Trump’s Latest Defeat Is One of Many Decisions That Suggest SCOTUS Won’t Rubber-Stamp His Agenda
On Wednesday, President-elect Donald Trump’s lawyers urged the U.S. Supreme Court to block his sentencing in New York for falsifying business records to conceal his 2016 hush payment to porn star Stormy Daniels. Todd Blanche, whom Trump plans to appoint as his deputy attorney general, and D. John Sauer, Trump’s pick for solicitor general, warned that “forcing President Trump to prepare for a criminal sentencing in a felony case while he is preparing to lead the free world as President of the United States in less than two weeks imposes an intolerable, unconstitutional burden on him” that undermines “national security and vital interests.”
Most of the justices were unimpressed by that argument. In an unsigned order issued on Thursday evening, they declined to intervene in the New York case, saying “the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing.”
Since that sentence amounts to no punishment at all and Trump can still appeal his 34 felony convictions, the practical consequences of that order are indeed “relatively insubstantial.” But the decision confirms what should have been clear from Trump’s track record at the Supreme Court: Even though six of the nine justices are Republican appointees, including three nominated by Trump himself, that does not mean he can count on the Court to rule in his favor. Even the Court’s harshest critics on the left are apt to be grateful for that fact during Trump’s second term, especially in light of his authoritarian impulses and his threats to deploy his powers against his political opponents.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh said they would have granted Trump’s application for a stay. But the majority included Chief Justice John Roberts, a George W. Bush appointee, and Justice Amy Coney Barrett, a Trump appointee, as well as the three justices nominated by Democrats.
That lineup, New York Times reporter Adam Liptak argues, is further evidence of Barrett’s “independent streak,” which he says was also apparent last summer in Trump v. United States and Fischer v. United States. But these examples are more complicated than Liptak implies.
In the former case, the majority endorsed a broad view of presidential immunity from prosecution for “official acts,” casting doubt on whether Trump could be prosecuted for trying to overturn the outcome of the 2020 presidential election. In a partial concurrence, Barrett took a narrower view of presidential immunity that would give prosecutors more leeway to charge a former president based on arguably official conduct. But the majority opinion was written by Roberts, who in other cases has not been shy about ruling against Trump.
In Fischer, which involved a Capitol rioter charged with obstructing an official proceeding, Roberts’ majority opinion said a defendant can be convicted of that crime only if he “impaired the availability or integrity for use in an official proceeding of records, documents, objects,” or “other things used in the proceeding, or attempted to do so.” That ruling also helped Trump, who had been charged with obstructing an official proceeding in the federal election interference case.
In a dissent joined by Justices Sonia Sotomayor and Elena Kagan, Barrett disagreed with the majority’s reading of the statute. But Justice Ketanji Brown Jackson, a Biden nominee, joined the majority opinion and wrote a concurrence, which was consistent with civil libertarian concerns about due process and fair notice.
Liptak also mentions Trump v. Anderson, the March 2024 case in which the Court said states could not exclude Trump from the 2020 presidential ballot as an insurrectionist under the 14th Amendment. But although the justices were divided on the rationale for that decision, they were unanimous in concluding that state officials did not have that power.
Those three decisions, Liptak says, “undermined the reputation [Roberts] had built over almost two decades as an institutionalist who sought to defend his court against charges that it is warped by politics.” But the assumption that any decision favoring Trump must be “warped by politics” is neither fair nor reasonable, as illustrated by Jackson’s position in Fischer and the unanimous result in Trump v. Anderson. By the same logic, justices appointed by Democrats must be motivated by partisan considerations every time they ru
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