When the Supreme Court of the United States ruled for the independent counsel investigating Richard Nixon’s role in the Watergate break-in, the justices took 16 days to reach a decision from the moment they heard the case. A quarter century later, when the outcome of the 2000 presidential election between George W. Bush and Al Gore came before it, the court resolved it in one day. In the current cycle, faced with the question of whether Donald Trump should be disqualified from the ballot on account of his actions and inactions on January 6, 2021, the justices likewise recognized that time was of the essence, issuing their ruling in his favor in 25 days, right in time for Super Tuesday.
The throughline in these landmark cases is that the presidency and the rules that bind it require prompt resolution from the courts, lest voters’ faith in US democracy, their trust in American institutions, and their own democratic choices be irredeemably undermined. Yet the Supreme Court that Trump helped assemble isn’t displaying the same urgency in assessing whether a former president can be criminally indicted and tried over his role in disrupting the peaceful transfer of power to his rightful successor, Joe Biden. Jack Smith, the special counsel accusing the former president of subverting the will of the electorate as the ringleader of the civilian attack on the Capitol, has faced setback after setback in moving the case to trial—not attributable to any foot-dragging on his part, but the justices’ own.
On Thursday, when the Supreme Court finally considers whether a “former President lacks absolute immunity from federal criminal prosecution for conduct involving his official acts,” as Smith framed the issue in his legal filing submitted ahead of the hearing, it will have been a long 147 days since that question has been lingering in the air, unresolved. It is also the last argument session for the current term, which concludes at the end of June. The clock began to run on December 1, 2023, when Tanya Chutkan, the federal judge overseeing Smith’s charges in Washington, ruled that Trump isn’t absolutely immune from prosecution. Recognizing the exigency of the legal issue, which the law calls a question of “first impression,” Smith raced to the Supreme Court in December to settle it. But the court turned him away and delayed. And then delayed. And then delayed some more. By its own insouciance, like it or not, a majority of the court has already ruled against Smith, chipping away at the likelihood of a swift trial—and the public’s interest in the case being resolved before undecided voters cast their ballots.
As polling has shown, voters want a public trial before the November election. (By comparison, the ruling that resulted in Nixon’s downfall took all of 66 days to decide from the moment a lower court judge sided against him.) Smith and his secret weapon, Supreme Court advocate par excellence Michael Dreeben, are too polite and proper to accuse the justices of gumming up the works. And they care too much about appearing out of line to even suggest that the real reason for their urgency is the upcoming election. Instead, they walk a delicate line of focusing on the 2020 election and its aftermath, noting that Trump’s actions then “strike at the heart of our democracy.” Without saying it outright, Smith suggests Trump should be tried now—giving voters all the information they need to make an informed choice—or else there’s no telling what he’ll do the next time key battleground states haven’t called their races on Election Day.
Prosecutors and courts won’t save what remains of our democratic system, and people would be wise to not look to them to solve its deeper structural issues. But there’s value in naming and shaming ostensibly neutral political actors—as if judges were ever such a thing—because jurists across the spectrum care about the appearance that justices are fair and impartial and not in the tank for anyone. To this end, legal experts and advocates are already sounding the alarm about the Supreme Court’s scheduling delays—and its rush to judgment in some presidential cases but not others. One voting rights group, Common Cause, had the wherewithal to spell out, in no uncertain terms, that the justices are already tipping the scales in favor of Trump and that the public would be well within its right to view the justices as partisan hacks if they drag things out any further. “If this Court’s delay in disposing of this appeal has the result of preventing the case from going to trial prior to the election—or going to trial at all—it would give many Americans the sense that the Court, through its arbitrary and unexplained management of its own docket, has played partisan favorites in the midst of a heated presidential election,” the group wrote in a public filing.
Notice that, up to this point, I have barely touched on Smith’s legal argument against immunity for Trump. It’s almost beside the point: As Justice Sonia Sotomayor wrote in the context of a different legal controversy a few weeks ago, “Procedure can be just as consequential as substance.” That is, Smith’s desire for a trial will rise or fall depending on how fast the Supreme Court decides he can proceed. Whether a majority of the justices want to be seen as enablers in denying voters the benefit of learning what a jury of DC residents experienced in their backyard on January 6 is entirely up to them.
That’s not to say that substance doesn’t matter. In fact, from retired military officials to founding-era experts to constitutional scholars to former government officials, there is broad agreement that a president is not insulated from the reach of the criminal law for acts he took while in office—let alone for ordering the military to execute a political rival, as US circuit judge Florence Pan pointedly raised as a hypothetical question earlier this year. These and other friend-of-the-court briefs offer the justices an abundance of arguments, based on text, history, and tradition, for why presidents aren’t monarchs. Pan and her colleagues, like Chutkan before them, ruling unanimously, gave the justices plenty of material to work with.
But this is not the time for an intellectual feast, to borrow a term from a Watergate-era player that conservatives revere. If the Supreme Court needs an elegant way to resolve this case—without getting into counterfactuals about whether a prosecutor with an axe to grind might vindictively criminalize future presidents once they’re not in power—it would be wise to follow the advice of many former Republican officeholders: treat the unlawful disruption of the peaceful transfer of power as a category of constitutional wrongdoing all its own, separate from other lawbreaking. Under this framework, the Supreme Court’s work is cut out for it. As these former officials put it, “A President does not have immunity to engage in federal statutory crimes to subvert presidential election results and prevent the vesting of executive power in the newly-elected President.”
That once-in-a-lifetime standard, like this once-in-a-lifetime dispute arising from a once-in-a-lifetime day of infamy, should be an attractive solution for a Supreme Court that tends to make things worse when making history.