Trump’s Gag Order Was Upheld. That Gives the Supreme Court a Huge Opportunity.

On Friday, the U.S. Court of Appeals for the D.C. Circuit Court upheld a narrowed version of District Judge Tanya Chutkan’s gag order curtailing Donald Trump’s ability to lie, threaten, and coerce potential prosecution witnesses and public officials involved in the D.C. 2020 election interference prosecution. To those who have been paying attention, that ruling comes as no surprise. Equally predictable is the glaring spotlight now focused on the Supreme Court, as Trump’s lawyers move the high court to reverse Friday’s opinion.

While the Supreme Court is normally averse to getting involved in political matters, the Trump appeal should be viewed by at least some, if not all of the justices, not only as a mandate to preserve the rule of law, but as a gift—a vehicle to counter the court’s damaged image as a political body and to reclaim at least some of the crucial public support it has lost over recent decades. First, some context.

As the Supreme Court awaits defendant Trump’s motion for a writ of certiorari seeking review of the circuit court gag order opinion, it is burdened by a historically low level of public trust. Only 41 percent of Americans now have a favorable view of the court—one percentage point above the public’s lowest level of trust since polling began in 1972. Confidence levels fell some 20 points between 2020 and 2022 alone.

This is hardly surprising given the court’s controversial rulings that fly in the face of public opinion on issues such as abortion and guns.

Making matters worse, there has never been a period when the Supreme Court had so many individual members carrying varying degrees of negative personal baggage. First came the highly publicized Clarence Thomas/Anita Hill scandal. When years later, Senate Majority Leader Mitch McConnell froze the Senate confirmation process for 293 days to prevent President Barack Obama’s nomination of Merrick Garland to fill the vacancy created by the death of Justice Antonin Scalia, Neil Gorsuch became the first justice to sit in a stolen seat. That was soon followed by the painful congressional testimony detailing Brett Kavanaugh’s alleged drunken, possibly criminal high school assault of a Christine Blasey Ford. With the recent Thomas and Samuel Alito ethics scandals, the American public has now endured three decades of repeated stains on members of an institution that must be above reproach.

Claims by Chief Justice John Roberts that “there are no Trump judges, there are no Obama judges” ignore a reality that in most of the Supreme Court’s opinions concerning issues like abortion and the Second Amendment, the positions taken by members of the court can regularly be predicted based upon which side of the political divide they inhabit. Roberts’ analogy to justices merely being “umpires calling balls and strikes” reflects both a lack of understanding of baseball reality and a disregard for the way he and his fellow justices call the game. Self-serving defensive claims and off-base sports analogies will not turn things around.

The Trump gag order appeal presents an opportunity to provide at least some support for the chief justice’s position, while at the same time to quickly limit the damage the former president can inflict on the administration of justice. The clock is ticking—Judge Tanya Chutkan has set jury selection to commence Feb. 9.

There are two readily available ways for the court to capitalize on this moment.

First, assuming the majority wants to neither materially modify nor reject the D.C. Circuit ruling, the best and fastest approach would be to simply deny Trump’s motion seeking Supreme Court review and allow the D.C. Circuit’s ruling to stand. It takes four justices to grant review, and it is difficult to imagine four of them wanting to support the former president’s twice rejected, near absolutist legal position. The D.C. Circuit panel’s detailed, well-reasoned 68-page opinion puts the court on even further ground to stand pat.

But even beyond the strength of the D.C. Court of Appeals’ legal analysis, there exists an undeniable human reality, Trump’s attacks on judges, law clerks, and the justice system—including his screed when the court ruled against his attempts to withhold his tax returns—that the court has, among other criticisms, “lost its honor,” have surely been taken personally by members of the Supreme Court and staff.

Again, assuming the court’s majority opposes Trump’s extreme legal position, denying review is the fastest, most efficient way to respond. There will be no need for briefs to be filed or oral arguments to be scheduled that even on an expedited basis will take some time, during which the lower court gag order will remain suspended, and an untethered Donald Trump will continue his multifaceted assaults on the rule of law. Denial of Supreme Court review will reinstate the gag order and bring an immediate halt to at least some of the harm inflicted by Trump’s uncontrollable behavior.

As a second alternative, the court can quickly issue a per curiam—“by the court” —opinion affirming the D.C. Appeals Court’s ruling and reinstating the final gag order. Per curiam opinions reflect what is at least the majority view without an extensive, and thus time-consuming, underlying legal analysis, while allowing similarly minimalist dissents or concurring opinions to be filed.

Crucial to these outcomes will be the positions taken by the three justices appointed by the former president, Gorsuch, Kavanaugh, and Amy Coney Barrett. While there may be no better way to begin cleansing the stain of politics from the court than the three “Trump Justices” voting against the president who appointed them, the negative political fallout from all or most Trump appointees supporting his unsupportable legal positions will only add fuel to the reputational fire.

This “who is wearing which jersey” problem is further enhanced by the fact that a Supreme Court dominated by Republican appointees will be ruling on a gag order constructed today by three Democratic appointed appeals judges.

Of course, even if the high court follows either path discussed, it will hardly be the end of things, as there are a number of other matters that will likely require Supreme Court review before the D.C. trial begins.

High on this list is at least one “interlocutory appeal”—the rare appeal that must be ruled upon before a trial begins—Trump filed on his claim of presidential immunity. Given Chutkan’s recent, brilliant analysis and rejection of that claim—“defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens” —there is little the D.C. Circuit or Supreme Court needs to add in review for the record rejecting the immunity claim to be complete.

That the eventual outcomes of all potential Trump appeals are most unlikely to provide the former president with meaningful legal relief is beside the point—their overriding purpose is to delay the March 4 D.C. trial date as long as possible, to somehow push everything back until Trump is reelected and can save himself by destroying our criminal justice system.

Quick approval of Friday’s D.C. Circuit gag order opinion is an obvious place to start to heal the reputational wounds the Supreme Court has inflicted on itself since it decided the 2000 election in Bush v. Gore. It will accomplish four crucially important things—thwart Team Trump’s blatant delay tactics, limit the impact of the former president’s verbal assaults on our criminal justice system, reaffirm that no one is above the law, and provide much needed support for the court’s credibility going forward.

In the alternative, as we lawyers say in court pleadings, the Supreme Court can—by undue delay, adverse decision, or some combination of both—not only destroy what little remains of its credibility with the American public, but help clear the way for the former president to achieve his stated goal—to rip up the Constitution.

The umps hardly need to go to slow motion replay to make the call.