When the U.S. Supreme Court ruled last week that Colorado could not keep Donald Trump off its presidential primary ballot, it proved at least one thing: The court can decide a case both quickly and with a keen eye to the political calendar.
The court handed down its decision just one day before Super Tuesday, when voters in Colorado (and Maine) were slated to cast their primary ballots. Through different processes, both states determined that Mr. Trump had engaged in insurrection, and therefore that he was constitutionally ineligible to serve as president and could not appear on the ballot. The states had put their determinations on hold pending Supreme Court review, which meant Mr. Trump remained on the ballot. For the court to not rule on the core question of the former president’s eligibility would have suggested that it was determined to protect the Republican presidential contender quietly, through inaction, without taking any political heat.
But the court issued a decision, just three and a half weeks after arguments. Whatever the decision’s shortcomings — and to my mind there are many — the court took a position, and it did so in a way that allowed democratic participation to occur with full information about who, in the court’s view, was eligible to appear on the ballot.
This was not the first time that the court has shown sensitivity to the political calendar. The court is often acutely aware of political time when deciding cases before it. That is why the timing of Mr. Trump’s immunity case has come under intense scrutiny.
That is also why, for the Supreme Court to fulfill its central role in our constitutional system, it must dispose of Mr. Trump’s arguments quickly — critically allowing for fully informed democratic participation in the November presidential election.
In other words, in the Jan. 6 case brought by the special counsel Jack Smith, as important as what the court decides is when it decides. Slow-walking the case would be tantamount to a ruling for Mr. Trump in one important respect: It would likely eliminate the chances of a pre-election trial and verdict in the most serious of the four criminal cases pending against him — one that is at the heart of and has deep consequences for the integrity of our democracy.
Mr. Trump’s argument — that he is absolutely immune from criminal prosecution for actions taken as president — does not present a difficult question. The court should decisively reject it, as both the trial court and a unanimous appeals court did in this case and as everything in our constitutional tradition demands.
But to date, signs that the court intends to proceed with urgency on this question have been less than encouraging. The court waited two full weeks to act on Mr. Trump’s request that it take up his immunity argument — and then, rather than accepting the special counsel’s proposed timeline, which contemplated a March oral argument date, the court scheduled it for April 25.
The court still has the ability to rule in time to clear the way for a trial. A schedule like the one the court followed in the Colorado case would allow for a decision by mid-May. Assuming a ruling against Mr. Trump, trial court proceedings could resume immediately, with a trial by late summer or early fall.
When necessary, the court has moved swiftly to resolve important questions involving presidential candidates or sitting presidents. In 1974, when President Richard Nixon asked the court to shield him from the obligation to hand over Oval Office tapes to the special prosecutor investigating the Watergate break-in, the court granted immediate review, citing “the public importance of the issues presented and the need for their prompt resolution.”
With Congress in the midst of impeachment proceedings against Nixon, the court set the case for expedited oral argument and, just over two weeks after that argument, unanimously ruled against the sitting president. The opinion, written by Chief Justice Warren Burger, a Nixon appointee, and joined by two other such appointees (William Rehnquist, also appointed by Nixon, had recused himself from the case), decisively rejected “an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances” and found that the president’s qualified executive privilege could not prevail “over the fundamental demands of due process of law in the fair administration of criminal justice.”
For Bush v. Gore, the court, faced with federal law’s “safe harbor” deadline for elector certification looming, handed down a decision just one day after the oral argument. In that case, the court observed that the Constitution leaves “the selection of the President to the people” and to the “political sphere,” while noting that the Supreme Court has been sometimes forced to “resolve the federal and constitutional issues the judicial system has been forced to confront.”
In the Trump immunity case, the political clock is no less real because of the existence of additional trial court steps that remain between the court’s decision and the casting of ballots.
A delay that tipped into middle or late June would make it exceedingly difficult for the district court to hold a trial on the charges against Mr. Trump. If that happens, the Supreme Court will be directly responsible for depriving the voting public of the information a trial would produce — both the evidence gathered by the special counsel and what a jury makes of that evidence. A jury’s conclusion about whether Mr. Trump is guilty of conspiring to prevent the peaceful transfer of power and remain in power unlawfully is manifestly critical information as Americans decide whom to elect as the next president.
The court has regularly emphasized the importance of presidential elections as a central feature of our constitutional system. In Seila Law v. the Consumer Financial Protection Bureau, the court wrote that “the Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation.” Four years ago, in a case involving the Electoral College, the court wrote that in the context of presidential elections, “We the People rule.”
In the presidential immunity case, a Supreme Court that delays its decision more than a few weeks will be actively and aggressively undermining the American public’s ability to cast meaningful and informed votes for the office of president.
Kate Shaw is a contributing Opinion writer for The New York Times, a professor of law at the University of Pennsylvania Carey Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens and Judge Richard Posner. This article originally appeared in The New York Times.
