The Supreme Court just handed Trump a win

Even if the Court ultimately rules against Trump, by delaying his prosecution they've already helped him avoid accountability

Official White House Photo by Andrea Hanks

Although I think the direction the Supreme Court will take America on any number of matters is extremely predictable as a general matter, I do not like making predictions about specific cases.¹ And so I won’t predict the Court’s ultimate decision in the Trump immunity case it just decided to hear. But I will say the Court’s decision about whether Trump has immunity from prosecution for his attempts to subvert the 2020 election might not matter nearly as much as the Court’s decision to hear the case, and the timeline on which the Court decided to do so.

For the sake of argument, let’s say the Court concludes that Donald Trump’s absurd claim that he is immune from prosecution is, in fact, absurd.² It could happen: Even a broken clock is right twice a day, and even the Supreme Court is right twice a year. In such a scenario, the everything-is-fine crowd will rush to praise the Court for upholding the rule of law and the principle that no one is above it.

This will be nonsense.

What the Supreme Court has actually done, already — regardless of its ultimate decision in the case — is push the timeline for Trump’s trial out far enough that it is unlikely to be resolved before election day. That both deprives the American people information about his guilt prior to election day and creates the very real possibility that Trump could re-take the White House and then use his power as president³ to halt his own prosecution.

Last year, special counsel Jack Smith asked the Supreme Court to decide the question of Trump’s immunity immediately rather than waiting for an appeals court to weigh in.⁴ The Supreme Court refused, effectively delaying Trump’s trial for months. Three weeks ago, the appeals court ruled that no, of course Trump is not immune from prosecution. And today the Supreme Court announced that, as was always inevitable, it will hear the case — but not until April 22, delaying Trump’s case at least two more months.

In reality, the delay will likely be much longer. Who knows when the Court will get around to issuing a decision. May? June? July? Whenever it comes, you can bet Trump’s political allies will argue it would then be too close to election day to begin the trial and push for a delay next year. A nonsense argument but here’s something I am willing to predict: It will be echoed and amplified by countless media, political, and academic elites, who have all along been wildly uncomfortable with the notion of Trump actually facing legal consequences for his actions.

As Vox’s Ian Millhiser noted:

This order is a colossal victory for Trump, and could potentially allow him to evade criminal responsibility for his attempts to overthrow the 2020 election altogether. Trump’s goal is to delay his trials until after Election Day. Should he prevail in that election, he can then order the Justice Department to drop all federal charges against him.

And so even if the Court ultimately reaches the obviously correct conclusion that Trump is not immune from prosecution, it has orchestrated a timeline that could, in effect, grant Trump immunity from prosecution. The praised the nation’s op-ed pages will heap on the Court for toothlessly reiterating the rule of law will be salt in the wound.

All of this reminds me of last year’s Allen v. Milligan decision, in which the Supreme Court rejected Alabama’s appeal of a district court ruling that its gerrymandered congressional maps violated the Voting Rights Act. That decision led to some pundits portraying the (deeply anti-voting-rights) Court as having upheld voting rights; the New York Times’ Tom Edsall even went so far as to argue that “If Democrats win back the House, they will have John Roberts to thank” because throwing out the GOP’s illegally-gerrymandered maps would help Democrats. This overlooked the timeline of the case, and the crucial fact that in February of 2022, the Supreme Court issued a stay of the district court ruling and forced the illegally-gerrymandered maps to remain in place for the 2022 elections. That action — the Supreme Court stepping in to allow Alabama to use districts the Court would later acknowledge were illegally-gerrymandered — handed Republicans control of the House of Representatives in 2022.

The bottom line in Allen v. Milligan was that the Supreme Court caused the 2022 elections to be contested using district maps the Court eventually acknowledged violated the Voting Rights Act, handing Republicans control of Congress in the process. Not by deciding a case badly, but by creating a timeline that benefited Republicans regardless of how it ultimately decided the case. And after doing so it basked in undeserved praise for protecting voting rights, and was even wrongly portrayed as helping Democrats.

With today’s move in the Trump immunity case, the Court is again giving Republicans a huge undeserved political victory, even if it ultimately rules against Trump. It’s just another way the Republican politicians on the Court are playing chess while many court observers think they’re watching checkers.

1. For reasons both good and bad, clear and quirky, the Court may dispose of a particular case in a way that is inconsistent with its overall trajectory. I’m quite confident that, directionally, the Republican supermajority on the Court is going to curtail reproductive and sexual rights and limit the government’s ability to combat climate change and make it harder for people — particularly people of color — to vote. But I’m wary of predicting the outcome of specific cases even relating to these topics; the Court has too much discretion to do whatever it wants, whenever it wants. Plenty of people who know far more about jurisprudence than I do don’t share my hesitation to make such predictions. They’re also wrong a lot.

2. How absurd? A Trump attorney actually argued in an actual court of law that Trump is so immune from prosecution that even if he ordered the assassination of a political rival as president, he could not be prosecuted unless he was first impeached and convicted by Congress. Which, of course, would mean that he could simply order the assassination of members of Congress with impunity. Not great!

3. Both the actual powers of the presidency and additional made-up powers he is likely to claim for himself. And who will tell him he doesn’t have them? This Supreme Court? Come on.

4. Smith’s position was essentially that whichever side lost at in the appeals court would obviously ask the Supreme Court to overturn the ruling, so the high court should simply cut out the middle man and get to a resolution as quickly as possible so the case could proceed in a timely manner.