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Notes -
Since tomorrow is the last (so far) scheduled day for releasing opinions by the Supreme Court of the United States I wanted to take some time to contrast the court's treatment of a pair of cases this term. These cases are Trump v. Anderson and Trump v. United States. The former case is the case out of Colorado about Trump's ballot eligibility. The latter case is the case out of the DC Circuit concerning Trump's claim to presidential immunity for his actions on Jan 6th 2021. I can't compare the reasoning in the opinions of the two cases (we still don't have a decision in the immunity one) but one thing I, and other court watchers, think is suggestive is the timeline of each of these cases. I link to SCOTUSBlog above because they provide a convenient timeline that I'll reproduce here.
In the case of Anderson the petition for cert was filed on January 3rd and granted on January 5th. Oral argument was scheduled for February 8th and the decision was issued March 4th. That's 61 days from petition for cert to decision, which is incredibly quick by SCOTUS standards. The nature of the case makes this understandable. After all, it's a question about whether a major party's chosen candidate can be on the ballot in one (and perhaps many) states. The decision was also unanimous which likely goes some way to explaining the short turn around from oral argument to a decision.
In the case of United States the petition for cert was filed on February 12th and granted on February 28th. Oral argument was scheduled for April 25th and we still do not have a decision yet. Note that just the time from granting cert to oral argument is almost as long (57 days) as the entirety of Anderson, from cert to decision. This also ignores the fact that the special counsel filed a motion for cert before judgment all the way back on December 11th 2023, which SCOTUS declined. This decision is also strange. Is there any decision the District of Columbia Court of Appeals could have issued that SCOTUS would not have granted cert on? This effectively added three months to the case (the appeals court issued its decision on February 6th) for what seems like little reason. There is some expectation that this case should take longer because there is likely much more dissent among the justices as to the correct outcome compared to Anderson, but this fact does not explain actions like the long wait until oral argument or declining the petition for cert before judgement. One would think the criminal trial of an ex-president who is also a candidate would be a pressing matter but the justices don't seem to think so.
I am not the first court watcher to note that that SCOTUS seems to move quickly or slowly depending on which one seems to operate more to Trump's benefit. Nearing the end of the term and with no decision yet in the immunity case makes me take a bit more conspiratorial perspective on the whole thing though. As I mentioned above tomorrow is the last scheduled day for releasing opinions and they still have opinions outstanding in 18 cases argued this term. They have been issuing opinions at a rate of 3-4 per scheduled opinion day this term so dropping 18 of them tomorrow seems unlikely. The most likely outcome is they schedule more opinion days next week and possibly the week after but it's possible they don't issue a decision in the Trump immunity case this term. There is a rather famous case where SCOTUS did not issue an opinion in the term it was argued. Instead releasing the opinion the next term, almost a full year after it was first argued.
The conspiracy angle on this is that SCOTUS doesn't issue a decision in United States v. Trump this term, instead waiting until after the November election. This ensures no action in Trump's criminal trial before the election. It also means some control over the most direct beneficiary of their decision. Perhaps if Trump wins in November we get a sweeping ruling immunizing large swatches of conduct. Perhaps if Biden wins we get a much narrower ruling immunizing a very small sphere of conduct.
Yes, probably. The Roberts faction on the court absolutely doesn't want to have to wade into Presidential immunity questions unless they're forced to, but the lower opinion here is incredibly broad, completely dismissing virtually any Presidential immunity from (federal) criminal prosecution, and that was condoned by the appeals court. I'd find it funny, in a number of ways, were it to actually become the standing law, but it's as close to forcing SCOTUS to handle matters as possible.
I am not convinced. As best I can tell the court of appeals is correct that there is no precedent for criminal immunity for the president. Even if they had decided to make up some line I'm skeptical the line they made up would be one that satisfied 6/9 of the justices on the Supreme Court.
And where once the closest thing to a serious criminal prosecution of a president was a speeding ticket, now there's precedent saying there is zero criminal immunity for anything.
I'm skeptical that Roberts, Barrett, and Gorsuch would have jumped at an interlocutory appeal had the lower court precedent not writ destiny that they'd be seeing two or three Presidents facing criminal charges within their remaining terms.
I'm curious what you think the content of the circuit's decision would be so that SCOTUS doesn't grant cert.
If the circuit says "there exists some presidential immunity for constitutionally granted powers but Trump's conduct is outside that" do you think they grant cert?
I think a district court opinion that actually tries to separate individual official acts from those of a private actor or political candidate, and recognizes the extent various immunities are intended to protect the papers and deliberations of official acts, would made it much harder from Trump to get cert. A lot of courtwatchers who like Trump even less than I do take that tack.
There's no guarantees, but without that blanket permission slip for charging every other living President, there's just nowhere near the urgency. Whether criminal or not, the majority of acts in the indictment here fall outside of the outer bounds of the President's roles, some even by Trump's own defense's own admissions. There's none of the time pressures that were present for the ballot rules, so on. I don't think it would have been good to punt, but this court absolutely is willing to punt whenever possible.
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