Trump at the Supreme Court, revisited

Twelve months ago, when the world was very different, Donald Trump had a lot riding on decisions of the United States Supreme Court. Firstly he was arguing that he was eligible to be on the ballot for president despite the disqualification in the fourteenth amendment of those who had engaged in insurrection against the US. Secondly, he was arguing that presidential immunity should prevent him from being tried for that and other criminal offences.

Both cases, broadly speaking, were decided in his favor. In Trump v. Anderson the court ruled that states could not enforce the disqualification without federal action (we covered this case here, here and here). And four months later in Trump v. United States it held that presidential immunity, while not as broad as Trump had argued for, was considerably broader than most authorities had previously believed.

This did not invalidate the various prosecutions on foot against Trump, but it made it – with one exception, which we’ll come to in a moment – impossible for them to go to trial before last year’s election. Taken together, the two decisions (including the delay in issuing the second one) helped set Trump up for his November victory.

Since then, the Supreme Court has mostly taken a back seat in politics. The election itself (contrary to some prior expectations) didn’t produce any major legal controversies. But there’s little doubt that before long the second Trump presidency will raise issues that the court will need to decide, and the question is how far the conservative majority will be willing to go. A decision last week provides a tantalisingly brief glimpse in that direction.

The case arose from the one successful Trump prosecution: the New York hush money case, on which a jury convicted him last May on 34 felony counts. Legal argument of various sorts delayed sentencing for some months, but a date was finally set for last Friday. Trump’s lawyers went to the court of appeal and the Supreme Court seeking a delay, and the Supreme Court said no.

This is not a fully argued case; it’s a summary judgement that runs to three sentences. The majority states that Trump’s points can be adequately addressed on the pending appeal in the state courts, and that in view of the judge’s intention to discharge him unconditionally (as duly happened), it could not be said that Trump was unfairly burdened by the sentencing going ahead.

What’s interesting is the numbers. This, remember, was generally thought to be one of the weaker cases against Trump: his chances on appeal are far from hopeless. Even Rick Hasen, by no means a Trump sympathiser, said there was a good chance that the Supreme Court would agree to stay the sentencing. And four justices would have: Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas.

That means the majority consisted of the other five: the three liberals (Ketanji Jackson, Elena Kagan and Sonia Sotomayor); chief justice John Roberts, who, while a conservative, is more concerned to protect the court’s reputation and often tries to rein in his colleagues; and Amy Barrett.

At the time of her appointment Barrett was regarded as a solid conservative; she remains so on most social issues, but in other areas she has shown an increasing tendency to independence. Although she supported the majority decisions in both Trump v. Anderson and Trump v. United States, in each case she issued her own concurring judgement, in which she disagreed with some of the more drastic positions of her conservative colleagues. (The knowledge that she was a protégée of Antonin Scalia makes it less surprising that she would have an independent streak.)

If Barrett is sometimes willing to vote with the liberals on blocking Trumpian practices, they will only need one more vote to prevail, and it’s very likely that there will be issues on which Roberts or Gorsuch (or even Kavanaugh) might be persuaded. So while there’s no doubt that this court will offer less resistance to a rogue president than would some of its predecessors, it’s unlikely to give Trump everything he wants.

.

UPDATE, 7 March: Sure enough, less than two months in, another Supreme Court decision goes 5-4 against Trump, with Roberts and Barrett joining the three liberals in the majority. The court refused to overturn an order from a lower court ordering the administration to continue to make payments on existing foreign aid contracts. Justice Alito, writing for the minority, was clearly very unhappy.

FURTHER UPDATE, 31 March: For those interested in the legal argument over Department of State v. AIDS Vaccine Advocacy Coalition, the case referred to in the previous update, there’s now a thorough analysis provided by Professor James Pfander in a post at the Volokh Conspiracy.