Clarence Thomas’ Club Votes Against Democracy

SCOTUS denied Jack Smith’s effort to get a SCOTUS review of Trump’s absolute immunity claim immediately.

SCOTUS will wait until after DC Circuit hears arguments on January 9, decides the issue, and then they’ll take it up at their leisure, when they’re not taking rich vacations with right wing donors.

This is the easiest of all decisions before SCOTUS, because by taking the case right away, they might make all their other decisions easier.

But instead, they’re stalling.

115 replies
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  2. David_22DEC2023_1447h says:

    It was Trump attorneys well crafted “Grinch” comments that sealed the decision

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      • Bad Boris says:

        If you had a single fact to support your statement, I might listen.

        Given that you don’t, combined with your long and storied 𝘢𝘱𝘰𝘭𝘰𝘨𝘪𝘢 for all things re ( this ) SCOTUS, I’m not.

        • Charles Wolf says:

          Unaccustomed as I am to agreeing with bmaz, I see no cause for despair over this action. The DC Circuit will be briefed in a few weeks and their ruling will follow shortly afterward. It probably won’t delay the trial and certainly won’t delay it beyond the election.
          If Trump wins his “absolute presidential immunity” nonsense. then I suggest Biden murder the bastard and claim “absolute immunity”.

          • GSSH-FullyReduced says:

            How to get away with murder (not the Hollywood version):
            -run for POTUS
            -then shoot somebody on 5th avenue
            -not lose any votes
            =>Don’t need absolute immunity

          • earlofhuntingdon says:

            “Despair” is a straw man argument. And please avoid crap like your last paragraph, even in jest.

          • Kenster42 says:

            Not sure about that. DC 3 judge appeal ruling comes, then Trump can ask for it to be heard again en banc, then it goes to SCOTUS. That’s not going to happen overnight.

  3. FiestyBlueBird says:

    Gutless. It was a no-brainer to not delay. They are short on guts as well as brains. Hoping Vladeck is correct that it is not THAT big of a deal. But it’s gutless.

    • sohelpmedog says:

      I think Vladek is correct. And without any dissent, it is impossible to know why the court ruled as it did.
      Nothing to get one’s kishkes into an uproar.

  4. ToldainDarkwater says:

    My sense of what’s going on is that the Court is unlikely to rule in Trump’s favor, but is happy to help him delay things.

    Or maybe they know they are going to have to rule against him and this is likely to make them very unpopular with certain groups, and they just want to delay that as long as possible. As FeistyBlueBird above describes them: gutless.

    Could be. I would be surprised. They have gone against Trump a lot already.

    • earlofhuntingdon says:

      My sense is that this radical Court majority is more than happy to benefit Trump. It just doesn’t want to do an Aileen Cannon and be obvious about it. A simple “cert. denied” leaves room only for supposition, however strong the case is that they happily support Trump, if for no other reason than because he’s not Joe Biden.

        • SelaSela says:

          I love your optimism, assuming there would be an appeal on Aileen Cannon’s trial. The way things are heading, there may never be a verdict on this case, so there would be nothing to appeal.

          It would keep getting delayed, and if Trump get reelected (which is quite likely based on current polls), it would get dismissed by Trump’s AG.

          • c-i-v-i-l says:

            FWIW, from Brandon Van Grack:
            “The slightest glimmer of hope that the Mar-a-Lago case could happen this year. The Court granted DOJ request to prepare a jury questionnaire even though much of the court schedule is up in the air. DOJ had asked for a February 2 deadline; court set it at February 28”

          • Dave_MBSC says:

            I think it’s far too soon to say that Trump being elected is quite likely. Current polls have Biden leading, but within the margin of error.

            I think we can say is that it will be much closer than we would like or expect.

          • earlofhuntingdon says:

            Polls this far out from an election are no help in predicting a winner 11 months from now. They are even problematic in forecasting how people would vote today, because there’s no cost to today’s choice.

      • Ebenezer Scrooge says:

        I’m not sure that the majority wants to benefit Trump. They’re loyal Federalists, not Trumpies. Roberts certainly sees that the Supreme Court will become irrelevant under a Trump administration, along with the entire pretense of rule of law. I think the same is likely true of Kavanagh and perhaps Barrett.

      • ToldainDarkwater says:

        I was thinking of Judge Cannon, who now appears to have the attitude of helping Trump as much as possible while staying within the guardrails of precedent, and not wanting another smackdown from the appeals court.

        Of course, there’s no appeals court for SCOTUS, but I think most of them are quite aware and on board with the idea that what happened on 1/6 was/is a big problem. But helping Trump delay? That’s just fine, it doesn’t change any outcome.

    • P’villain says:

      This is what matters most. We are exactly where we were before Smith’s team filed their petition. A few more days have run off the clock, but the DC Circuit is expediting their decision. One scenario was always that SCOTUS would deny cert if the DC Circuit upheld Chutkan, and that scenario is still in play. What matters most is how long all of this takes. As bmaz said, not what I wanted. But it’s not gonna spoil my long weekend.

  5. Jordan Orlando says:

    Maybe this is good…? I mean Roberts has proven his canniness at cherry-picking cases to throw to the liberal justices, in the interests (everyone assumes) of maintaining “legitimacy.” Conversely, here — and with the appeal on the Colorado thing — is where they cover themselves with the MAGA base before they rule against Trump’s immunity.

      • c-i-v-i-l says:

        Apparently for cases where the application for cert is submitted before judgment of the appeals court, it takes 5 to grant cert, not 4.

    • earlofhuntingdon says:

      It means not a single radical member voted to accept cert. It means the Court most likely won’t decide the issue this term or before the election. That’s a very pro-Trump stance, given that they’ve accepted cert. before, in similar procedural circumstances, when it suited them.

      • Jordan Orlando says:

        But respectfully, that’s what I’m saying — it’s not. The “very pro-Trump stance” is, he’s immune. All of this is just procedural.

        ON EDIT: I realize that every delay benefits Trump; I’m simply saying that if you wanted to deny his claim of absolute immunity but didn’t want to look Partisan or like you’re “the swamp” swinging the election you’d vote cautiously on these procedural disputes.

      • BRUCE F COLE says:

        Yup and as Vladek noted a few days ago, they granted pre-judgment cert to Trump 5 days before his term expired so that he could execute one more federal prisoner, Dustin Higgs, who had received a stay from the 4th Circuit.

      • P’villain says:

        We don’t know that any Justice voted for cert. No recorded dissents, and had, e.g., Sotomayor dissented, I think we’d have had a written opinion to accompany the vote. She’s not shy.

  6. ExRacerX says:

    As I recall, there was talk here of Jack Smith indicting one or more of Trump’s as-yet-unindicted co-conspirators if the Supremes punted on this issue.

  7. RitaRita says:

    The Court didn’t want to spoil their holiday.

    Or, they need more time to prepare security for the predictable onslaught of threats

    In all seriousness, who knows why?

    • CJCJCJCJ says:

      If those were the reasons, they’d have just punted making a cert decision to the next conference (perhaps repeatedly).

    • Vinniegambone says:

      “Fuck the voting. Lets go straight to the violence.” …sayeth Snot Rag Rodger Stone.
      This steady stream of death threats and other introductions of harassment tactics- this is a form of violence. Is this not illegal? When a Federal Judge or an election worker is put upon by the dogs as it were, is there ANY law enforcement follow up? Is there any effort to trace the number from which the call was made?

      When the US Supreme Court members, or Colorado’s are subjected to this type of insult to their peace of mind, is there no action taken?

      It is my suspicion, based on the frequency and the rapidity of these threats after major announcements, that they are all, or mostly, sourced from one or two networks setup precisely to do this type of dirty work. And it seems to be the type of work Stone would approve of at the least, and possibly be apart of, at the worst.

      Dunno, seems like someone does the information research, then distributes the phone numbers for the ” normies” to utilize.
      Love to see evidence of serious scrutiny and indictments on death threat practice.

      Likely no one discusses it publicly for fear of engendering even more of it.

      • trnc2023 says:

        People have been prosecuted for threatening judges, but the trick is determining which threats are credible. Most are made by wannabe tough guys who know they’ll likely remain anonymous on the Internet.

  8. OldTulsaDude says:

    What else to expect from a country where 46% of the electorate equates to a majority.
    Source Pew Research 2016 presidential election

  9. John Forde says:

    If the Apellate court rules against absolute immunity is there any chance the SC just lets that stand and denies cert? It would save time.

      • earlofhuntingdon says:

        As if it wasn’t already acting with dispatch, the DC Circuit will respond to this denial of cert by promptly issuing its decision.

        • SteveBev says:

          It is clear, to me at least, that the DC Circuit will decide quickly.
          And perhaps quicker than they might have done had SC not petitioned for cert.
          Given that the ultra speedy schedule in the Circuit court was announced before the denial of cert, isn’t it possible that SCOTUS are taken advantage of that to maintain an ‘appearance of even handedness’ which would have been questioned had they granted cert.
          Of course they may be a manoeuvring to advantage Trump. But is there perhaps room for a more benign interpretation, that the motivation is more to manage the optics of their involvement.
          The test for that proposition, I suppose would be the reaction to the DC Circuit decision and what if anything happens with any Trump request for en banc review

          • emptywheel says:

            Yeah, if they rule quickly, lift the stay, then SCOTUS will have to act quickly.

            And SCOTUS might prefer to do what they did with the EP decision in 2022, to simply deny cert.

    • c-i-v-i-l says:

      It’s certainly possible, but presumably depends on the details of the ruling. Somewhat related, Steve Vladeck notes that “For those who are worried about Trump slow-walking an appeal to #SCOTUS if the D.C. Circuit rules against him on immunity, the court of appeals can preempt that by doing what the Colorado Supreme Court did—a stay that expires unless Trump seeks certiorari within n (say, 14) days.”

      • timbozone says:

        Seems unlikely the DC Apeals court would bother special casing this, although maybe Jack Smith will get his way there, forcing Trump to move this to Supreme Court in January.

    • Yargelsnogger says:

      That’s what I was thinking too. Are they just looking to avoid doing the work and/or getting their hands dirty – let the circuit court make the obvious ruling, then not accept the appeal? Keep themselves out of the fray at all costs, basically.

  10. Pick2OrPass says:

    Is it possible that rulings coming out of those lower courts in the near future will be centered enough that – well, planning to appeal something that hasn’t even been ruled on yet, I guess that’s one way to weigh one’s options and plan for the future… but is it possible those rulings will make sense enough that any imminent appeal doesn’t even have to be considered by the Supreme Court, and they can just sit any of those out too, and it’s fine? Is it possible the lower court decisions won’t be so ambiguous? Or does the Supreme Court really need to be the deciders?

    It’s such a strange thing to me, on one hand pleading immunity to everything and on the other swearing up and down that no offenses have been committed. It’s kinda weaksauce. As hugely historic as the defense paints “the decision” (what decision?) to be I was looking forward to their writings on the subject but then the way they treated it it I would have dismissed their essay and gone home to the holidays too. I don’t think any favors have been had here, if anything, just racking up more billing time for someone.

    • P J Evans says:

      He’s still claiming he really won in 2020, while running for next year. If he “really won” then he’s ineligible to run in 2024 – by the 22nd Amendment, which has been around since 1951, and starts out “No person shall be elected to the office of President more than twice”.

      • trnc2023 says:

        I wouldn’t expect anything else from the guy who says the FBI planted classified docs at MAL and that he’s their rightful owner.

  11. Carl Weinschenk says:

    So if the circuit rules no immunity, it could also lift the stay and let the trial proceed while the SC deliberates and not having to sit on their hands while trump appeals? If the answer is yes, this seems to be the correct decision, IMO. It would give the SC the extra insight provided by the district opinions. IANAL, but this seems pretty obvious. The system is set up to give the SC the final say for a reason. Having them do so without the circuit weighing in seems to go against that philosophy. Again, if I am correct about the circuit lifting the stay.

    • earlofhuntingdon says:

      This Court’s majority is heavily ideological. It has granted cert. in similar procedural circumstances when it wanted the case. The district court has already established the factual basis for review. The Court could have dealt with that record as easily as the DC Circuit. It didn’t want it or to move the case faster.

      The DC Circuit is likely to move expeditiously and write an excellent opinion, which is likely to uphold the district court in all respects. Whether that allows the district court to proceed depends on the Supremes.

  12. Amicus12 says:

    There is certainly no need to panic at present.

    The D.C. Circuit can act quickly and – hopefully – issue an extremely narrow decision. At bottom, it’s an easy case. Judge Chutkan is correct that the judicial recognition of immunity is non-textual and policy based. The court of appeals can resolve this in full simply by ruling that whatever immunity a President enjoys from criminal prosecution it cannot encompass illegal acts to defeat the electoral process and obstruct or defeat the peaceful transfer of power. Because to find otherwise is to effectively jettison the Constitution
    So, what then? It is not a foregone conclusion that the Court will grant cert from such a decision. It’s probably quite likely because every justice will be animated to have their say on this issue, apparently akin to how the Court in fact decided Nixon v. United States
    If Trump winds up going to trial in June as opposed to March, it makes little difference. As the commentariat and the man on the moon understand, the core issue is that he stands trial before the election.

    • SteveBev says:

      I had also wondered whether a hair on fire reaction is definitely warranted.

      But isn’t a key question now whether the DC Circuit panel will be unanimous? In which circumstances wouldn’t en Banc review be less likely?

      • P’villain says:

        I consider en banc review unlikely under any circumstances, but they’ll be able to eat up a bit more time seeking it. I also would be stunned by a split decision from the panel.

        • SteveBev says:

          Those were my thoughts too, and I would hope that a refusal of en banc would be pretty swiftly dismissed.

          If the panel ruling includes a provision lifting the stay on the District Court proceedings, could they not craft the order in such a way as to put a tight grace period for Trump to either
          1 petition SOTUS for cert; or
          2 obtain (sic) the grant of en banc review

          ie force Trump into swiftly addressing his appeal options by not rewarding any efforts by him to delay filings? Or are such ideas too contrived?

      • Amicus12 says:

        Trump’s topside brief is due to be filed in the D.C. Circuit today. He’s pretty much locked in by what he argued below and I expect we’ll see much of the same: he acted to preserve election integrity (gag) and thus took care to see that law (whose law?) was faithfully executed. The D.C. Circuit does not suffer fools lightly.

  13. bloopie2 says:

    Well, they could have taken the case and then ruled, “immune”. As the old joke went, “Cheer up, things could get worse. So I cheered up and, sure enough, things got worse.”

  14. sk0rk0 says:

    What is the process for review of this by the court? Is this a decision reached by the entire court and if so would any dissent be indicated?

    Sorry about my name. I think used a proper eight-character name somewhere, but I can’t remember it.

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    • boloboffin says:

      My understanding is that dissents can be noted but don’t have to be. No dissents were noted for this denial.

  15. harold hecuba says:

    Not overly surprised and not overly concerned. Yet.

    My own (naive? delusional?) thought is that Trump actually won’t be the presidential candidate in ’24. Yes, yes, poll numbers…but I don’t think they can be taken at face value at this moment. The economy had more good news, I’m cautiously optimistic for more economic good news in1Q24/2Q24, and more GOPers are abandoning Trump. Is it enough? I think so.

    And while I’m making wild ass guesses, I think Christie will fail miserably in the caucuses and he’ll end up supporting Haley (in the hopes of getting that USAG he always wanted). DeSantis will take a little longer, but he’ll eventually fall in with Haley. IF all that happens, I think Haley becomes the GOP candidate, not Trump, and you’re going to be looking at the first woman president being sworn in.

    Also, I’m usually wrong.

    • wa.rickf says:

      Vindictive Trump supporters prefer “alpha males” and they will NOT be voting for a woman – and certainly NOT a brown woman. I doubt a Liberal woman would vote for Haley due to her stance on abortion.

    • fatvegan000 says:

      In the highly unlikely event that Haley were to pull out a primary win, Trump will just claim fraud and commence a write-in campaign, diluting the R vote and assuring a Biden win.

      But upon further thought, he’s pretty desperate, so he might angle for the VP slot and a guaranteed pardon.

  16. wa_rickf says:

    Writ of certiorari is not unprecedented. Perhaps this SCOTUS is too scared to rule given the death threats the CO Supreme Court received this week.

  17. Konny_2022 says:

    I’m somewhat disappointed b/c I found the SCO’s petition pretty compelling. However, I think at this moment that the SC justices just want the DC Circuit to pull their chestnuts out of the fire while themselves keeping a low profile on this issue, at least for the time being.

  18. Sussex Trafalgar says:

    Indeed! Correct!

    This issue and Trump himself are not ripe enough yet for Roberts, Kavanaugh and Barrett to rule against Thomas, Alito and Gorsuch.

    Once the Trump stink is unbearable for Roberts, he’ll spend some of his reputation capital to convince Kavanaugh and Barrett to hear and rule on this issue and the other future issues Trump will throw at him.

  19. sohelpmedog says:

    Agreed. Argument in the Circuit is set for Jan 9, with a likely ruling denying Trump immunity very soon thereafter. Then Roberts only needs to convince Barrett and Kavanaugh not to vote for cert. Chestnuts saved. Not roasting on an open fire.

  20. Christopher Smith says:

    No one knows what this means yet, we don’t have enough information. But I’m see a lot of folks get way out over their skis to catastrophize about it anywa.

    Some are speculating it means they’ll let the appellate court rule, and deny cert.

    Also I’ve read that this doesn’t necessarily change the trial date either.

  21. RitaRita says:

    Does Trump get 2 bites at the executive privilege apple? One now and one on appeal of a conviction?

    Are the facts of the case fully developed enough for the Supreme Court to rule on the question? I am thinking of the “outer perimeter of executive action” argument.

    A Supreme Court decision on this issue is of such import that I want them to have the benefit of the DC Appellate Court.

    • earlofhuntingdon says:

      They don’t need the DC Circuit opinion. They’ve dispensed with similar opinions before since the radical majority took over. They’re buying time, not waiting for fuller advice from the courts below.

  22. OnKilter says:

    Well, let’s consider the possibility that the trial is held on time, or in June, despite the appeals process.

    And then consider the possibility that Trump is acquitted just a month or two before the election.

    A real possibility.

    • earlofhuntingdon says:

      I think that underestimates how seriously most people take jury duty. I also think a hung jury is much more likely than an acquittal.

  23. morganism says:

    Delay tactics may bring more trouble at this point. There seems to be more superseding indictment filler exposed every week. Could be the person overseeing the NY properties is going to stumble over a storage locker with some of the docs from MAL at some point too….

    • bmaz says:

      How many “superseding indictments” would you like to see? Are they simply unlimited? And every time this is pulled by DOJ/Smith, it weakens and strings out the tightly charged cases Smith already has filed. That is not a good plan on cases that so many people are already beyond hyperbolic about as to timeframes. Again, is there simply no end? Public cheering for such a plan is getting ludicrous.

  24. LaMissy! says:

    I don’t think Jack Smith is dumb or hasty. Surely he has gamed out what his next play will be before this motion failed.

    • Zinsky123 says:

      I agree. Smith’s motion was just to jump start the process. I heard a commentator on Sirius XM remark that by allowing this motion to follow normal course, through the appellate court first, it forestalls Trump’s inevitable. “deep state” and “Roberts court” claims. Most legal analysts believe the thesis that a president has absolute immunity for criminal acts committed while in office, is preposterous and both both appellate and SCOTUS decisions should be swift, scathing and decisive against Donald Trump.

    • brucefan says:

      My anxiety level from the cert denial went down when I looked at US v Nixon and saw that Nixon had filed a cross petition for cert, essentially waiving his right to a proceeding before the DC Circuit. US v Nixon is distinguishable, and the other pre judgment cert cases cited by Smith were not criminal cases,

      Upholding Trump’s right to avoid prison by arguing at every court available to him seems uncontroversial, and a 9-0 denial of cert would not surprise me (if that is what happened).

      It is interesting Trump did not make this point in his reply brief.

  25. P J Evans says:

    TFG has filed his brief.
    First two paragraphs:

    During the 234 years from 1789 to 2023, no current or former President had ever been criminally prosecuted for official acts. That unbroken tradition died this year, and the historical fallout is tremendous. The indictment of President Trump threatens to launch cycles of recrimination and politically motivated prosecution that will plague our Nation for many decades to come and stands likely to shatter the very bedrock of our Republic—the confidence of American citizens in an independent judicial system.
    Under our system of separated powers, the Judicial Branch cannot sit in judgment over a President’s official acts. That doctrine is not controversial. It was treated as self-evident and foundational from the dawn of the Republic, and it flows directly from the exclusive vesting clause of Article II. In 1803, Chief Justice Marshall endorsed it, writing in Marbury v. Madison that a President’s official acts “can never be examinable by the courts.”

    • Zinsky123 says:

      Thanks PJ and TY for the link. That opening paragraph from the brief (page 15) is inflammatory in itself. First, Trump is not being indicted for “official acts”. How is plotting and taking steps to create fraudulent slates of electors, an “official act”? Also, the brief presumes that the mere act of indicting an ex-president will “launch cycles of retribution [theres that word] and politically motivated prosecution for decades to come…” Really? On what basis is that prediction made? Or is that declarative statement more intentional?

    • harpie says:

      Thanks, PJ!

      On Xitter, Marcy wonders “whether John Sauer should have listed Mark Meadows’ decision in 11th C, which ruled that virtually everything Meadows is accused of in GA is not official duties?”
      7:23 AM · Dec 24, 2023

      Not mentioning that William Pryor ALREADY dismantled the primary argument in this brief, and in the criminal context, seems … like more than an oversight, no?

    • harpie says:

      And Teri Kanefield:
      Dec 23, 2023, 23:14 · Edited Dec 24, 24:00

      […] #2 is the doozy.
      Dear Court: You have no power to sit in judgment of MEEEE.
      It’s laughably absurd. 1/ […]

      Apparently Trump found a quotation from Chief Marshall. He gives the quotation like this:

      As Chief Justice Marshall wrote in Marbury v. Madison, the President’s official acts “can never be examinable by the courts.”
      Me: “Really? Marshall said that?”

      So I pulled up a copy of Marbury v. Madison and started doing word searches. Of course Marshall didn’t say that.
      Here’s the case. You can see for yourself: [link] […]

      It just seems like EVERY single argument is a bad faith argument.
      It must be ALL they have.

    • matt fischer says:

      Leave it to Team Trump to argue that Marshall’s opinion in Marbury v. Madison barred judicial review of the Executive, rather than firmly established it.

    • timbozone says:

      Maybe the lawyer who wrote and submitted that brief is from the Bizarro Dimension. That’s my dime store opinion right there. Imma think that no self-respecting judge would give such patent incompetence and overt false statement the time of day…but what does Bizarro counsel for Trump know what we don’t about our judiciary?

  26. Willis Warren says:

    eh, it’s already fastracked to the lower court, so my best guess is SCOTUS is just gonna let that get smashed and deny

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