Matt Bernius says:

    On one hand, this is a big enough issue that I think the Court should weigh in on this.

    However, there are two huge points of frustration here. First is the slow walking to the announcement of cert. That seems largely determined to slow down the overall process.

    The second was the Court’s rejection of Smith’s request from December to skip the circuit and have this heard by the Supreme Court. If the high court always intended to put their imprimatur on this, then there was no reason for the lower court to rule on this.

    To Hansen’s point, both those decisions feel like they were designed to delay the criminal trial as long as possible. And frankly I don’t see how the justices can think that said delay is in the interest of the voting public.

    Honestly, this sets up the conditions for a true constitutional crisis if the trial extends into the post-election period–especially if Trump wins the election and is ultimately found guilty on these federal charges before January 6th.

    10
  22. becca says:

    @Paul L.: yes, Donald Trump does threaten courts and judges and their families and has most definitely undermined our justice system. Surprised you agree.

    6
  23. Michael Reynolds says:

    @Matt Bernius:
    There won’t be a constitutional crisis if Trump wins. He’ll fire Jack Smith, and have his AG kill the case. Then, the Trump DoJ will begin political prosecutions against Democrats across the board. And don’t for a minute assume the court will shoot down Trump’s claim of immunity for all his actions. SCOTUS, like Congress, will do whatever it takes to maintain a Christo-fascist regime. You should place as much trust in this Supreme Court as Dredd Scott placed in the Taney court.

    13
  24. @Matt Bernius: I think it reflects a deep lack of seriousness on the Court.

    As you note, they have had numerous chances to expedite this, and it clearly needs to be, and yet here we are.

    14
  25. becca says:

    @Beth: I’m waiting for a call for the return to chattel marriage and revoking a woman’s right to credit. This is not hyperbole.

    5
  26. Franklin says:

    @Michael Reynolds: I think Matt was only saying if he was found guilty before his inauguration. But then again, even if he’s found guilty, when do the ramifications (sentencing) come into play? If they don’t keep him out of office, then yes he can just undo everything then.

  27. Matt Bernius says:

    @Michael Reynolds:

    There won’t be a constitutional crisis if Trump wins. He’ll fire Jack Smith, and have his AG kill the case.

    You are forgetting (as we sadly learned in 2020/1) that there is a period between Election Day and the inauguration.

    If Trump is elected, that doesn’t necessarily mean that the Biden DoJ, during the lame duck period, stops the prosecution. Especially if the SC finds that Trump was acting outside of the scope of his office.

    Would Biden do that? I have no idea–I can see strong arguments going either way at the moment.

  28. Matt Bernius says:

    @Steven L. Taylor:

    I think it reflects a deep lack of seriousness on the Court.

    Agreed. I’d also add cowardice.

    I also think it’s a cases where–along with some of the ways that Garland has handled these investigations–an attempt to be performatively “apolitical” ends up doing far more institutional damage while providing little to no institutional benefit.

    10
  29. steve says:

    Matt- Not how it will work. If he is elected and Smith decides to start the trial right after the election you can be sure Trump’s lawyers will claim that an incoming president is immune or some other reason for delay. SCOTUS will agree to hear the case in February.

    Steve

    5
  30. Kathy says:

    @Michael Reynolds:

    There won’t be a constitutional crisis if Trump wins.

    Of course not.

    You need to have a constitution that is observed in order to have a constitutional crisis.

    11
  31. gVOR10 says:

    @Kathy:

    or 2) they want to be rid of him without getting rid of him (ie they’re too cowardly for words).

    @CSK:

    but I think a lot of the Republican cowardice can be attributed to genuine fear of what the MAGAs might do to them and their families.

    There are two wings to the Republican Party. For lack of better terminology, the Koch fueled wing and the MAGA wing. If you prefer: traditional, establishment, RINO, “moderate”, whatever v “populist”. The Koch people would prefer Trump gone, but prefer the worst GOP, Trump, to the best Dem. And, they don’t want their fingerprints on Trump’s demise.

    “They” want Trump gone and would prefer Haley. But “they” aren’t going to stick their heads up to do anything about it. It’s a collective action problem. It’s more feckless than fear of violence to their families, it’s fear for their cushy jobs. Liz Cheney, Adam Kinzinger, others, and now probably Mitch McConnell have lost their careers for opposing Trump. And the Supremes are no better. They’ll find he’s not immune but delay it until it’s moot wrt/ Trump. And the Court as an institution will come out of it with its reputation damaged, but not nearly as badly as they deserve.

    3
  32. gVOR10 says:

    @Matt Bernius:

    You are forgetting (as we sadly learned in 2020/1) that there is a period between Election Day and the inauguration.

    Three months. In our legal system nothing is going to happen in three months. And a Federalist dominated SCOTUS awaiting the coronation of a GOP dictator is going to make sure nothing happens. The mills of our justice system grind slowly, but they grind exceedingly slowly.

    2
  33. DrDaveT says:

    @Matt Bernius:

    And frankly I don’t see how the justices can think that said delay is in the interest of the voting public.

    Have you ever seen any evidence that Alito, Thomas, Barrett, or Kavanaugh cares one iota about the interest of the voting public? That’s not who they work for.

    7
  34. Matt Bernius says:

    @gVOR10:

    Three months. In our legal system nothing is going to happen in three months.

    Provided they are through jury selection, which is entirely possible and probable–the trial could easily be over and done within those three months. And that’s the opinion of most Federal Law experts.

    1
  35. Jay L Gischer says:

    Over at Emptywheel, they bring up that the Circuit Court didn’t really address a particular kind of matter. Consider that the president orders a drone strike on an individual. If he weren’t president that would be murder, but it probably shouldn’t be as president. But suppose that drone strike killed a child, say the daughter of said target, who is very young. Should that count as murder?

    This happened, with Anwar al-Alwaki and his daughter, during Trump’s term.

    I can see where the Supreme Court might want to clarify a situation such as this.

    3
  36. CSK says:

    @gVOR10:

    True, but bear in mind that a lot of Republican Congress members were in the Capitol on Jan. 6, 2021, and they witnessed first hand how violent and crazy the rioters were. The insurrectionists built a gallows to hang Mike Pence, which I believe they’d have done had they gotten their hands on him. There were those two women who vowed they were “going to find Nancy Pelosi and put a bullet through that bitch’s brain.”

    Had it been me, I’d have been alarmed. And I might stay alarmed.

    3
  37. wr says:

    @Matt Bernius: “And frankly I don’t see how the justices can think that said delay is in the interest of the voting public.”

    If this Supreme Court had any care for the interests of the voting public, they wouldn’t be so persistent about wiping out the Voting Rights Act. There are only six votes that matter in this country, and that’s the way they want it.

    3
  38. James Joyner says:

    @Jay L Gischer: Anwar al-Alwaki was ordered assassinated in 2011, in Obama’s first time, not by Trump.

    3
  39. Kathy says:

    @Jay L Gischer:

    I can see where the Supreme Court might want to clarify a situation such as this.

    Easy.

    Option one: there is a justified need to use lethal force and even a legal framework to back it up. Lardass orders the military to take out one target, and they do. It’s not murder. It’s war.

    Option two: There is no justified need to use lethal force nor a legal framework to back it up. Lardass orders the military to take out the target. If they do, it’s murder. If they refuse to obey, it’s attempted murder.

    Option three: There is no justified need to use lethal force nor a legal framework to back it up. Lardass buys a drone and some ammo and kills someone. That’s first degree murder.

    Tell Clarence not to call collect.

    3
  40. Jay L Gischer says:

    @James Joyner: Ok, I apparently misinterpreted this quote:

    I think SCOTUS may have been uncomfortable with the DC Circuit’s thin treatment of Trump’s argument that, without immunity, former Presidents could be prosecuted for things like approving the drone strike on Anwar al-Awlaki (note, when Trump raises this, he never mentions that he himself killed Awlaki’s daughter).

    2
  41. Jay L Gischer says:

    @Kathy:

    Well, there’s no reason they should pay any attention to the likes of you (or me), since you aren’t a graduate of either Yale or Havard Law School. Which means you know absolutely nothing of value about the law.

    I don’t know how they tolerate such a wannabe as Amy Coney Barrett on the Court.

    1
  42. Kathy says:

    @CSK:

    Good thing then Nancy Pelosi, all the Democrats in Congress, and a small but not insignificant number of Republicans were not alarmed enough to keep from impeaching Lardass, and voting to convict in the Senate.

    What alarms Republiqans is that what happened to Liz Cheney may happen to them. You know, loss of their office, and the power, and privileges attached to it.

    4
  43. CSK says:

    @Kathy:

    Oh, I’m not denying that. But it’s legit to be scared of homicidal lunatics.

    1
  44. James Joyner says:

    @Jay L Gischer: I wrote about the issues involved for The Atlantic in 2011 and The National Interest in 2013. The pieces look prescient in hindsight, in that I was worried about the power in the hands of a President constrained by the normal order; it’s positively scary with Trump in the Oval.

    2
  45. Beth says:

    @Jay L Gischer:

    This isn’t how our version of the common law system works. To reach something like that they would have to reach FAAAAAAR beyond the facts of this case. Trump isn’t accused of doing anything like that. I’m pretty sure that no American president has ordered a drone strike against a U.S. Citizen on U.S. Territory. Even an a less dramatic assassination would be an issue.

    The analogy for what you are suggesting would be if Alito used the Dobbs opinion to say that Roe was improperly decided AND because of that everything that came before or after Roe (Griswald, Loving, The Gay cases) were also automatically overruled. The Court isn’t supposed to use one case to decide every possible fact pattern.

    1
  46. Jay L Gischer says:

    @Beth: Yeah, they aren’t “supposed to”, but that won’t necessarily stop them. The Senate is “supposed to” hold votes on Supreme Court nominees, too. Remember how that turned out?

    This is, I think the fruit of literalism. “It doesn’t say I can’t do that.” There’s no established rule so it must be ok, right?

    I am quite uncertain over how many votes there are on the court to overturn gay rights type rulings. I expect there’s no appetite at all to overturn Loving. These are far more solidly in the scope of the 14th Amendment than Roe was, even though I think “compelling state interest” is an important test to just about any law we make.

    1
  47. wr says:

    @Jay L Gischer: “I don’t know how they tolerate such a wannabe as Amy Coney Barrett on the Court.”

    What, they’re going to make their own coffee?

    2
  48. Gustopher says:

    When there is no faith in the rule of law, that’s when the pitchforks come out. Or the tikki torches.

    I think SCOTUS has a majority in favor of tikki torches.

    It takes 4 votes to grant cert. It takes John Roberts to drag it out for two weeks before granting cert and schedule it for 7 weeks away. And Roberts is the “reasonable” conservative on the court.

    5
  49. al Ameda says:

    I believe it takes at least 4 justices to agree to take up a case. Assuming that the 3 liberal justices plus John Roberts declined, it’s an easy guess as to which of the remaining justices wanted to take this up – Alito, Barrett, Gorsuch, and Kavanaugh – and Thomas didn’t have to play his hand regarding taking this up.

    Make no mistake, this is The Alito Court.

    4
  50. dazedandconfused says:

    I’ve reached the point of wanting to see this election. Trump has been unequivocal on his desire to be above the law, so if We The People, in anything even remotely near a majority, re-elect him with that plainly on the table…

    2
  51. DeD says:

    @wr:

    I would love to see Biden make a statement thanking the Court for seriously considering the notion that as president he is entirely immune from all laws and saying that as soon as they rule for Trump he is sending Seal Team 6 to apprehend the members of the Court who voted for it and send them to Guantanamo Bay. And of course at that point there will be nothing they can do about it, since they have ruled that he has absolute power.

    The most underrated comment of the day.

    4
  52. @Matt Bernius:

    I’d also add cowardice.

    I also think it’s a cases where–along with some of the ways that Garland has handled these investigations–an attempt to be performatively “apolitical” ends up doing far more institutional damage while providing little to no institutional benefit.

    1,000,000,000,000,000,000,000,000,000,000%

    2
  53. DeD says:

    @Chip Daniels:

    I wonder if this is just one of those things that is so disturbing to contemplate, that we invent all sorts of reasons why it can’t possibly be true.

    The 2016 election comes to mind. We, collectively, believed there was no way Trump would win. We were wrong af.

    3
  54. DeD says:

    @al Ameda:

    Make no mistake, this is The Alito Court.

    Indeed. Alito is the evil avatar that always and ever springs to mind whenever I read/rant about or discuss the SC.

    2
  55. wr says:

    @DeD: I’m honored!