The Conservative Justices Wanted So, So Badly to Give Donald Trump a Pass
The Court’s 5-4 order rejecting Trump’s request to block his sentencing makes clear that in just about any other circumstances, the conservatives would have given him everything he asked for.
A New York state court sentenced President-elect Donald Trump to an “unconditional discharge” on Friday, bringing his criminal prosecution for illegal hush money payments to a relatively anticlimactic conclusion. Given that Trump will become President of the United States ten days from now, this sentence—a formality that affirms his 34 felony convictions but entails no substantive consequences—was widely expected under the circumstances, and Judge Juan Merchan, who presided over the case, had already made clear that he would not attempt to sentence Trump to jail time as he prepares to take the oath of office.
Unconditional discharge, Merchan reiterated on Friday, was the “only lawful sentence” he could impose “without encroaching upon the highest office in the land.” If Trump were not president-elect, Merchan continued, he “would not be entitled to such considerable protections.”
The sentence was so unserious that Trump did not even have to physically appear in court in order to receive it. “This has been a very terrible experience,” Trump said, by video from his home in Florida. “I am totally innocent. I did nothing wrong.”
Maybe less surprising than the kid-gloves treatment Trump received on Friday was how many of the Supreme Court’s Republican justices still could not bear the thought of their beloved president-elect having to endure the mild public embarrassment associated with sitting through it. In a one-paragraph order on Thursday, the Court voted 5-4 to deny Trump’s emergency request that they block the sentencing from taking place. In addition to reiterating his ordinary rights to appeal, the Court’s order emphasized that the “burden” on Trump is “relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing.” In other words, How big a deal can this be, really, when literally nothing is going to happen to our sweet, sweet boy as a result?
Justices Clarence Thomas, Samuel Alito, Neil Gorush, and Brett Kavanaugh noted their dissent from the Court’s decision, and would have spared Trump from the indignity of logging in to Zoom for a few minutes from the comfort of his home. What this means is that the three liberal justices still needed the acquiescence of both Chief Justice John Roberts and Justice Amy Coney Barrett to cobble together the barest possible majority to reject the proposition that by virtue of his victory in the 2024 election, Donald Trump, specifically, is immune from any form of criminal process and more or less legally authorized to do whatever he wants.
The Court rarely explains itself in shadow docket cases, and often disposes of them in a single sentence. As Chis Geidner points out at Law Dork, the fact that the Court was considerably more verbose here—two specific reasons for denying Trump’s application, one of which apparently placed great legal weight on the fact that sentencing would be conducted via Zoom—indicates that at least one justice in the majority conditioned their vote on including the nitty-gritty details in the order.
Roberts and Barrett, of course, were part of the majority in Trump v. United States, the case last year in which the Court blessed Trump, then the presumptive Republican presidential nominee, with sweeping criminal immunity for his “official acts” in the White House. If Merchan hadn’t made explicitly clear in advance that Trump would receive nothing more than a symbolic, virtual rap on the knuckles, it sure feels like Roberts and/or Barrett were ready to go the other way, unwilling to subject their party’s leader to the slightest risk of facing meaningful punishment.
One of the legal press corps’s most pernicious habits is grading the Supreme Court’s decisions on a generous curve. But a six-justice conservative supermajority that declines, for now, to grant a Republican president-elect’s demand for unlimited executive power—by a narrowly-reasoned, oddly fact-specific, single-vote margin—is not evidence of moderation or principle or nonpartisanship. It is what, in theory, should be the absolute bare minimum for an institution whose members cannot shut up about their solemn commitment to upholding the rule of law over promoting their personal politics. It is great, I guess, that the Court did not come out the other way; it is pretty fucking crazy, in my view, that the question was this close.
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