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.
