Mark Schiefelbein/AP Photo
There seems no end to the ethical questions surrounding the behavior of several Supreme Court justices, what with the endless stories of undisclosed swanky vacations and gifts, but the most shameful lapses aren’t personal, they’re institutional.
Recall that Donald Trump has been charged with multiple felonies for attempting to overthrow the government. The federal court of appeals in D.C. unanimously rejected his outlandish argument for total presidential immunity on the sixth of February, setting the stage for a trial on this multi-count indictment.
But the Supreme Court weighed in three weeks later, not only to rule it wanted to review the appeals court decision, but in a lengthy process that seems designed to ensure that the voters will not know Trump’s guilt or innocence after a trial—if one is now ever held—before they cast their ballots.
Litigants are used to hearing about the slow pace of judicial decision-making; the law’s delay is a cliché. But when the national interest plainly calls for speedy resolution of an essential constitutional conflict, as in a case like this one that features an attack on the Capitol and an attempt to set aside a presidential election, previous Supreme Courts have often responded immediately.
But with the Trump case, foot-dragging began immediately. Special counsel Jack Smith sought to have the Court resolve the immunity issue in 2023, but was rebuffed. After the court of appeals decision, the Supremes set oral argument for the immunity case in late April 2024, almost two months after taking the case on. As the main legal issue was fully briefed in the lower courts, it is nonsense to argue that lawyers needed extra time to fashion their arguments.
As of this writing, over six weeks have elapsed without a decision since the case was orally argued and formally submitted. A trial before the election, once improbable, now seems impossible.
The Court’s normal way of doing things is to delay issuing decisions until each justice who wishes to write has an opportunity to complete an opinion that may be a concurrence or dissent. That seems a sensible practice for the ordinary case, but when time is of the essence the Court has freely disregarded it.
In 1958, for instance, when the governor and legislature of Arkansas claimed the state could deny federal court orders enforcing Brown v. Board of Education, the Warren Court decided the case the day after oral argument but issued its formal opinion 17 days later.
In the famous 1971 Pentagon Papers case, it took four days for the Court to decide that the First Amendment overrode the federal government’s interest in keeping The New York Times and Washington Post from publishing documents exposing gross mismanagement in the Vietnam War. Six of the justices managed to make their views known in written opinions in those few days.
The Rehnquist Court heard argument in Bush v. Gore, the case that determined the winner of the 2000 election, on December 11, 2000. On the 12th, the Court took action that made George W. Bush president. Indeed, the current Court majority itself has made wide use of its “shadow docket” system to greatly speed up cases when it wishes.
The prompt decisions in these cases under the leadership of four different chief justices make it clear the delay in Trump v. United States is not only unnecessary but is calculated to postpone a trial until after the election, keeping what must be considered critical information from the public.
A story in the recently published memoir by retired distinguished court of appeals judge David Tatel sheds a bright light on how the Roberts Court manages the timing of its decisions. The judge tells how his court was confronting a complicated appeal by a death row inmate facing execution. As he and his colleagues wrestled with what to do and edited drafts of their various opinions, they received word from the Supreme Court that the justices were impatiently waiting for a decision in the case and would like it, if possible, within an hour.
Tatel was plainly shocked, but recognizing the superior authority of the Supreme Court, the appeals court judges complied. The Supreme Court ultimately ruled 5-4 that the execution should go forward.
The rush to judgment was particularly remarkable in that the inmate, Daniel Lewis Lee, had been sentenced to death over 20 years earlier. Perhaps the message from somewhere in the Supreme Court can be explained by Lee ultimately becoming the first federal prisoner to be executed in 17 years. The Trump Justice Department desperately wanted to renew executions, but the speed to end the litigation came from a Court that apparently can measure timing to suit its political purposes.
Trump may ultimately fail to get the capacious immunity he craves, but he has already won the delay issue and done so with the collusion of a majority of the Court. The justices hope the public will think of them as nonpolitical, just fair umpires deciding cases, as the chief justice famously said. The immunity case story makes that sort of rhetoric even less palatable than it was before. And it was barely acceptable then.
