In major cases concerning former President Donald J. Trump, the Supreme Court has tried to put some distance between itself and politics. That fragile project does not seem to be succeeding.
“If the court is trying to stay out of the political fray, it is failing miserably,” said Melissa Murray, a law professor at New York University.
The case for attempted unity at the court in cases involving the former president is built on 27 data points, or nine votes each in three important rulings, all nominally unanimous. Those rulings suggest that the justices are trying to find consensus and avoid politics.
There were no dissents, for instance, in Monday’s Supreme Court decision letting Mr. Trump stay on ballots nationwide despite a constitutional provision that bars insurrectionists from holding office.
Nor were there noted dissents in December, when the court turned away a request from government prosecutors to bypass a federal appeals court and render a prompt decision on Mr. Trump’s audacious claim that he is immune from prosecution on charges of plotting to subvert the 2020 election. That could have ensured a trial well before the 2024 election.
And there were, similarly, no noted dissents last week when that case returned to the court after a unanimous three-judge panel of the appeals court soundly rejected the immunity argument. The Supreme Court, after mulling what to do for more than two weeks, decided to keep Mr. Trump’s trial on hold while it considers the case, scheduling arguments for about seven weeks later and putting the prospect of a trial verdict before the election in grave peril.
But the unity displayed in the three rulings is fraying.
On Monday, all nine justices agreed with the bottom-line conclusion that states may not bar presidential candidates from their ballots under Section 3 of the 14th Amendment, which prohibits officials who had sworn to uphold the Constitution and then engaged in insurrection from holding office.
The court should have stopped there, said David A. Strauss, a law professor at the University of Chicago. But five justices, in an unsigned majority opinion, went on to issue a much broader ruling, saying that detailed federal legislation was required to give Section 3 teeth in any setting.
“In fairness to the court,” Professor Strauss said, “they were in a tough spot — they understandably did not want to disqualify Trump, but all the offramps had major problems. Having said that, though, if they were inevitably going to have to write a weak and flawed opinion, maybe they could have written one that got nine votes instead of five.”
In a concurring opinion, the three liberal members of the court — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — seemed puzzled by the majority’s rush to decide matters not before them when nine justices had already found common ground. “We cannot join an opinion that decides momentous and difficult issues unnecessarily,” they wrote of the majority’s unsigned “per curiam” opinion, which is legal Latin for “by the court.”
Pamela S. Karlan, a law professor at Stanford, said the court had done damage to itself by going further than it needed to.
“To my mind,” she said, “the court’s effort to appear apolitical was undercut by the decision of the per curiam majority to go beyond the minimalist rationale of the concurrence — that there are special considerations with respect to the presidency that counsel against having state courts enforcing Section 3 — that could have gotten Justices Sotomayor, Kagan and Jackson to sign on. And for what?”
Professor Murray had a theory, and it was not one that flattered the court.
“While this decision rejects state authority to invoke Section 3 in favor of Congress’s authority to do so, in the end, the real winner here is the court, which gets to decide when states’ prerogatives matter and when they do not,” she said. “And the beneficiary of the court’s arrogation of power to itself is not just the court, but also Donald Trump.”
The decision in the Colorado case, she added, at least had the virtue of speed. The court granted Mr. Trump’s petition seeking review on Jan. 5, two days after he filed it. It scheduled arguments for a month later and rendered its decision a month after that.
Disposing of a significant case bristling with novel constitutional issues in two months was exceptionally quick work by Supreme Court standards.
The immunity case is much simpler and yet is moving much slower. True, the court put it on what it said was an expedited schedule when it got around to addressing the matter 16 days after Mr. Trump asked it to put the trial on hold. But that schedule called for arguments some seven weeks after the court acted, during the week of April 22.
Professor Murray said the contrast between the two cases was telling.
“The disqualification case was decided relatively quickly, proving that the court can act expeditiously when it wants to do so,” she said. “The immunity appeal makes clear that the court can also drag its feet when it wants to.”
The delay will matter, Professor Murray said.
“It is very unlikely that the D.C. Jan. 6 trial will proceed — at least in its current form — to a verdict before the election begins in earnest,” she said. “This means that, in addition to giving Trump an actual victory over Colorado in the disqualification case, the court has given Trump the delay he sought — and a de facto victory on the immunity issue.”
Jack Goldsmith, a law professor at Harvard, said the justices were in an impossible spot.
“Everyone on the court is acting in good faith and thinks they are being nonpolitical and doing the right thing,” he said. “The court far more than any federal institution has avoided the Trump and Trump-reaction craziness. But these cases involving or implicating Trump, which the court is right to consider, invariably have a huge impact on presidential politics, no matter what or how the court decides.”
