The US Supreme Court Cannibalizes Its Own Legitimacy

On February 28 the Supreme Court of the United States did what many legal experts thought  improbable:  it decided to consider Donald Trump’s arguments that American presidents are immune from criminal prosecution for any acts committed while they are in office.

That is, in effect, that presidents’ behaviors while in office are beyond the reach of our laws, that the Rule of Law–the bulwark of our democracy that asserts that laws apply equally to everyone without fear, favor, or position–is simply suspended for the most powerful individuals in the nation, that in fact presidents do enjoy the rank privileges of monarchs and despots.  The nation’s founding generation fought a war to ensure against this result.

One would think that the Court’s justices would cringe at such a notion, not least because it suggests that they themselves could be vulnerable to the punitive machinations of an angry president.  As the old boxing saying goes, protect yourselves at all times, men and women of the Court!

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In agreeing to hear this case, the Supreme Court tendered a lifeline to Trump.  It is an extraordinary move, and one can only imagine this particular Court making it.  But more on this Court’s “uniqueness” below.

The Court scheduled arguments from both sides on the merits of Trump’s appeal for April 25, and froze the proceedings in the federal criminal case against him on charges that he plotted to overturn the results of the 2020 presidential election (the “January 6” case), which he lost.  This timing suggests that the Court’s final decision may not come until June.  Assuming that, plus trial preparation time required after June, the trial itself would not begin until September or October, only weeks before the November presidential election in which Donald Trump is again the presumptive Republican candidate.

Given the delay, special federal prosecutor Jack Smith could even determine not to begin the trial at all before the election.  These same possibilities will also similarly defer Smith’s other federal trial against the former president, that one involving Trump’s illegally taking and keeping classified government documents at his Florida home when he left the White House in January 2020, and even obstructing the Government’s efforts to retrieve them.

Either way, the Court’s decision to hear the case means that voters are now much more likely not to know whether Trump has been convicted–essentially of insurrection and of being an unprecedented threat to the nation’s national security–when they go to the polls in November.

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In effect, the delay imposed by the Supreme Court is akin to an in-kind political contribution to the Trump campaign.  Were he convicted before the presidential election–and he is very likely to be convicted ultimately–voters on the fence are considerably more likely to shy from voting for a felon with a record of crimes against the nation.

Despite all the media attention to the events on January 6, the detailed hearings in Congress on those events, and the assortment of offenses the former president has been recently found in civil courts to have committed–sexual assault, defamation, decades-long business fraud–none of it appears to be registering significantly in current polls showing that Trump is statistically tied with Biden in people’s preferences for the presidential election this coming November.   

In fact, a recent YouGov survey finds that almost half of the American voters surveyed had “little or no comprehension of the allegations against” Trump in the two federal criminal cases and the two state criminal cases in which he was indicted in 2023.  Highly publicized criminal trials would certainly spread this awareness and could influence voting decisions.

Early evidence that the Supreme Court’s intervention into the former president’s immunity appeal may suppress voters’ awareness of his criminal exposure is found in a series of recent polls.  They show that the percentage of registered voters who think Trump committed serious federal crimes rose in 2023 when the criminal indictments were brought against him, but that this percentage has declined since last December.  (It also shows a strong majority of Democrats believe this, while only a fifth of Republicans do so.)

In a tight election, such differences can matter.

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That the Supreme Court decided to hear this case at all offends justice.  That is because the former president’s claims of immunity from criminal prosecution range only from the silly to the nonsensical.¹  The saying that “Justice delayed is justice denied” is as true as it is old.  The Court has done nothing more here than delay justice, perhaps fatally should Trump win re-election before the completion of any of his criminal trials.

His immunity arguments have been thoroughly discredited in decisions by both the trial judge in the January 6 case, Tanya Chutkan, and the three-judge panel of the federal Court of Appeals for the District of Columbia circuit that heard Trump’s appeal of her decision.  Judge Chutkan concluded only what should be obvious:  that the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”

In rejecting his arguments, the Court of Appeals unanimously and similarly asserted that they violated basic truths about our legal system.  The judges wrote that “It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.”

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Despite the utter lack of merit in the former president’s claims of immunity, that this Supreme Court decided to take the case is less surprising than it should be.  After all, this is the Court that overturned 49 years of settled precedent in deciding that women had no Constitutional right to abortion in the United States,² a decision that reversed females’ rights to their bodily autonomy and private healthcare decisions.  It is the Court with three  appointees selected by Trump precisely for the purpose of overturning the 1973 Roe v. Wade decision, with two of the appointments having been effectively stolen from Democratic presidents by then-Senate Majority Leader Mitch McConnell.³

And it is the Court that has refused to police the unethical, self-dealing behavior of its own members.  Most notably, investigative reporting has found that two of the justices, Clarence Thomas and Samuel Alito, have received substantial gifts from billionaires who have financial interests in cases before the Court this term.  Both justices have refused calls to recuse (remove) themselves from the cases in which they have such manifest conflicts of interest, and the Court itself has no mechanism for removing them.

Importantly, this includes the Trump immunity case.  Justice Thomas’s wife, Ginni Thomas, was closely involved in the Trump Administration’s efforts to overturn the 2020 election.  Thus far, however, Thomas has not recused himself for this clear conflict of interest in the immunity case.⁴

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The legitimacy of the U.S. Supreme Court may be approaching its breaking point.  Deciding to hear Trump’s frivolous immunity claims, and in the meanwhile to halt the criminal trial on his efforts to overthrow the will of the people in the 2020 election, suggests little more than that the Court has decided to support Trump’s efforts to delay his trials or their results until after the November election, if not after his being sworn into office again, should he win the White House.  Which could give him license to end the cases or pardon himself for any federal convictions.

That’s because it seems improbable that the Court could have anything seriously jurisprudential–or legal–in mind in intervening in the matter.  Its decision to hear the case seems merely political. Were this impression widespread over a long period of time, the Supreme Court will have lost its Constitutional legitimacy, the public trust that the Court serves as a fair, neutral arbiter in disputes about basic rights and duties in a democracy.

In fact, Gallup Poll data show that Americans’ confidence in the Court has been declining over the past half-century, and reached its low point in 2022.  In the early 2000s about half of Americans said they had a “great deal” or “quite a lot” of confidence in the Supreme Court.  By the 20-teens, that percentage had dropped generally into the mid-30s.  By 2022, following the Court’s overturning of abortion rights, the number reached the Court’s historic low in such public confidence at 25 percent, five points lower than the previous low.

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Politics have shaped the Supreme Court for generations.  What’s different today–what has so quickly eroded the Court’s standing as an independent branch of government rather than as merely an extension of the two overtly political branches–is our increasingly hard-set bipolar politics.  It is instructive to recall that the Court’s 1973 opinion legalizing abortion in the Roe case was written by Justice Harry Blackmun, who had been appointed to the Court by Republican president Richard Nixon.⁵

The Court’s vote legalizing abortion was 7-2.  Five of the seven in favor were appointed to the Court by Republican presidents.

 

 

 

 

 

 

 

1. One of the silliest claims made by Trump and his lawyers is that he cannot be prosecuted for acts for which he has been acquitted in the Senate’s impeachment trial, saying that so prosecuting him would violate the Constitution’s Fifth Amendment that prohibits “double jeopardy,” or trying someone again for crimes for which s/he has already been acquitted in criminal court.  This “glosses over” the inconvenient fact that an impeachment trial in Congress is not a criminal proceeding.[↩]
2. Dobbs v. Jackson Women’s Health Organization, 2022.[↩]
3. In unprecedented moves, McConnell violated longstanding Senate norms twice to steal nominations from Democratic presidents.  He denied President Obama his nomination of Merrick Garland 10 months before the end of the Obama Administration, and President Trump nominated Neil Gorsuch instead just days after he took the oath of office for the presidency.  Then McConnell rushed to approve the nomination of Amy Coney Barrett in the Senate just days before Trump was voted out of office on November 3, 2020, a nomination that should have been that of incoming President Joe Biden.[↩]
4. Nor did he recuse himself in the Court’s decision in Trump v. Anderson, in which the Court this month reversed the Colorado Supreme Court’s decision to remove Trump from the Colorado ballot in the 2024 election for his violation of Section 3 of the 14th Amendment for committing insurrection against the United States.[↩]
5. A personal note:  30 years ago Blackmun’s granddaughter babysat for our son.  But I never met the justice.[↩]