One reading The New York Times news report of the Supreme Court’s 5-4 denial of President-elect Trump’s emergency application for a temporary stay of his sentencing in the so-called New York “hush money” case would think that the court was sharply critical of Mr. Trump’s efforts and that the vote was the product of some intense infighting amongst the Justices over the merits of his arguments.
Thus, the story was headlined, “A Rebuke to Trump Provides a Telling Portrait of a Divided Supreme Court.” And it went on to describe the five vote majority as consisting of three liberal and two conservative justices as having “provided a vivid and telling snapshot of the court as it prepares to face a second Trump administration and the torrent of litigation that is sure to follow.”
But that is very far from what really happened. In fact, the episode actually indicated that, up the road, when the court will likely take up the case on the merits, there will be a majority of justices poised to dismiss the pastiche of a case Manhattan DA Alvin Bragg conjured up against Donald Trump and fire a broadside at lawfare generally. And this fairly leaps out from the words of the Court’s order (reproduced below) denying Mr. Trump the relief he sought:
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ORDER IN PENDING CASE
TRUMP, DONALD J. V. NEW YORK, ET AL.
The application for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons. First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of “unconditional discharge” after a brief virtual hearing.
Justice Thomas, Justice Alito, Justice Gorsuch and Justice Kavanaugh would grant the application.
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So, the court’s ruling did not touch on Mr. Trump’s substantive presidential immunity or lawfare defenses. Nor did it appear to follow any heated debates over them. The subject of the discussions seemed rather the pedestrian inquiry into whether Mr. Trump’s concerns needed emergency attention or could be addressed in the normal course of the appellate process. And in the view of the majority there was little down side to waiting.
But it was the view of the four Justice minority that was the far more intriguing. Despite the existence of factors pointing to a lack of an emergency, those four were still prepared to put the Trumpian arguments into play. So, whereas the majority of justices did not necessarily telegraph their views on presidential immunity or lawfare, the minority justices did.
Since it ordinarily takes at least four votes to get a case before the Supreme Court, it seems certain that the court would take up the case if the Trump team wants to bring it there. And as to the outcome, two of five justices in the current 5-4 majority are two conservatives, Justices Barrett and Roberts, at least one of whom could be peeled off to join the current minority of Kavanaugh, Alito, Gorsuch, and Thomas. Indeed, Barrett and Roberts could well agree with Trump on presidential immunity and/or lawfare but were swayed by a possible belief that there was no emergency.
So much for honest reporting from The New York Times. We are all aware about what The Times thinks of Donald Trump. But really, what was their point?
