HomeTop StoriesWhy is Trump getting special treatment from the Supreme Court?

Why is Trump getting special treatment from the Supreme Court?

To understand how remarkable it is that the Supreme Court has agreed to consider the former president Donald TrumpGiven the requirement of absolute immunity from criminal prosecution, it is necessary to have some idea of ​​how the court treats other criminal suspects.

In that light, the court’s extraordinary and inappropriate concern for Trump, the person who selected three sitting justices, becomes all too clear. And the result is that Trump could now succeed in delaying his federal lawsuit over his attempt to overturn the 2020 election until after voters go to the polls in November.

In recent years, the Roberts Court has shown increasing impatience with criminal defendants’ attempts to avoid punishment — even when the outcome would be cruel, unnecessarily painful, or simply unjustified. The effect of this new hostility to reprieve is most acutely felt in the context of the death penalty. But a general hostility to foot-dragging in criminal cases is a through line in the court’s role.

Justice Neil Gorsuch set the tone for this approach in 2019, when he complained that legal challenges to the death penalty were often used to delay or even derail executions. Courts, Gorsuch said, must “carefully monitor attempts” to use constitutional challenges as tools to prevent unwarranted delay. In particular, he warned: “last-minute stays should be the extreme exception, not the norm.”

Since then, the court has followed Gorsuch’s lead with unsavory relish. Before 2020 and the death of Justice Ruth Bader Ginsburgit was common for the Supreme Court to grant adjournments to deal with legal questions arising in the final stages of a capital case. Since then, it has allowed only two such stays. During the same period, the country also lifted nine stays of death sentences imposed by lower courts.

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The result was predictable: many of the convictions upheld by the court are plausibly described as ‘full of errors’. And in January, the court declined to invoke Alabama’s new use of nitrogen gas to execute Kenneth Smith. Witnesses described Smith’s resulting death as gruesome – prolonged and torturous – and not at all painless as the state promised.

The same goes for federal prosecutions. In the latter part of 2020, the court stepped aside as the federal government rushed to execute 13 people — as many as had been killed in the previous 60 years. Judge Sonia Sotomayor noted that the court “repeatedly bypassed its usual deliberative processes” to allow an “accelerated series of executions.” In its haste to carry out the sentence, the court waved away the usual rules.

Outside of death penalty cases, the Supreme Court has placed increasing restrictions on prisoners’ ability to challenge constitutional errors. Gorsuch and Justice Clarence Thomas, in particular, have urged that the longstanding right to challenge state court convictions in federal court be effectively eliminated. The effect of their proposal would be to streamline the criminal justice process even further, halting almost all appeal attempts before they even begin.

All of this makes the Supreme Court’s decision to hear Trump’s call for absolute immunity from all criminal charges even more unusual and troubling.

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Start with the weakness of Trump’s argument. There is absolutely no constitutional text, no precedent, and no authority in the original debates over the ratification of the Constitution to support the idea of ​​a former president’s absolute immunity. Trump’s counsel’s argument is downright absurd. The idea that senators can impeach a president who has threatened them with deadly force and thus not face the need for a criminal trial is funny. The Court of Appeals for the District of Columbia rightly ridiculed it—and issued a comprehensive, well-reasoned, and unanimous opinion that did not constitute good grounds for further investigation.

Trump has the right to appeal the decision, but there is no good reason for the Supreme Court to hear the decision and review it as a legal issue — especially given the thoroughness of the DC Circuit.

In fact, the court’s past concerns about “unjustified delay” in criminal cases appear to be holding back the hearing of the case. After all, it is common knowledge that the former president’s legal strategy is aimed at running out the clock and thus avoiding a trial before the elections. So this is a case in which delayed justice could well have gone off the rails.

Indeed, the reasons why the court denies Trump’s request to hear the immunity issue appear much stronger than in Kenneth Smith’s challenge to the use of nitrogen gas. If Smith had been successful, Alabama could have found another, permissible way to kill him. If Trump’s trial is delayed enough, it may never happen. If Trump is back in the White House, he can easily destroy the Justice Department’s case.

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Moreover, the attention of the Supreme Court is a precision commodity. During the 2022-2023 term, the court issued only 58 rulings. Given that this scarce resource is so little used to prevent miscarriages of justice, the question must be asked: why now? And why for this defendant?

There is no right answer. It’s hard to see each legally sound reason why the Supreme Court should have decided to step in to hear Trump’s implausible and constitutionally destructive claim for absolute criminal immunity — especially since it has refused to hear the far more meritorious claims of so many other criminal defendants.

There are undoubtedly some who will try to make excuses in court. They will say the court is concerned about an election year prosecution. Or they will say that the issue here is clearly an important one that deserves full arguments. But the fact is that Trump is getting the kind of treatment that other criminal defendants aren’t getting. His delaying tactics are embraced rather than swept away.

If the Supreme Court’s reputation is further tarnished by this move, it will not simply be because there is an air of impropriety attached to the decision. Rather, it is because the court is treating with special favor the presidential candidate of the party that appointed six of the nine judges to materially support his presidential campaign. The problem here is not a matter of appearances. It suggests an unseemly and partisan act in his bones and marrow.

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