When special counsel Jack Smith petitioned the Supreme Court to dismiss former President Donald Trump’s immunity claims, a sense of urgency permeated his request. At that juncture, Smith warned the court against any further delay in excess of a dozen instances throughout his briefing. Now, approximately two weeks following Trump’s application to the Supreme Court for an injunction against a lower court ruling on his immunity argument, and eight days after all parties had filed their respective briefs with the justices, Court observers are once again left to speculate based on timing and silence.
The potential outcomes for the court could encompass various possibilities. The court might deny Trump’s request to halt the lower court ruling against his immunity claims, thereby reinstating Smith’s case for a trial. Alternatively, the court could grant Trump’s request and subsequently hear arguments on the merits of the immunity argument – possibly even on an expedited basis. The court might choose to decide the issue without oral arguments, or they could release a written opinion explaining their decision, or not.
Although the Supreme Court is known for its ability to act swiftly relative to judicial standards, the resolution of most significant cases typically takes months. Even within the court’s emergency docket, disputes can take weeks to resolve. However, given the immense stakes of this particular timing, the implications are profound. Smith aims for the court to expeditiously adjudicate Trump’s immunity claim so that US District Judge Tanya Chutkan may complete a trial on the former president’s election subversion charges prior to the November elections. Chutkan has already postponed an earlier March 4 trial start.
To circumvent this scenario, Smith had previously brought the matter before the Supreme Court in December, requesting the justices to leapfrog the DC Circuit Court of Appeals and provide “expeditious resolution” on the question of whether a former president can claim immunity from criminal prosecution. Smith emphasized then that Trump’s immunity claims needed to be resolved and a trial held “as promptly as possible” if they were rejected. However, the Supreme Court denied that request, opting instead for the appeals court to review the case first.
Some legal scholars theorize that a longer delay on the part of the Supreme Court increases the probability of rejection of Trump’s request to block the DC Circuit ruling. This theory hinges on the possibility that a conservative justice is drafting an extended dissent, which can take some time to complete.
Randall Eliason, a former federal prosecutor and George Washington University law professor, stressed that no one is privy to the inner workings of the court. The justices have convened at least three times – including on Friday – but it remains undisclosed if they discussed the immunity case during any of these conferences. With this in mind, Eliason predicts that a prolonged wait is likely detrimental for Trump.
“I think that’s the most likely reason,” Eliason said, “Someone is writing a dissent.”
Despite outward appearances of harmony and the absence of political discord, there are no visible signs of internal strife within the Court. Justices Sonia Sotomayor and Amy Coney Barrett attended a National Governors Association meeting on Friday, focusing on how to “disagree better.” Neither justice mentioned the two high-profile Trump cases currently facing the court.
If the Supreme Court wished to extricate itself from the Trump controversy rapidly, the most straightforward path would be to reject his request to pause the lower court’s ruling. This decision would allow a unanimous 57-page DC Circuit decision from earlier this month, which dismissed Trump’s claims of immunity, to stand. This would potentially result in a dissenting opinion.
“The longer it takes the court to act on former President Trump’s application, the less likely it seems that the court’s ruling will be a precursor to some additional process, such as an argument in the case,” said Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law. “Instead, delay will increasingly augur in favor of some kind of conclusive resolution.”
The Supreme Court decides hundreds of matters each year on its emergency docket – many of which are technical in nature and handled within a matter of days. However, more politically charged cases can take longer, especially if one or more justices is drafting an opinion. A recent emergency case concerning a bankruptcy settlement for the Boy Scouts of America took about 11 days for the court to address preliminarily, and the legal battle over razor wire Texas was installing on the US-Mexico border took 20 days between the initial filing and the court’s order.
In the Boy Scouts case, the Supreme Court declined to halt a $2.46 billion bankruptcy settlement for the Boy Scouts of America. In the border dispute, it sided with the Biden administration, permitting the Department of Homeland Security to remove the wire that Texas had installed. However, the Supreme Court operates at its own pace, and the justices are simultaneously working on crafting an opinion in another explosive case dealing with whether Trump can be removed from the ballot for his role in the January 6, 2021, attack on the US Capitol via the 14th Amendment’s “insurrectionist clause.”
Despite Smith’s eagerness to expedite the resolution of Trump’s immunity question, it is unlikely that a few days or even weeks would significantly impact the timing of a trial for Trump. “I don’t think a few more days or even a couple of weeks makes much difference right now,” Eliason said, “I think the best-case scenario for DC at this point is already a June trial, whether the Supreme Court acts today or next week.”
