SCOTUS Allows Trump Sentencing to Proceed

Chief Justice Roberts and Associate Justice Barrett sided with the Court's liberals.

Adam Liptak for the NYT (“A Rebuke to Trump Provides a Telling Portrait of a Divided Supreme Court“):

The Supreme Court’s rejection on Thursday of President-elect Donald J. Trump’s request to be spared from being sentenced for 34 felonies was just a few lines long, and it made modest and practical points.

He remains free to appeal his conviction on charges of falsifying business records, the court’s unsigned order said, and appearing by video to face no concrete punishment in a New York court will impose a relatively insubstantial burden.

The ruling in its entirety:

The application for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons. First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal. Second, 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.

Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.

Liptak again:

More striking than the majority’s reasoning was the 5-to-4 vote in the case, which provided a vivid and telling snapshot of the court as it prepares to face a second Trump administration and the torrent of litigation that is sure to follow.

It was no surprise that the court’s three Democratic appointees — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — were in the majority. They had issued bitter dissents, after all, when the court’s six Republican appointees granted Mr. Trump broad immunity in July from federal charges that he had tried to subvert the 2020 election.

That ruling effectively scuttled the case, and it raised concerns that the court would not act as a check against Mr. Trump if he returned to the White House. Those concerns deepened on news that Justice Samuel A. Alito Jr. had conferred with Mr. Trump by phone on Tuesday.

If the votes of the three liberal justices were predictable, those of the two conservative members of the court who voted with them on Thursday — Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett — were more surprising.

The chief justice was the author of not only the immunity decision but also of majority opinions in two other victories for Mr. Trump last term, one casting doubt on some of the federal charges against him and the other allowing him to seek another term despite a constitutional provision barring insurrectionists from holding office.

Those three rulings, the last unsigned but clearly a Roberts product, undermined the reputation he had built over almost two decades as an institutionalist who sought to defend his court against charges that it is warped by politics.

His vote on Thursday was of a piece with the old Chief Justice Roberts, the one who cast the decisive vote in 2012 to uphold the Affordable Care Act, President Barack Obama’s signature legislative achievement, and the one who rebuked Mr. Trump when he went after a federal judge who had ruled against his administration’s asylum policy.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice Roberts said in a statement in 2018. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

More cynically, this is low-cost virtue signaling. Roberts and Barrett can point to this ruling and say, “See, we don’t always side with Trump.” But, since they already know the sentencing will be a pro forma one, there’s very little downside.

We are, of course, in uncharted waters here. We’ve never had a former President, much less one who has been re-elected, in this situation. The closest analog I can think of is the Paula Jones lawsuit against then-President Bill Clinton for actions that took place while he was still governor of Arkansas. While the trial court dismissed the suit on the grounds that a sitting President could not be sued, that was reversed by the Court of Appeals for the 8th Circuit, a ruling that was upheld by a unanimous Supreme Court (Clinton v. Jones, 1997).

Even as a vociferous critic of Clinton, I thought the ruling bizarre. It seemed obvious to me that a sitting President shouldn’t have his attention distracted by a civil lawsuit. But, again, the ruling was unanimous, with eight Justices joining the opinion written by Justice John Paul Stevens and Justice Stephen Breyer writing a concurring opinion.

I don’t know the reasoning of the four Justices who would have granted Trump’s stay. For the sake of argument, lets assume that it’s not purely cynical partisanship. Had the judge in the case not already signaled an intention to let Trump walk, there’s a rather strong argument that a President elected well after the convictions should have his sentencing delayed until the end of his term. It would be a weird thing, indeed, to have the will of the voters overturned by a local trial judge. So, it’s possible that the dissenters (if that’s the right word when there is no formal opinion) were simply treating this as a matter of a President-Elect in legal jeopardy while the majority baked in the expected result.

Back to Liptak:

The court’s three liberals needed to do more than capture the chief justice’s vote to prevail. These days, their most promising potential conservative ally is Justice Barrett, whom Mr. Trump put on the court just weeks before he lost the 2020 election.

Justice Barrett, in the usual journalistic formulation, has an independent streak, one that she exhibited in all three of the Trump cases last term. In each of them, she tangled with the chief justice.

She wrote a notable dissent, joined by liberal justices, from a decision limiting the tools prosecutors can use in cases against members of the Jan. 6 mob. And she voted with the court’s three-member liberal wing in March, saying the majority had ruled too broadly in restoring former President Donald J. Trump to the Colorado ballot.

In the decision granting Mr. Trump substantial immunity from prosecution, Justice Barrett wrote a concurring opinion proposing a different framework from the one Chief Justice Roberts set out in the majority opinion. She said Mr. Trump’s efforts to organize alternative slates of electors were “not entitled to protection” and added that she agreed with the dissent about how evidence may be used in the case.

In all, Justice Barrett was the Republican appointee most likely to vote for a liberal result in the last term. On Thursday, she joined Chief Justice Roberts to reject an urgent plea from the incoming president.

lt’s honestly hard for me to know what to make of the conservative Justices. For all but Alito and Thomas, it seems rather clear that their rulings are something beyond “Trump gets what he wants” or “How does this impact the Republican Party?” Or even “How do I justify my preferred outcome?” But I haven’t been able to identify much of a pattern to their thinking.

Again, though, so many cases involving Trump are sui generis. He presents challenges that have no precedent.

Liptak:

A snapshot is just a moment in time, and it does not predict what the future will bring. But there is some reason to think that it will not be all smooth sailing for Mr. Trump.

In his first administration, he did poorly in the Supreme Court in signed decisions in orally argued cases in which the United States, an executive department, an independent agency or the president himself was a party, prevailing only 42 percent of the time, the lowest rate since at least Franklin D. Roosevelt’s administration.

In other words, a fundamentally conservative court, now with a six-justice majority of Republican appointees that includes three named by Mr. Trump himself, has not been particularly receptive to his arguments. The Biden administration, by contrast, has been on the winning side 54 percent of the time.

Presented that way, it looks like the Court is simply, to coin a phrase, “calling balls and strikes.” But, without breaking the cases down individually to discern a pattern, my strong guess is that it’s mostly a function of the Biden team being more competent.

Because so many Republican officials who had served in the Bush administration had come out as #NeverTrump, Trump had a very thin bench of talent from which to staff his administration. They made a lot of mistakes, most notably continually running afoul of the Administrative Procedures Act. (Which, as I’ve noted before, I had long since forgotten about despite having taken graduate-level Administrative Law classes because, in subsequent decades, it was so routinely adhered to that it was hardly ever in the news.) There is every reason to believe the second Trump administration will be more competent, as a significant MAGA bench has been created over the past eight years.

FILED UNDER: Law and the Courts, Supreme Court, The Presidency, US Politics, , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Professor of Security Studies. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Tony W says:

    I feel like Barrett has the possibility of being a dark-horse moderate during the next four years, along with Roberts, who seems to temper his conservative impulses when they are satisfied elsewhere in government.

    For today, I’m pleased that Roberts and Barrett chose democracy.

    Heaven help us if one of the three remaining sane and reliable justices falls ill.

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  2. Scott says:

    My question, based on ignorance, is what jurisdiction does the US Supreme Court have over a matter that is strictly a state matter and adjudicated solely in the state?

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  3. Kathy says:

    Things have indeed deteriorated, when it seems strange for the judiciary to exert its power of checks and balances.

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  4. Michael Reynolds says:

    More cynically, this is low-cost virtue signaling.

    Bingo.

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  5. More cynically, this is low-cost virtue signaling. Roberts and Barrett can point to this ruling and say, “See, we don’t always side with Trump.” But, since they already know the sentencing will be a pro forma one, there’s very little downside.

    Worse, the 4 others could have done the same given the low stakes, and didn’t. That actually strikes me as a more significant signal.

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  6. Joe says:

    42% (Trump) v. 54% (Biden) may simply reflect Trump’s more outrageous positions, even before a court largely of his making.

    ETA: Strunk & White says that it is either “forty-two percent” or “42%” (except at the beginning of a sentence). I see this mixed numerical narrative renderings more and more and it drives me nuts!

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  7. @Scott: I would suspect that it is some combination of the application of the immunity case and the fact that the defendant is the president-elect. Plus SCOTUS is the finall court of appeals for state cases, should they choose to take up a state case (usually only after all state appeals have been exhausted, which is basically what this ruling is saying should take place if Trump wants the conviction oveturned).

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  8. gVOR10 says:

    Sure would have been interesting for the four who wished to accept the appeal to offer some explanation.

    It seemed obvious to me that a sitting President shouldn’t have his attention distracted by a civil lawsuit.

    That’s the basic reasoning of the OLC opinion that DOJ won’t prosecute. That’s always struck me as silly because a prez has people to handle such things. The minimal distraction seems a small price to pay for maintaining the principle of rule of law. It became ridiculous when Trump spent most of his first term watching TV and golfing.

    If one or two more Federalist justices get appointed I’ll expect the Court to extend the same reasoning to corporate CEOs. Who are far busier than prez Trump and also in Wilhoit’s group who are protected by the law.

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  9. Matt Bernius says:

    @Scott:

    My question, based on ignorance, is what jurisdiction does the US Supreme Court have over a matter that is strictly a state matter and adjudicated solely in the state?

    FWIW, this is where I’m particularly disappointed in Justice Gorsuch. His writings have generally shown him to hibe a strong, traditional Federalist: i.e. coming down on the side of State autonomy in matters that belong to them. The most generous logic I can come up with is that he might thing the decision should be voided due to the previous ruling on Presidential Immunity (which arguably will moot much of Hick’s testimony). But that’s an appeals issue.

    This is a case where I wish dissents were written. Without a doubt Scalia and Alito will rubber stamp this because Republican President. Kavanaugh will do the same for partisan reasons as well. But I’m interested to see if Gorsuch had any real reasoning for this or would just tie himself in a knot to get to this outcome.

  10. Matt Bernius says:

    @Steven L. Taylor:

    Plus SCOTUS is the finall court of appeals for state cases, should they choose to take up a state case (usually only after all state appeals have been exhausted, which is basically what this ruling is saying should take place if Trump wants the conviction oveturned).

    True, but even there, they are looking at the appeal from a very narrow perspective (do the questioned parts of the ruling somehow violate Constitutional law). Like you I suspect this is all about the immunity case and Hick’s testimony for the more principled conservative jurists.

    @Steven L. Taylor:

    Worse, the 4 others could have done the same given the low stakes, and didn’t. That actually strikes me as a more significant signal.

    100% this.

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  11. Joe says:

    @Steven and Matt: SCOTUS is the final court of appeals for state court cases that impact federal concerns. SCOTUS cannot review an issue solely of state law – as in based on an interpretation of state statute or state constitution. Trump’s appeal presumably rested on his privileges and immunities as a former or imminent President.

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  12. CSK says:

    Trump is now officially a convicted felon.

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  13. Stormy Dragon says:

    I don’t know the reasoning of the four Justices who would have granted Trump’s stay.

    Long standing precedent is that people have to exhaust all appeals at the state level before they can pursue appeals in federal court. Trump has an outstanding appeal in the state court. Sentencing is rarely delayed for pist conviction appeals, particularly in cases like this where the convicted can’t demonstrate and particular hardship they face.

  14. Roger says:

    In a world where Supreme Court Justices acted in good faith, I would assume the argument for accepting the case would go something along the following lines:

    1. Presidential immunity is a matter of federal constitutional law, and although the Supreme Court has no jurisdiction to answer questions of New York state law it does have jurisdiction to answer federal constitutional questions.

    2. Although in general legal errors are addressed by appellate courts only by appeal after a final judgment has been entered, courts treat questions of immunity different. The theory is that immunity is supposed to shield not only from the final result, but also from even having to go through the process at all. Because of this, immunity decisions frequently can be raised before the case is final.

    3. The prosecution against Trump involved some evidence that arguably could fall within the type of evidence that the Supreme Court’s immunity decision said cannot be used. The trial court’s holding that (1) Trump waived his objection to use of the evidence; (2) the evidence was proper anyway; and (3) to the extent the evidence was improper and waiver doesn’t apply, any error was harmless because of the overwhelming evidence that existed even if one ignores the improper evidence raises novel issues of constitutional law that need to be decided promptly, because if the trial court was wrong about this Trump improperly has been denied immunity by being put through the process of being sentenced.

    I am enough of a sucker that I think it’s possible (not likely, but possible) that Gorsuch and maybe even Kavanaugh would have taken the case because they believe it raises real constitutional questions that ought to be answered sooner rather than later. I can’t extend even that much charity to Alito and Thomas.

  15. Scott F. says:

    Even as a vociferous critic of Clinton, I thought the ruling bizarre. It seemed obvious to me that a sitting President shouldn’t have his attention distracted by a civil lawsuit.
    – – –
    It would be a weird thing, indeed, to have the will of the voters overturned by a local trial judge.

    IANAL, so this is a sincere question not intended to be snarky…

    In what way does local trial judge Merchan’s sentencing of a felon already convicted in a civil lawsuit followed then by this outcome from SCOTUS distract our soon-to-be-sitting President much less overturn the will of the voters?

    The Republican Party, in their infinite wisdom, decided being an indicted felon wasn’t disqualifying for a presidential candidate. Republican primary voters agreed. Over the interests of multiple state electoral boards, the conservative majority of SCOTUS agreed. Trump was elected POTUS as a convicted felon by his tribalist party, his cult, and the Misinformed Middle, so what qualifies as the will of the people in our electoral system wasn’t thwarted or isn’t being overturned.

    The irreparable damage to the reputation of the Office of the President of the United States is already done!!!!! Our great country has already decided it is suitable for the Leader of the Free World to be a crook.

    All this sentencing does, with its unconditional discharge, is damage Trump’s brand. I will grant that for an epic narcissist like Trump, brand damage will distract his attention, but certainly no more so than Every. Single. Slight. distracts our Toddler in Chief.

    This outcome reinforces the validity of our legal system such that a civil case, properly adjudicated with competent counsel for both defendant and prosecutor, resulted in a verdict from a jury of US citizens. The political system can’t just discard our legal system – that’s a good thing, no? That 4 Supremes couldn’t find it in themselves to say so is the big story here.

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  16. ,just nutha says:

    @CSK: And we, teh peepul, will have the opportunity to not vote for him again in 2028. (Yes, this is a prediction.)

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  17. Matt Bernius says:

    @Joe:

    SCOTUS is the final court of appeals for state court cases that impact federal concerns.

    That is a far better formation of what I was trying to say. Thanks for the clarification.

    @Roger:

    I am enough of a sucker that I think it’s possible (not likely, but possible) that Gorsuch and maybe even Kavanaugh would have taken the case because they believe it raises real constitutional questions that ought to be answered sooner rather than later.

    I’m kinda in the same camp, though I frankly won’t extend that courtesy to Kavanaugh on this topic (where I think he tends to be a far more partisan actor). And my faith in Gorsuch is also rapidly waning (at least on these sorts of issues around executive power).

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  18. Barry says:

    I also question this: “It would be a weird thing, indeed, to have the will of the voters overturned by a local trial judge.”

    The only way that this would be weird is to presume that the office in question is above the law.

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  19. Scott F. says:

    @Matt Bernius:

    And my faith in Gorsuch is also rapidly waning (at least on these sorts of issues around executive power.

    Can you offer any examples where Gorsuch’s decision in the case warranted your faith? I gave up on the guy a long time ago.

    As someone who values and honors our institutions, I’m looking for any evidence to not discount SCOTUS as corrupted.

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  20. Scott F. says:

    @Scott F.:
    Case in point on damage done from today’s sentencing hearing.

    Judge Merchan:

    The protection of the office of the presidency “is a factor that overrides all others.”
    “Donald Trump, the ordinary citizen, Donald Trump the criminal defendant, would not be entitled to such considerable protections.”

    Prosecutor Joshua Steinglass:

    “We must be respectful of the office of the presidency, and mindful of the fact that this defendant will be inaugurated as president in ten days”
    “[Trump’s relentless attacks on the justice system throughout the case] caused enduring damage to the public perception of the criminal justice system.”

    Trump attorney Todd Blanche (Trump’s pick to be deputy U.S. attorney general in the next administration – OMG):

    “It’s a sad day for President Trump and his family and his friends, but it’s also … a sad day for this country.”

    Trump:

    “This has been a political witch hunt.”

    Trump is allowed an allocution where he is not required to admit guilt or express remorse.

    Even after SCOTUS didn’t completely bury this, Trump is unbent and undamaged, while the Office of President and the standing of the rule of law in the US are stained. What a travesty.

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  21. CSK says:

    @,just nutha:

    He’s hinted broadly several times about running for a third term in 2028.

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  22. Gustopher says:

    Had the judge in the case not already signaled an intention to let Trump walk, there’s a rather strong argument that a President elected well after the convictions should have his sentencing delayed until the end of his term. It would be a weird thing, indeed, to have the will of the voters overturned by a local trial judge.

    You can make an overturning-democracy case for delaying any punishments until the President-elect’s term is over, but the sentencing itself?

    Also, if you’ve never heard accept this overturning-democracy argument, should Illinois governors not get jail time?

  23. Gustopher says:

    I don’t know the reasoning of the four Justices who would have granted Trump’s stay. For the sake of argument, lets assume that it’s not purely cynical partisanship.

    Maybe they knew which way it would be decided, realized their vote didn’t matter, and by voting with the once-and-future President, they are more likely to get free trips and gifts from the once-and-future President’s backers.

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  24. Just nutha ignint cracker says:

    @CSK: And I’m raising to SCOTUS will “find” some rationale that will make a third run possible despite the 22nd Amendment.

  25. Jax says:

    @Just nutha ignint cracker: Should they do so, I look forward to Obama’s third term!

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  26. Stormy Dragon says:

    @Just nutha ignint cracker:

    And I’m raising to SCOTUS will “find” some rationale that will make a third run possible despite the 22nd Amendment.

    Same rationale that they used to get rid of the insurrection clause: eligibility is a political question, so if Trump is ineligible, it is up to Congress to do something about it.

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