The Supreme Court and the Trump cases

The question is not when the Supreme Court will weigh in on Donald Trump’s eligibility to serve as president of the United States but if it will do so at all. It already resisted one opportunity when it refused to fast track the appeal of the district court’s ruling that he is not absolutely immune from criminal liability for acts committed while he was president. But that was not necessarily the major victory for Trump that so many commentators claimed.

There is every reason for the court to stay out of the election, notwithstanding the Republican-appointed majority on the highest court. John Roberts, the chief justice, is a conservative in more ways than one. He is known to be the sort of leader who is concerned about the court’s credibility and legitimacy, which is at an all-time low. He is known as a consensus builder, who would not and should not welcome a divided court weighing into a partisan divide that could leave the court, as it was after Bush v. Gore, further damaged in terms of its own credibility.

To those who question whether the 2000 decision had such an impact, I would point them to the polls at the time, as well as the opinion of my own former boss, the late Justice John Paul Stevens, who told me that no modern decision did more to undermine the public view that the court is above politics — and that was not a court that, like this one, is plagued by the perception of ethical problems of its own.

By rejecting the special counsel’s request for an expedited review, the court left the case to be decided by one of the most liberal courts in the country. A three-judge panel (of all Democratic appointees) will hear the Trump lawyers’ claims next week, giving the radical claim for absolute immunity the expedited hearing that the Supreme Court declined to afford.

If that decision goes against Trump, either because the court rejects his claim of immunity or accepts the argument that it does not have jurisdiction of a non-final criminal appeal absent special circumstances (a novel but not unprecedented argument raised by a friend of the court brief), he could quickly face the trial he is so desperate to avoid before a judge who has already ruled that the former president is not a king.

Trump could move for rehearing by the panel (which would be futile) or seek rehearing en banc by the full panel of D.C. circuit judges — a move that requires a majority of the 11-member court to vote with him to hear the case. For those who are counting, the D.C. Circuit has seven active Democratic-appointed judges and only four Republicans. The easy default vote on en banc petitions is a “no,” particularly in the absence of a strong dissenting vote by one of the three judges who will hear next week’s case. At the same time, an affirmance by the D.C. en banc court would make it even easier for the Supreme Court to say no to a cert petition, with two lower courts having ruled against the former president. The fact that all nine justices have once voted to stay out makes it easier for them to stay out a second time.

Which leaves the Colorado case as the more difficult one for the Supreme Court to avoid. There, you have not only a question of national importance but one as to which the states are already divided. But even so, the Colorado decision is right now on hold, and limited to the Republican primary ballot. The court may not be as easily able to avoid any decision at all, but there are paths available — including deferring to Congress the decision of a political question — to put off a final decision. In the meantime, Trump could be tried and convicted, the one thing that even today’s polls showing his wide lead suggest he could not survive.

In other words, Trump is not in the driver’s seat, at least not yet, and if the Supreme Court can find a way for the lower courts to resolve the immediate crisis, they may yet save their reputations and the court’s in the process.

Susan Estrich is a lawyer, professor, author, and political commentator.