The Supreme Court must take charge of the US political and legal mess, but it isn’t in a hurry

The new Donald Trump election controversies give the Supreme Court a chance to seize the moment as the justices’ stature continues to shrink.

For months, the justices have been on the defensive because of controversy over precedent-shattering decisions and their off-bench behavior.

The court will inevitably be situated to shape developments in the 2024 presidential election and, more broadly, determine the course of American democracy. For the justices’ own institutional reputation, the question is whether they can, in the public eye, make good on their regular admonition that the court is above politics.

On Friday, the court made clear it is not ready to take charge. It rejected a request by special counsel Jack Smith to decide whether former Trump should be shielded for alleged crimes while in office. It’s a question that will ultimately return to them.

The imminent issues are whether Trump is immune from federal prosecution for his actions in the wake of the 2020 election, and whether a state can disqualify him from 2024 ballots because of his role in the January 6, 2021, US Capitol insurrection.

At stake Friday was whether the high court would quickly hear the immunity question or wait until an intermediate appellate panel first took it up, likely adding months to this preliminary phase of the litigation. Trump is charged in connection with his alleged attempt to “disenfranchise millions of voters” by overturning the results in key states that he lost, including on January 6.

The justices’ one-sentence order, issued with no recorded vote or dissent, leaves the issue first to the US Circuit Court of Appeals for the District of Columbia Circuit, which will hear oral arguments on January 9.

With the presidential election ahead, the drumbeat for judicial transparency has grown louder. Irrespective of how the justices eventually rule, there is an apparent demand for legal reasoning that is clear, grounded and inspires confidence.

Since May 2022, when a draft of their decision overturning constitutional abortion rights leaked, the justices have been subject to enormous scrutiny and criticism. Their ultimate decimation of the landmark Roe v. Wade ruling, which had made abortion legal nationwide, continues to affect law and political outcomes and to influence culture and the most personal of family decisions.

The supermajority on the 6-3 conservative-liberal bench has continued its rightward drive, eliminating racial affirmative action at colleges and diminishing federal regulatory power across the board.

Meanwhile, doubts about the justices’ personal ethics mounted over the past year, particularly in the case of Justice Clarence Thomas, the subject of ProPublica investigations into his luxury trips and other financial benefits obtained from wealthy conservatives.

Gallup reported in September that public approval for the court remains at record lows. Separately, Gallup found that less than half of Americans say they have “a great deal” or even “a fair amount” of trust and confidence in the court.

How much do the justices worry about public opinion?

It is difficult to know how much the justices’ institutional reputation weighs on them. Early in his tenure, Chief Justice John Roberts emphasized that the court was not like the White House or Congress.

“I think the most important thing for the public to understand is that we are not a political branch of government” Roberts said in a C-SPAN interview in 2009. “They don’t elect us. If they don’t like what we’re doing, it’s more or less just too bad – other than … conviction and impeachment, which has never happened with the court.”

Nearly 15 years later, Roberts appears more attentive to public impressions. He has moderated the court with his own vote at the center of the bench, and he steered the majority toward its first-ever written ethics code.

The justices, however, revealed that code somewhat begrudgingly, saying it was needed to correct any public “misunderstanding” of their standards.

“The absence of a Code has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” they said when they released the ethics standards.

Some justices, notably liberal Elena Kagan, have endorsed ethics rules and the importance of public scrutiny. Conservative Justice Amy Coney Barrett voiced a bit of that theme yet also raised the notion of public “misimpressions.”

“Public scrutiny is welcome,” Barrett told a Wisconsin audience in August, according to Politico. “Increasing and enhancing civic education is welcome.”

Referring to news coverage, she added, “To the extent that it engages people in the work of the court and paying attention to the court and knowing what the courts do and what the Constitution has to say, that’s a positive development. To the extent that it gives them misimpressions, that’s a negative development.”

From Nixon to Trump

The lawyers in Friday’s case of US v. Trump appealed to the justices’ institutional interests from their dueling perspectives.

The special counsel emphasized the court’s singular role in safeguarding the Constitution when threatened by potential presidential wrongdoing. Smith’s team pointed to the justices’ early intervention in the 1974 case of US v. Nixon, when the court expedited proceedings to ensure that evidence being withheld by then-President Richard Nixon was available for a criminal trial.

Nixon sought to invoke executive privilege to keep secret Oval Office tape recordings sought for the trial of Watergate conspirators. The justices resolved the case in a matter of weeks and forced Nixon to turn over recordings of conversations related to the break-in at the Democratic National Committee headquarters in the Watergate building. (Nixon resigned two weeks after the court ruling.)

In that situation 50 years ago, the justices took just one week to decide to grant a special prosecutor’s request for early intervention, without an appellate court ruling. The Supreme Court expedited the briefing schedule, held oral arguments on July 8 and resolved the matter on July 24. Start to finish, it took two months.

Casting US v. Trump as equally, if not more, significant, Smith wrote, “This case involves – for the first time in our Nation’s history – criminal charges against a former President based on his actions while in office. And not just any actions: alleged acts to perpetuate himself in power by frustrating the constitutionally prescribed process for certifying the lawful winner of an election.”

Trump’s lawyers, alternatively, contend Smith wants quick action because of the 2024 election cycle and argue that the special counsel would force the justices to engage in partisan politics.

“The Special Counsel’s request threatens to tarnish this Court’s procedures with … partisanship,” Trump’s lawyers wrote, citing a recent Wall Street Journal editorial that said Smith was “dragging the Supreme Court into the political thicket.”

“The Special Counsel urges the Court to jettison venerable principles of prudence, leapfrog the ordinary process of appellate review, and rush headlong to decide one of the most novel, complex, and momentous legal issues in American history. In doing so, the Special Counsel seeks to embroil this Court in a partisan rush to judgment on some of the most historic and sensitive questions that the Court may ever decide. The Court should decline that invitation.”

And on Friday, it did. The question is what the court does next, when Trump’s immunity claim returns.

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