The Supreme Court’s announcement that it will hear Donald Trump’s argument for immunity in his January 6 criminal case was a major break for the former president, who may not face a trial on those charges until after the election. The announcement incensed many Americans, who suggested that the court was in the tank for Trump, who appointed half of the 6-3 conservative majority. For legal experts examining their every move, it was also a peek at the internal divisions within the court’s voting blocs. I spoke with University of Texas law professor and CNN Supreme Court analyst Steve Vladeck to help understand the decision and what it could mean for Trump’s claim of immunity.
What’s your top-line read on the Supreme Court’s decision to consider this case?
The problem is the top line is complicated. It’s not what Jack Smith wanted, right? It’s not what a lot of people wanted. I also think that in the grand scheme of the Supreme Court’s role in our system, it’s not especially surprising that this is where we ended up. And that as much as many of us are fixated on the political emergency of trying to have this trial unfold before the November election, that probably was, and maybe ought to be, less of a driving factor for the court.
Less of a factor in what way?
Well, it’s not the court’s job to do things that are politically convenient for others. I think the problem is that as much as folks are criticizing the court for acting in a way that they believe is political and helpful for Trump, the court, I think, also could reasonably have been worried about acting in a way that was perceived as just being politically helpful to Smith.
If you start from the perspective that the court had no neutral way to avoid looking deeply political here, then what it actually did, I think, looks a little more reasonable in perspective.
And I mean, there are a lot of folks out there who say, “Why is the court weighing in if the answer so obvious?” But the Supreme Court has long taken the view that it should take up cases that raise important questions of federal law that the court has never answered. And who can deny that this is one of those?
It took the Supreme Court about two weeks to reach this decision after Trump’s attorneys requested they consider the case. That timeline suggests that there was some negotiation on the court to get four justices to agree to grant a cert. I was wondering if you could speculate as to how this all played out behind the scenes?
Given that it took two weeks and that there was no separate writing, I think the most likely explanation is that there was an effort to see if there were five votes for a more decisive disposition. And my best guess about how we ended up here is that there were two blocs of justices at opposite ends. There was one bloc of justices that wanted to keep the prosecution on hold and not hustle. And there was one bloc of justices that wanted to maybe stay out of the case altogether. And neither of those blocs could count to four, let alone five.
What would a more decisive disposition have looked like?
The court could have denied the stay and let the case go forward. The court could have issued a summary affirmance of the D.C. Circuit, like a brief unsigned per curiam opinion of the court. Again, those would’ve been, frankly, surprising had they happened. But I suspect that there was at least some effort to float other possible outcomes, because this was always the obvious compromise.
When folks were handicapping the options two weeks ago, this one was one of them. I think the only reason why people soured on it was because it didn’t make sense why it would take this long to get to it.
You said on CNN that it’s hard to indicate from this decision how the court will ultimately rule on the immunity claim. Why is that so difficult to determine?
The way the court interpreted the Trump team’s arguments is interesting, because in one respect, the court has basically kept some of Trump’s dumbest arguments out of the case. For example, Trump’s claim that double jeopardy somehow protects him from prosecution is nowhere in the question presented. But the way the court wrote the question also opened up the possibility that the court might try to split the difference and say that there might be some acts for which Trump can plausibly claim immunity, but not all of the ones that are charged in the indictment. You can read the way the court wrote the question as presented to mean lots of different things, and that itself might be by design. Not to throw us off the scent, but because at least some of the justices themselves are struggling with what they want to do here
So keeping out what you called the “dumbest arguments” could be read as a good indicator for Trump’s chances in this case?
Yeah, but you could also see it as a bad one. That instead of taking the case the way that Trump had framed it, they took it the way that they wanted to frame it. To me, all it says is that there’s some amount of debate going on inside the court, that the court has not made up its mind about how it’s going to rule.
In the same way that this was an obvious compromise on this matter, would it not be the obvious decision that a 6-3 conservative majority ultimately rules in Trump’s favor in some fashion?
I don’t think that’s obvious at all. Because that’s where I think it’s much more likely that you would see a difference, perhaps even among and within the six Republican appointees. I can see a world where a Justice Barrett and a Chief Justice Roberts look at that question differently from a Justice Alito.
I think that it is really hard to determine how the court’s going to rule just based on the fact that they’ve agreed to take up the case on the terms on which they’ve taken them up.
This interview has been edited for length and clarity.
