The Supreme Court’s Inexplicable Failure To Issue A Timely Opinion On Trump Immunity

On March 4, 2024, 25 days after hearing oral argument, the Supreme Court issued its opinion in Trump v. Anderson.

In that case, the Court ruled favorably for former President Donald Trump, holding that he could not be kept off the Colorado primary ballot based on the 14th Amendment’s insurrection provision.

Today, 25 days after hearing oral argument, the Supreme Court has failed to give the same expeditious treatment to Trump v. United States.

This is the Jan. 6 criminal case brought against Trump for his alleged attempt to overturn the results of the 2020 presidential election. Trump has claimed that as a former President he has absolute immunity for actions he took while President.

The Court is expected to reject Trump’s claim of absolute immunity and remand the case back to District Judge Tanya Chutkan for further consideration of the immunity issue.

But the Court has already seriously endangered the ability to have a trial in the case before the election and each day that goes by without a Supreme Court decision increases the threat to a timely trial.

Voters have a right to know whether or not Trump is guilty or innocent of the unprecedented criminal charges of an attempted presidential coup against him before they vote in November.

Every additional day that goes by increases the suspicion that one or more Justices are intentionally slow-walking this case to support Trump’s goal of pushing his trial past the election.

If he wins in November, Trump will quickly order the Justice Department to drop the case.

The Supreme Court’s failure to move quickly on Trump’s appeal began in December 2023 when Special Counsel Jack Smith asked the Court to take the case on an expedited basis and the Court refused.

In February, the Court ultimately agreed to hear Trump’s appeal and scheduled oral argument for April 25.

It’s now late May — nearly a month since oral argument and five months since the immunity issue was first raised — and the Court has yet to issue a decision.

There is no excuse for taking so long on a case that has such importance to the country.

The issue of slow-walking the case by one or more of the Justices became all the more suspicious in light of the recent report of a U.S. flag flying upside down — a symbol of the MAGA “Stop The Steal” movement — at Justice Samuel Alito’s house in the days immediately following January 6.

Even if, as Justice Alito claims, his wife was responsible for flying the flag, the Justice failed to quickly remove it.

The message sent by the flag at Alito’s home represents a clear and troubling appearance of pro-Trump bias by Justice Alito and requires he recuse himself from the Trump immunity decision.

Justice Clarence Thomas also should have recused himself from the case from the outset. Justice Thomas has a clear and troubling appearance of a conflict of interest in the case stemming from his wife’s active involvement in the Trump effort to overturn the 2020 election.

Here’s how we got here.

In December, Judge Chutkan ruled that Trump was not entitled to immunity in the Jan. 6 criminal case. Recognizing that the Trump legal team would appeal any ruling denying Trump immunity, Special Counsel Jack Smith petitioned the Supreme Court to fast track the immunity case, bypassing the D.C. Circuit Court’s appeal process. On December 22, the Supreme Court rejected Smith’s petition.

The case continued to move through the appeals process and, on February 6, the D.C. Circuit Court of Appeals panel unanimously upheld Chutkan’s decision denying immunity to Trump.

On February 12, Trump, as expected, appealed.

The Supreme Court continued its inexplicable leisurely pace, waiting 16 days before agreeing to hear Trump’s appeal. It scheduled oral argument for April 25, the last day of its session and 57 days after agreeing to hear the case.

The Court has failed to give the case the same expedited treatment it gave the pro-Trump Colorado primary ballot case, when it reached a decision in that case 25 days after oral argument.

The failure to give expeditious treatment to the Trump immunity case is in stark contrast to the Court’s history in dealing with extremely important cases. None was as important as this case which deals with an attempted presidential coup and frontal attack on our democracy.

For example, in 1974, the Supreme Court took just 16 days after oral argument to order President Nixon to turn the Watergate tapes over to the Special Prosecutor.

In 1971, the Court took just four days after oral argument to remove an injunction, allowing The New York Times to publish the Pentagon Papers.

Court history shows that the Supreme Court can move quickly when it wants to act.

But in this case, the Court has inexplicably failed to do so and every day of delay going forward only strengthens Trump’s goal of stopping a trial before the election.

The Court’s integrity and credibility already have been seriously damaged in its handling of the Trump criminal case.

Just how long will the nation have to wait for the Supreme Court to act?