I’ve Lost My Respect For the Supreme Court

I lost whatever little remaining respect I had for the Supreme Court of the United States this week.  The nine justices no longer stand, even a little bit, for the rule of law.  All that they stand for is raw political power.  Both in granting review of the D.C. Circuit’s Trump immunity ruling, and then in the way they went about scheduling it, they have put their thumb on the scale in their support of the former President’s bid to be re-elected in November.  It is shameful.

On the merits, the D.C. Circuit’s ruling was right down the middle of the judicial fairway.  It didn’t deserve a grant of review on that basis.  The relevant precedents are three.  In Nixon v. Fitzgerald, a case I was involved in as a junior associate, the Court established the principle that the President was immune after he left office from civil suits for damages for actions taken in his official capacity while in office. (The decision also furthered the doctrine of qualified immunity for other officials.)  In United States v. Nixon the Court established that even a sitting President was subject to criminal process, in that case a grand jury subpoena seeking the Watergate tapes.  Longstanding Department of Justice policy has insulated a President from actual prosecution while in office, and while that policy is not a Supreme Court precedent, such a prosecution has never been attempted.  In the Paula Jones case the Court found that even a sitting President was subject to civil process for matters predating his time in office (ruling in part that careful judicial supervision of discovery could protect against abuse and disruption of the President’s duties, which immediately became farcical as the ensuing deposition of President Clinton led to his perjury about Monica Lewinsky and his ensuing impeachment).

So, a President is immune for civil liability for damages for actions taken in his official capacity, but is still subject to suits for his actions taken prior to taking office (and presumably after leaving that office), and he is subject to criminal process while in office for actions taken while in office, even if under Justice Department policy he can’t actually be prosecuted while serving in office.  Therefore, under existing precedent, and Justice Department policy, a sitting President is subject to criminal process while in office, and while he may not actually be prosecuted while in office he should be subject to prosecution after he leaves office for actions taken while serving in office.  Pretty clear.

That a former President should be subject to such process also seems foundational to the very concept of the rule of law.  At the oral argument in the D.C. Circuit, Trump’s counsel responded to the hypothetical about the former President having ordered an assassination by Navy Seal Team 6 of a political opponent by arguing, astoundingly at least to me, that he would be immune from any such action.  (A better response might have been that such a direction was so far beyond the pale that it could not be an official act within the scope of his authority, but I get why the former President doesn’t want to make that argument, as undermining a democratic election also seems pretty unauthorized.)  If we believe in the rule of law, and that all persons are equal before the law and subject to the law, how can a former President be immune?  The concept is antithetical to our most basic principles.  And, what is the purpose of subjecting the President to any criminal process at all, as was the ruling in United States v. Nixon, if he is completely immune from any prosecution at any time ever?  Is United States v. Nixon about to be overruled?  I doubt it, but maybe.  

Like I said, the D.C. Circuit’s ruling was right down the middle of the fairway and doesn’t deserve to be reviewed.  No circuit split, no reason to take the case in the first place.  And, immunity isn’t in the text of the Constitution and wasn’t ever debated in the Constitutional Convention, so it is hard to fit into the textualist or originalist frameworks that a majority of the justices claim to profess.

But while the Supreme Court’s decision to grant review seems misguided, the Court really stepped into the political arena in its scheduling determination.  The Court set argument for the last week in April, which is the last week for scheduled arguments in the Court’s current Term, which leads logically to a June opinion.  And, it put on hold any proceedings in the District Court before Judge Chutkan until then.  Given all the things that have to happen in the District Court for the case to be ready for trial, that makes it all but impossible for the trial to be held prior to the election.  Polls indicate that many voters want to know before the election whether they are voting for a convicted felon or not, but now they can’t know that crucial piece of information.  It is impossible to imagine a bigger thumb being placed on the scale.  And all nine justices know it.  That is the Court engaging in raw power politics, plain and simple, under the guise of a scheduling order.

Clearly the Supreme Court, like any court, has the discretion to manage its docket and set schedules for litigation.  But the Court has the capacity to act faster.  It certainly did so in United States v. Nixon.  It also did so in the Pentagon Papers case, and in Bush v. Gore.  It does so every time it takes action on its shadow docket.  It even acted faster in the Insurrection Clause ballot eligibility case that came out of Colorado (although there has been no decision to date in that case).  But here the Court is choosing to act deliberately, not even “with all deliberate speed” to use the phrase from Brown v. Board of Education.  Delay is Trump’s goal, in this case as it is in all of his judicial proceedings.  The Supreme Court of the United States is playing directly into politics by facilitating his judicial goal.  The Court’s thumb is on the scale.

And why, when the Court injects itself into politics, does the Court always rule for the Red Team?  I suppose this isn’t quite as bad as Bush v. Gore, where the Court effectively appointed the President.  Here the voters will still get their say.  But it’s still very bad for the Supreme Court to be behaving this way.  The Court didn’t have to use its scheduling discretion to favor Trump so blatantly.  

History will be the judge of the Court’s behavior, and the judgment of history will, I believe, be harsh.

For shame.

                                                                                     Richard P. Swanson

                                                                                     President-Elect, NYCLA

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The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.