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To hear Supreme Court justices tell it, they want to be seen as credible and fair arbiters of constitutional law, not political actors. In September 2021, for example, Justice Amy Coney Barrett tried to defend the institution’s impartiality — while speaking alongside Senate Minority Leader Mitch McConnell, who rushed her onto the bench during the 2020 presidential election as part of a brazenly political display.
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” the conservative justice said at the time.
That “goal” is increasingly out of reach.
The tarnishing of the Supreme Court — its credibility, its integrity, and its reputation — has unfolded episodically over the course of several years. When far-right justices issue reactionary, far-right rulings, the problem gets worse. When far-right justices get caught up in indefensible ethics controversies, the problem gets worse. When far-right justices deliver political speeches, the problem gets worse.
And when those same far-right justices deliver Donald Trump an unjustifiable gift, the problem gets even worse. My MSNBC colleague Jordan Rubin explained:
The Supreme Court has decided to review Donald Trump’s far-fetched immunity claim, a move that will at least further delay the former president’s federal election interference case from going to trial. The justices will hear oral arguments the week of April 22.
The specific question that the justices will consider, according to the written order, is “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.”
At first blush, this might seem entirely anodyne. A former president, confronted with serious allegations, has presented a provocative legal defense. That argument has been working its way through the courts, and it will now be resolved once and for all by the Supreme Court. At this superficial level, the developments might appear uncontroversial.
But the details matter.
After special counsel Jack Smith and his team indicted Trump in the federal election interference case, the Republican and his attorneys concocted an absurd claim: Because he’s a former president, Trump must be immune from prosecution. It was, for all intents and purposes, an argument rooted in the idea that Trump believes he can commit crimes with impunity and without fear of consequences — because he is effectively above the law.
To the extent that this ever was a legitimate question, it was answered emphatically by the D.C. Circuit Court of Appeals, which issued a unanimous ruling earlier this month.
“It would be a striking paradox if the president, who alone is vested with the constitutional duty to take care that the laws be faithfully executed, were the sole officer capable of defying those laws with impunity,” the judges concluded, adding, “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”
The D.C. Circuit went on to describe Trump’s position as “irrational,” adding that under the Republican’s preferred approach, presidents would be “free to commit all manner of crimes with impunity.”
Naturally, the Republican appealed the ruling, but the Supreme Court could have very easily turned it away. In fact, a few months ago, the special counsel’s office asked the justices to take up the matter on an expedited basis, and they declined.
Many legal experts assumed they’d do so again. Late yesterday, the public learned otherwise.
Among the glaring problems is the fact that United States v. Trump hardly deserves to be seen as a case at all. It’s a ridiculous claim concocted, not to advance a credible legal theory, but to delay criminal proceedings.
This isn’t real litigation; this is a transparent stalling tactic.
It’s against this backdrop that members of the Supreme Court giftwrapped a present for the likely Republican presidential nominee — first by taking their sweet time to agree to take up the case, needlessly delaying the process by weeks, and then again by scheduling arguments for April. It’s difficult to guess when an actual ruling will come down, but it’s now expected at some point in the late spring or early summer.
Common sense suggests that the justices will not ultimately rule in Trump’s favor — because that would be hopelessly insane — but that’s beside the point. The outcome of what is essentially a fake case is easy to guess, but it’s also irrelevant.
The goal is to delay the process long enough so that the criminal case — by some measures, one of the most important criminal cases in the history of the United States — won’t happen anytime soon, and might not happen at all before Election Day 2024. Several Supreme Court justices have apparently decided to help in that endeavor in a craven and brazen display.
The result is nauseating: Trump launched an attack on American democracy and tried to claim illegitimate power in defiance of a free and fair election. The nation’s highest court, made up of three justices the former president chose for the bench, appears willing to help the Republican in such a way that he might not face a trial for these alleged misdeeds before voters can render their own verdict.
Recent polling suggests the single great threat to Trump’s campaign has nothing to do with the Democratic incumbent or the state of the economy. The threat is a criminal conviction — because a whole lot of voters just aren’t prepared to cast a ballot for a known felon.
The former president and his team know this, which is why they’re going to outlandish lengths to delay the process as much as possible. If there’s a defense for the Supreme Court assisting in such an endeavor, I can’t think of it.