On December 11, 2023, Special Counsel Jack Smith asked the U.S. Supreme Court for an expedited review of ex-president Donald Trump’s claim of absolute immunity. On December 22, the Court refused, offering no explanation.
Two months later, on February 28, the Supreme Court agreed to take up the question of the ex-president’s immunity claim, to “decide whether former President Donald Trump can be tried on criminal charges that he conspired to overturn the results of the 2020 election,” as SCOTUSblog reported. The Court asked both parties to appear for oral arguments on April 25, more than four months after Special Counsel Smith’s first request.
Now, professor of law Leah Litman, who is also the host of the “Strict Scrutiny” podcast, in a New York Times op-ed on Wednesday writes: “Something’s Rotten About the Justices Taking So Long on Trump’s Immunity Case.”
“For those looking for the hidden hand of politics in what the Supreme Court does, there’s plenty of reason for suspicion on Donald Trump’s as-yet-undecided immunity case given its urgency,” Professor Litman says. “There are, of course, explanations that have nothing to do with politics for why a ruling still hasn’t been issued. But the reasons to think something is rotten at the court are impossible to ignore.”
READ MORE: ‘Fact Checking His Delusions’: Trump’s Falsehoods May Not Be Lies Anymore, Critics WarnShe notes that that timetable is “considerably more drawn out than the schedule the court established earlier this year on a challenge from Colorado after that state took Mr. Trump off its presidential primary ballot. The court agreed to hear arguments on the case a mere month after accepting it and issued its decision less than a month after the argument. Mr. Trump prevailed, 9-0.”
“Nearly two months have passed,” Litman says, since the Court hear oral arguments. “Every passing day further delays a potential trial on charges related to Mr. Trump’s efforts to remain in office after losing the 2020 election and his role in the events that led to the storming of the Capitol; indeed, at this point, even if the court rules that Mr. Trump has limited or no immunity, it is unlikely a verdict will be delivered before the election.”
The Supreme Court is a “busy place,” Litman generously offers. She ignores that the Court has been taking on fewer cases each year, which led Vox‘s Ian Millhiser last month to observe that the Supreme Court justices are “quietly quitting their day jobs as judges, even as they become more and more political.” He calls them the “most powerful, least busy people in Washington.”
Litman calls Trump’s claims “so outlandish they shouldn’t take much time to dispatch.”
The question before thew Court is this: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
“It does not take weeks to explain why these arguments are wrong,” she concludes.
The Supreme Court is next expected to hand down opinions Thursday, June 20, and Friday, June 21, although it is unknown which or how many opinions it will release on those days.
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