The Supreme Court has all but guaranteed that Donald Trump will not face trial for his efforts to subvert the 2020 election before this November’s presidential election. On Wednesday, after more than two weeks’ delay, the court issued an order refusing to lift the stay that’s preventing the Jan. 6 trial, prosecuted by special counsel Jack Smith, from moving forward. Instead, the court took up the case, scheduling oral arguments for the week of April 22—nearly two months from now. On this timeline, the justices will probably issue a decision near the end of June. That punt gives Trump exactly what he wanted: an extended pause that will make it impossible for Judge Tanya Chutkan to hold a trial in time for the upcoming election.
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If Trump wins that election, of course, he will ensure that his Justice Department halts the prosecution and dissolves the charges against him. Which means that SCOTUS has awarded him a powerful incentive to beat Joe Biden by any means necessary, and a good reason to hope that he can evade accountability for Jan. 6.
It is hard to overstate the frivolousness of Trump’s legal argument in this case. The former president claims that he has absolute immunity from prosecution for acts he took while in office, including his efforts to overturn the 2020 election. Those efforts included an alleged criminal conspiracy to nullify the outcome in multiple swing states, as well as personal participation in the pressure campaign against Congress that culminated in the violent attack on the Capitol. A cross-ideological panel of the U.S. Court of Appeals for the D.C. Circuit rejected this theory of total immunity because it is nowhere to be found in the Constitution, or the nation’s historical traditions. You can search the Constitution high and low for Trump’s theory of immunity without finding even a hint that it exists, because it does not exist. It has never existed. The former president’s lawyers know that. They made it up out of whole cloth for one purpose: They realized that, by raising a claim of immunity, Trump could halt all proceedings at the trial court until he exhausted his appeals, at which point he would be far closer to winning back the presidency.
After the D.C. Circuit’s ruling, then, the biggest question was whether SCOTUS would even entertain this obvious delay tactic. Trump sought a stay from the high court on Feb. 12. The government, through special counsel Jack Smith, urged the justices to simply deny the stay—or, in the alternative, to take up the case on a superexpedited schedule, with oral arguments on March 4. The Supreme Court responded to these requests by doing … nothing. For more than two weeks. It just sat on the case. This extended silence raised speculation that a majority had voted to deny the stay and a few conservatives, like Justice Samuel Alito, were writing angry dissents. But now it seems the court really was just doing nothing, because SCOTUS could have issued Wednesday’s (short!) order at any point since Feb. 12. There is no reason it should have taken so long. It’s hard not to speculate that a majority was seeking to abet Trump’s plot to run out the clock.
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If so, they’re succeeding. Rather than hold arguments in March, the court will hear the case toward the end of April. Some context: When the Colorado Supreme Court blocked Trump from the ballot, the court scheduled arguments much sooner, giving the parties a bit more than a month. And when, as president, Trump himself saw his agenda stymied in the lower courts, SCOTUS stepped in again and again with emergency orders in his favor. It seems that an emergency is only an emergency in need of speedy resolution when it requires Supreme Court intervention to help Donald Trump.
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Playing out the next few months paints a bleak picture. By tradition, the court waits until the dissenters are finished with their opinions before handing down a decision. So even if a majority rules against Trump, and finishes its work quickly, a single dissenter like Alito can hold up the opinion until the end of June. It will take several more months to prepare for trial, and the Justice Department has a policy of avoiding any action that could affect the outcome of a race within 60 days of Election Day. So here’s how that all boils down: In the absolute best-case scenario, both parties might be ready for trial by the fall. At that point, though, Jack Smith will bump straight into the Justice Department’s 60-day rule, and presumably postpone the trial until after November. Moreover, the trial itself will likely take a few months. It is now basically impossible to conceive of the trial concluding, and the jury rendering a verdict, before the election.
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Even in light of this Supreme Court’s hard-right lean, Wednesday’s order is stunning: a massive gift to Trump that can only be seen as a partisan bid to help him avoid a conviction for his attempt to subvert American democracy. There is no other plausible reason for the justices to sit on his petition for so long, or to schedule arguments so far in the future. Maybe the court could have justified hearing the case very quickly, not because it presents a difficult legal issue (it does not) but because it has clear national importance (and therefore should be ruled on by the highest court). But the court didn’t take that route. Rather, it played this exactly how Trump wanted. Its chosen course of action should set off very loud alarm bells. The court is evidently willing to run interference for Trump—who, after all, appointed three members of the conservative majority that is surely behind this delay tactic.
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The justices could have used this moment to prove their independence, which might have had the salutary side effect of shoring up their rock-bottom approval ratings. They decided instead to let Trump wield the Supreme Court as a weapon against Jack Smith’s prosecution. In a choice between integrity and cynical partisan loyalty, a majority picked the latter. Wednesday’s move is a harrowing indication that the court will gladly twist the rules to help Trump win reelection and evade accountability. It is a harrowing omen that the Supreme Court cannot be trusted to protect our democracy from Trump’s malignant assault.
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