In the coming days, the US Supreme Court will confront a perfect storm mostly of its own making: a trio of decisions stemming directly from the January 6, 2021 attack on the US Capitol.
Within days of each other, if not hours, the justices are expected to rule on whether Donald Trump has immunity from criminal charges over his efforts to overturn his 2020 election defeat and whether Trump supporters who stormed the Capitol can be prosecuted for obstructing an official proceeding.
The court also will decide whether former Trump adviser Steve Bannon can stay out of prison while he appeals his contempt of Congress conviction for defying a subpoena from the House committee that investigated the Capitol attack.
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These cases are among the dozen or so major disputes dealing with abortion, homelessness, the power of federal regulators, the opioid epidemic and social media platforms that the justices have left to decide as the traditional end of their term’s work nears.
Taken together, the three cases connected to the former president could feed narratives about the court and its conservative supermajority, which includes three justices appointed by Trump and two other justices, Samuel Alito and Clarence Thomas, who have rejected calls to step away from the January 6 cases because of questions about their impartiality.
From the perspective of Trump and his allies, the outcomes could provide more fodder for their claims that the Justice Department has treated the Capitol riot defendants unfairly. The riots resulted in more than 1400 criminal cases in which 200 people have been convicted and more than 850 pleaded guilty to crimes.
That has not deterred Trump and his allies from claiming the Justice Department has treated the Capitol riot defendants unfairly. The outcomes of the cases could give them more reasons to decry the prosecutions.
The court’s handling of the immunity issue already has provoked criticism, both that the justices took up the issue at all — particularly given a unanimous federal appeals court ruling that rejected Trump’s claim — and more recently that they haven’t yet decided it.
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Even if the court limits Trump’s immunity, or rejects his claims altogether, allowing his trial on election interference to go forward in Washington means “it is unlikely a verdict will be delivered before the election”, University of Michigan law professor Leah Litman wrote in The New York Times.
While the court has moved more quickly than usual in taking up the immunity case, it has acted far more speedily in other epic cases involving presidential power, including in the Watergate tapes case.
Nearly 50 years ago, the court ruled 8-0 a mere 16 days after hearing arguments that Richard Nixon had to turn over recordings of Oval Office conversations, rejecting his claim of executive privilege.
In March, it took the justices less than a month after arguments to rule unanimously that the Constitution’s post-Civil War “insurrection clause” couldn’t be used by states to kick Trump off the presidential ballot.
The three cases related to Trump’s effort to undo his election loss in 2020 highlight how often he has appeared in the court’s work this year, though now he is doing so as the Republican Party’s presumptive nominee for president. Trump also was a factor in two social media cases and even a trademark dispute over the phrase “Trump too small”.
The court almost always finishes its work by the end of June, but it’s not certain that will happen this year.
The court will next issue decisions on Wednesday.
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