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Yesterday a federal appeals court ruled that Donald Trump does not have immunity from criminal prosecution on the basis that he used to be the president. Equality before the law is a basic principle of criminal justice in a liberal democracy, and thankfully the court defended this principle in a strongly-worded ruling. Trump now has until Monday to appeal the decision, and there’s a good chance he’ll try to have it sent to the Supreme Court.
What happens next is complicated - the Supreme Court has to decide whether to take the case, whether to put Trump’s trial on hold in the meantime, and also on what timeline. Simply refusing to take it is one option, and the one that’s most likely to lead to Trump’s speedy trial for his role in the January 6th insurrection. More likely is that the justices will want to take the case. They can then decide whether to do it in an expedited fashion or to subject it to normal procedure. An expedited hearing means there will be a ruling in perhaps a month or two - normal procedure means that the ruling will almost certainly come after the November election. Whatever they decide about the timeline, it’s highly likely they’ll put the trial on hold in the meantime.
The Supreme Court frequently has to weigh in on weighty issues like this, but it’s relatively rare that the timing is so sensitive. If Trump’s trial is delayed for too long, then there’s a chance that he can win the presidential election and then either pardon himself or otherwise derail the trial from ever happening. There are hence a whole range of decisions that the justices have to take, extending beyond merely “what do we rule?”, that will have a profound effect on the future of the country.
That being said, the ruling is about much more than Trump. Trump’s lawyers put forward an absurdly broad interpretation of presidential power, claiming that the chief executive is completely immune from criminal prosecution for any action he carries out while in office. At one point Trump’s lawyers even claimed that a president could order Seal Team Six to assassinate his political rivals and suffer no legal consequences.
Such an understanding of the constitution is clearly absurd and at odds with the entire spirit of the American system of government. To claim that the framers would have endorsed it is likewise absurd. Yet given the ideological make-up of the Supreme Court, it’s not inconceivable that the justices might accept it. Even the justices appointed by Trump have shown little inclination to act as his personal lawyers, but this case speaks directly to a long-cherished principle in conservative jurisprudence: the importance of protecting and expanding the power of the presidency. They may see the case primarily in that light and rule accordingly.
Once again, a major question of American law and politics will be decided by an institution which has fast been losing its legitimacy. Today only about 40% of Americans approve of the job the Supreme Court is doing, a number which plunged in the aftermath of the overturning of Roe v. Wade and which has hardly been helped by a subsequent ethics scandal. Of particular concern has been the manner in which the three recent justices were appointed:
Neil Gorsuch was confirmed in 2017 to take the seat of Antonin Scalia, who died in 2016. Republicans in the Senate refused to consider an Obama nominee for the seat and effectively stole it, breaking with all previous custom;
Brett Kavanaugh took a seat in 2018 after being accused of sexual impropriety;
Amy Coney Barrett took a seat in 2020. In 2016, Republicans refused to consider Obama’s nominee because they said vacancies in election years should only be filled after the election. Despite 2020 being an election year as well, they filled the seat anyway.
These three appointments, each one highly controversial and partisan, created the current 6-3 conservative majority on the court which has since wreaked havoc with the constitution. No wonder the court’s legitimacy is in crisis.
Against packing
At the same time, many people have started to discuss how the Supreme Court might be reformed. It’s an important goal not just because the decisions the court makes are so important, but also because a strong and legitimate Supreme Court is vital to the healthy functioning of America’s system of government.
One of the most common and simplest proposed remedies is packing the court, which means appointing a bunch of new justices in order to give the bench a different ideological balance. The constitution doesn’t specify either the size of the Supreme Court or what the exact procedures governing appointment to it should be, so there’s nothing strictly unconstitutional about this. Arguably when Republicans monkeyed with the rules in order to appoint Gorsuch and Barrett, this was a form of packing. They tossed the established procedure out the window in 2016/17 to get Gorsuch, and then they tossed their own procedure out the window again in 2020 to get Barrett.
Usually, though, advocates of packing have something more systematic in mind - they want to not just react to a vacancy coming open in a dubious way, but to expand the court wholesale. In theory Congress could just decree that henceforth the Supreme Court will have 15 members and appoint six extra liberals to make up the numbers.
This would be a really bad idea because it would only make the court’s current legitimacy crisis worse. It’s not sustainable to move from a nakedly political conservative court majority to a nakedly liberal court majority. What happens next time Republicans are back in power? They’ll just pack the court again, then liberals will have to do it again, etcetera, ad infinitum. The idea is so obviously silly that I think that many of its proponents are just trying to run a historical repeat of the 1930s, when FDR’s threat to pack the court scared its conservative majority into changing course and suddenly deciding to let him implement the New Deal after all (the famous “switch in time that saved nine”). But FDR was a political colossus, and there’s little reason to think the court is going to be so easily intimidated today.
What instead?
Any sustainable solution to the court’s legitimacy problem has to be designed so as not to obviously benefit one side over the other. It has to make the workings of the court more transparent and more democratic, while at the same time less political.
That’s a tall order, but there are actually some fairly good ideas on the table. My favorite is term limits. The main advantage of this proposal isn’t actually that every judge can only serve for a certain number of years - it’s that the filling of new vacancies happens in a predictable way rather than when someone happens to randomly die. Imagine that every president got to make one or two Supreme Court appointments and everyone knew the partisan lean of who they would be replacing in advance. This would allow the court to play a much clearer role in presidential elections. If people had known in 2016 that a vote for Trump meant voting for a 6-3 conservative Supreme Court, many might have voted differently. But the American system currently denies them that knowledge and that choice.
Even though this proposal is on the face of it politically neutral, in practice it would be harmful to the right because their jurisprudence is much more unpopular with the public. Overturning Roe was very unpopular, and if a presidential election was fought even partly on the issue of “can the president murder his enemies with impunity?”, the anti-murder party is more likely to come out on top. That makes the right unlikely to back this reform.
In fact, it’s hard to imagine the right embracing any sweeping Supreme Court reform at a time when they enjoy a solid majority on the bench and look likely to do so for the foreseeable future. Creating a movement for change would require mobilizing a broad coalition from the left to the center - something that the backlash to Roe, which has mobilized voters even in red states, suggests might be possible.
Right now, Biden isn’t likely to make this a central campaign issue - the risk of turning off more voters than are supportive is high. But if this Supreme Court embraces the idea of Trump’s immunity, the stakes may be too high - and the anger too widespread - not to give it a try.