Justice Can’t Wait

But Federalist Society justices do when it suits their purposes.

More than three years after he summoned and incited an armed mob to launch a deadly attack on the Capitol to overturn the results of an election he knew he had lost, Donald Trump is finally being tried for criminal activities this week. But it’s not for what he did on January 6th – it’s for election interference in 2016, nearly eight years ago. To be clear, the charges in that trial involve a very serious criminal conspiracy to deceive voters. Trump is being held to account because to do otherwise would be to send a strong signal to future candidates that such gross voter deception will go unprosecuted. (See this memo from Defend Democracy Project for more.)

But let’s go back to February 13th, 2021, immediately after 43 MAGA Republican senators voted to acquit Donald Trump in his second impeachment, when an emotional Mitch McConnell delivered his verdict on Trump: 

“January 6th was a disgrace.

“American citizens attacked their own government. They used terrorism to try to stop a specific piece of democratic business they did not like.

“They did this because they had been fed wild falsehoods by the most powerful man on Earth — because he was angry he’d lost an election…

“Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty … with police officers bleeding and broken glass covering Capitol floors, he kept repeating election lies and praising the criminals.

“We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.”

How is it then that we are still waiting for Trump to be held accountable for what we saw with our own eyes and what even Mitch McConnell acknowledged was a thoroughgoing and violent abuse of presidential power to try to overturn the results of an election?

We should be in the eighth week of Trump’s trial for J6, nearing the moment a jury of everyday Americans would finally be able to pass judgment on his actions. But instead, on Thursday SCOTUS will hear arguments in Trump’s frivolous and already soundly rejected appeal for absolute presidential immunity. Make no mistake – unless SCOTUS (absurdly) declares absolute presidential immunity, their delay will have served no legitimate purpose. SCOTUS could and should have settled this question five months ago, when Jack Smith first asked them to, or at least two months ago by denying Trump’s appeal.¹ 

Before they cast ballots in this election, voters deserve to know the full truth about Trump’s attempts to invalidate their choice in the last one. To be clear, the Court can still act in time for a verdict to be reached before the election. They can and should rule on the case immediately. The Court is more than capable of making quick rulings on urgent cases. Thus, the only reason voters might not hear a verdict before they cast a ballot is because the six Federalist Society-approved Supreme Court justices (including three that Trump himself appointed) don’t want them to. 

Already, the delays so far mean that if a trial begins, it would be in the heat of the campaign season, when the question of whether to hold the trial will become an additional issue. The late date will inevitably cast a  “reasonable people can disagree” cloud over whether to proceed at all, as the reliable cast of “institutionalist” commentators worry that doing so will undermine public confidence in the election results. Beyond that, the timing would give the proceedings a more political flavor for those tuning in late. Many people might not realize that the only reason the trial is coming so close to the election is that SCOTUS prevented it from being wrapped up months before.  

While the media consistently reports (1) that Trump’s absolute immunity claims are baseless, (2) that SCOTUS will reject those claims, and (3) that SCOTUS’s decision to hear the case at all will mean a verdict is unlikely before the election, they inevitably stop short of making clear that delay was the Court’s intention. To be fair, there are good reasons to doubt that the Court is doing this to help Trump himself – but those reasons boil down to a dangerous misunderstanding of why the Court didn’t rescue Trump in 2020 and often ruled against him in other matters. More on that later. 

The motive for delay is better understood as advancing the Federalist Society agenda, which sometimes but not always involves helping Trump. In that regard, the six Federalist Society justices² are no different from the long line of establishment Republicans, like McConnell and Paul Ryan, who inevitably overcame their reservations about Trump when doing so furthered their agendas. 

SCOTUS and the Federalist Society Project 

The media makes a category error when they report on the Court differently from how they report on, say, Congress. There is no practical difference between what McConnell did when he refused to take up Merrick Garland’s nomination and what the six Federalist Society justices are doing now to delay the January 6th trial. 

The purpose is the same in both instances: protecting and advancing the decades-long Federalist Society project to install a new federal judiciary to replace the existing one, with broader powers than before. 

In November 2021, uncharacteristically, John Roberts publicly pushed back on Trump when he said: 

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” 

In an important and strict sense, Roberts is correct – the political fortunes of the presidents who appointed them are generally of little concern to the justices once seated. For the most part, they are not partisan hacks and in that sense are independent of the political process. 

But, once you see that the prerequisite for a Republican appointed SCOTUS seat is a genuine commitment to the Federalist Society project, it becomes obvious that their actions are in no way “independent” of the party’s judicial nominee gatekeepers. 

As I laid out in “To the Supreme Court, the Twentieth Century Was Wrongly Decided,” the Federalist Society’s project is broader and deeper than “merely” its substantive agenda to roll back civil rights and dismantle corporate accountability. (And the Federalist Society itself is acting in the interests of a broader coalition of both wealthy business interests and white Christian nationalists.) This project is not about the justices passively ruling conservatively on controversies as they arrive at the Court’s door, soberly committed to stare decisis. It is an active effort to both select and rule on cases that make the Court the dominant policy-making branch of government, defended from democratic accountability by the certainty of Republican filibusters. So it shouldn’t be difficult to see that the politicians advancing the coalition’s agenda legislatively would do the same when confirming justices. Mitch McConnell didn’t hold up Merrick Garland’s nomination in order to fill the seat with a better jurist. 

As far as I know, the stakes of the 2024 election for the success of the Federalist Society project have gone unremarked upon. Whether Democrats win the Senate, in addition to Biden winning the White House, will determine whether this anti-democratic project can be thwarted. 

By 2028, Clarence Thomas will be 80, Samuel Alito 78 and, as we’ve heard a lot recently, some say Sonia Sotomayor is in failing health. That means that by 2028, Trump could make nominations that add up to a 7-2 Federalist Society majority, with John Roberts the only one over 60 years old, or Biden’s nominees could constitute a 5-4 “Democratic” majority, with Elena Kagan the only one over 60 years old (68). The stakes are similar in terms of the federal appeals and district courts, where a second Trump term would likely provide Federalist Society majorities on even more of the circuits, and many of his second term appointments would be unqualified ideologues like Matthew Kacsmaryk. On the other hand, a second Biden Administration (with a Senate majority) could claw back Federalist Society majorities in several circuits. 

It’s difficult to believe that the Federalist Society justices delaying the J6 trial were ignorant or indifferent to the fact that the success of their life’s project was on the line.

The Illusion of Democratic Resilience 

For the last several years, we’ve taken at face value that Republican election administrators like Brad Raffensperger, Justice Department officials like Bill Barr, and a Supreme Court packed with three Trump appointees rejecting Trump’s efforts to overturn the results of the 2020 election at every turn as evidence that “democratic institutions held.” Typical was reporting like “In Key States, Republicans Were Critical in Resisting Trump’s Election Narrative: They refuted conspiracy theories, certified results, dismissed lawsuits and repudiated a president of their own party.” 

This narrative is dangerously flawed because it takes no account of the incentives of each of those Republican actors: They faced a classic prisoner’s dilemma because immediately after the election, Biden was seen to have flipped Arizona and Georgia as well as the more expected Michigan, Pennsylvania and Wisconsin. That was crucial because it meant that for Trump to win the Electoral College, three of those five states would have to reverse the results. Thus, on January 2, 2021, when Trump asked him to find 11,780 votes, Brad Raffensperger knew that even if he did, unless two of the other four states did the same, Biden would still be sworn in, and he, Raffensperger, would be exposed to prosecution for very serious felonies. And remember, the secretaries of state of the other four states were Democrats. 

Now, let’s turn to Bill Barr and others at the Justice Department. Remember that before the election, Barr went on TV to say that “Elections that have been held with mail have found substantial fraud and coercion.” But at the J6 hearings, he reported telling Trump that such claims were “bull s**t.”  Similarly, J6 testimony from DOJ officials who resisted Trump’s efforts because they were unlawful have to be understood less as courageous commitment to the “rule of law” and more as a personal calculation that, like Raffensperger, there was nothing they could do to ensure a second Trump Administration that didn’t require many others going along as well. And remember that they were fully aware of the consequences of going along with a rogue president: after Watergate, 41 people were criminally convicted, including the Attorney General and the White House Chief of Staff. 

Trump’s allies on the Supreme Court faced a similar, but not identical, dilemma. Unlike in 2000, when Bush’s allies on the Court had to make only one ruling (albeit unprecedented and controversial) to select him president, reversing the results of the 2020 election would have meant overturning elections in three states decided by tens of thousands of votes instead of one “decided” by less than 600 votes. Especially given the business community’s clearly stated commitment to a peaceful transfer of power, intervention would have been a bridge too far. But, more important than that, it’s important to remember that before January 6th, Trump’s Republican establishment foes, including Mitch McConnell, were fairly pleased with the election result. They felt it was win-win – voters would sweep Trump out of their lives, and if, as they expected, Republicans won at least one of the two run-offs in Georgia, they would have a Senate majority to make Biden a harmless one-term president. 

Selective Concern for the Constitution 

At a basic level, the Supreme Court’s most important job is supposed to be upholding the Constitution. As such, a deadly attack on the constitutional order should outrage the justices at least as much as it outrages us. Remember that what happened on the Capitol grounds on January 6th, as well as the fake elector schemes and other plots leading up to that day that were revealed by the January 6th committee and news reports, constitute the greatest (and only) threat to the peaceful transfer of power in the nation’s history, separate from determining Trump’s culpability in instigating it. 

Yet in their jurisprudence, first the Court moved with alacrity to ensure that Trump would remain on the Colorado ballot, sidestepping the question of whether he had engaged in an insurrection. And in the last few weeks, they decided to hear the appeal of Joseph Fischer, a convicted January 6th insurrectionist out of faux concern that the statute used to charge him (and about 300 others) could theoretically be used to suppress legitimate protest.³ Moreover, should they rule in favor of Fischer it would cast doubt on the heretofore uncontroversial prosecution of those attacking the Capitol on January 6th, as well as challenge counts in the indictment against Trump.   

Yet this eagerness to protect hypothetical future exercise of non-violent First Amendment speech and assembly was nowhere to be found in another case involving a Black Lives Matter protest. The Court allowed the organizer of that protest, which was non-violent save for a single protester throwing a rock at a police officer, to be sued for that one protester’s actions. 

The Federalist Society justices have also expressed no concern for the propagation of the Big Lie or the various baseless efforts to cast doubt on the election results, the basis for establishing the consent of the governed. Yet they’ve had no problem making unequivocal public statements about the dangers of people losing faith in the Supreme Court’s legitimacy due to criticism of their rulings and reporting about their ethical challenges. 

Conclusion 

No matter how skeptical any of the six Federalist Society justices are of Trump’s immunity claims on Thursday, remember that for that skepticism to have any value, it should have been exercised nearly two months ago to deny cert. We can never lose sight of the fact that those six justices are no different than any of the other “establishment” Republicans whose commitment to their agenda always trumps their commitment to democracy. 

The Federalist Society justices’ decision to stop Trump’s J6 trial is actually more egregiously anti-democratic than Bush v. Gore. By saying that I do not mean to minimize Bush v. Gore. But by the time that SCOTUS heard Bush v. Gore the country was in crisis, with no consensus about what to do next. In this instance, the Federalist Society justices have created a crisis where none existed by choosing to halt the trial to “settle” a question that had already been settled to the satisfaction of everyone on this side of MAGA.

1. The Federalist Society justices first turned down Jack Smith’s request to address the immunity question in December, then decided, after a bipartisan appeals court unanimously rejected Trump’s immunity claims and Trump petitioned the Supreme Court for a stay, that they would take up the question after all. A long 22 days after Trump lost his federal appeal, an unsigned SCOTUS order directed the D.C. circuit court to “to continue withholding issuance of the mandate until the sending down of the judgment of this Court,” and then scheduled the arguments for the last day of arguments for the year. 

2. I call them this because they not only had to be approved by the Federalist Society before being appointed by Republican presidents; they are also all current or former members of the organization, or in John Roberts's case a former steering committee member. 

3. For instance, Gorsuch asked, “Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?” It’s also worth noting that while the statute in question does have a maximum sentence of 20 years, none of the January 6th defendants have received punishments nearly that severe under that statute.