With Trump’s SCOTUS Appeal, Justice Delayed Is Justice Denied

Sometimes the law mandates delay and no one can do anything about it. But there is nothing mandatory at all about what the Supreme Court has done with Donald Trump’s appeal. On the contrary, the decision to hear his petition for presidential immunity and delay his criminal trial for the January 6 insurrection is an affirmative choice.

When Richard Nixon’s appeal of the order to turn over his presidential tapes was pending, the Supreme Court had a choice—and it chose to act quickly. The district-court decision requiring Nixon to produce the tapes was issued on May 31, 1974. The Supreme Court agreed with a motion to skip the appeals court altogether, taking the case directly from the district court, and heard the argument 39 days later, on July 8. Just three weeks later, on July 24, it issued its opinion. Total time from the district-court decision to the final decision of the Supreme Court: 54 days.

The district court’s decision denying Trump immunity was issued on December 1, 2023. Special Counsel Jack Smith asked the Supreme Court to follow the Nixon precedent and take the case directly. The Court chose not to. The appeals court issued its decision on February 6—already 66 days later. Immediately following, Smith asked the Supreme Court to avoid further delay and let the appellate decision stand. The Court waited 22 more days, until February 28, before choosing to take the case.

And then, perhaps most remarkable of all, the Court chose to set the oral argument for April 22—54 days from its decision to take the case. The same Court that took 54 days to hear and decide Nixon’s case from soup to nuts has just scheduled 54 days of mere waiting around for briefing before oral argument—briefing in a case that has been fully briefed twice before and in which appeal arguments could be filed within a week at most. Total time from district-court decision to argument in front of the Supreme Court: 152 days.

And then, of course, the Court will choose how long it waits before issuing its decision. If the Court waits until the end of its term, usually around the end of June, that will make for a grand total of more than 200 days of process, more than half a year, and roughly four times as long as the entire Nixon appellate process.

None of this is accidental. None of this is required by law. If the Court were of the view that it needed to weigh in but wanted to avoid delay, it could have, and should have, chosen to skip the appeals stage. If it was of the view that a unanimous, well-written, narrow appellate opinion would suffice, it could have denied the petition for a hearing after the District of Columbia circuit court had issued its determination.

[Quinta Jurecic: The Supreme Court is eager to rid itself of this difficult Trump question]

But it did not. The Court took all of the steps possible to slow the processing of the appeal down as much as the law permits. The only inference one can take from this is that a majority of the Court is making a concerted effort to delay the case.

And delay breeds more delay. When the district-court proceedings were paused, just over three months remained before the March 4 trial date. Assuming that Judge Tanya Chutkan holds to a similar timeline, a Supreme Court decision on, say, June 30 would mean a trial that starts at the end of September.

Judge Chutkan has proved to be a brave and resolute jurist so far, but it would nevertheless be an impressively bold move to start a six-week trial (that’s what is predicted) just five weeks before the election. Can you imagine the reaction if Trump were forced to spend the last five weeks in a D.C. courthouse instead of on the campaign trail? The tumult? The violence? The sheer craziness of the moment? No matter how resolute she may be, Judge Chutkan seems likely to delay the trial until after the election—and that means that if Trump wins the election, the trial will never happen. (As an aside, imagine the even crazier scenario where Trump wins the election and the trial goes forward in mid-November, with a conviction coming before the electoral votes are counted. The country does not need that sort of excitement.)

The costs of the Court’s delay are thus clear—the delay in justice makes it possible that Trump will never face federal criminal charges for his role in inciting the January 6 insurrection. The Supreme Court will have been complicit in affording him the delay he so desperately desires.  

It is hard to think of a positive reason for doing so. One might offer the rosy spin that the justices have concluded that taking their time will improve their decision making. But this Court has not demonstrated that sort of concern before—on the contrary, the well-documented increase in the use of a shadow docket reveals a willingness to make consequential, divisive decisions (about immigration, COVID vaccines, gun rights, and abortion) without the benefit of lengthy consideration and comprehensive briefing.

What could possibly be different here—especially when it seems almost self-evident that the Trump criminal matter calls out, as no other case can, for prompt resolution? The Court must understand that its delay means the trial will likely not occur before the election, and the only reasonable conclusion is that a majority of the Court wants it that way.

And that, in the end, is the most terribly depressing part of this episode. Those who have seen the courts as the final guardrail against Trumpist authoritarianism now must face the prospect that they are not. Adjudication of law is becoming a Kabuki theater of politics masquerading as reason. The courts are no surcease. The only answer, if one exists, is at the ballot box. Perhaps even that will not suffice—after all, Trump has already been defeated once, and that brought no justice. But the alternative—that justice is to be permanently denied—is too grim a circumstance to contemplate.