Trump shaped the Supreme Court. Now he wants his victory.

Few cases have held stakes so high for the court itself, with the justices at pains to show a polarized nation that it can resolve a dispute fairly both to Trump and the constitutional system he allegedly sought to subvert. (Wall Street Journal)
Few cases have held stakes so high for the court itself, with the justices at pains to show a polarized nation that it can resolve a dispute fairly both to Trump and the constitutional system he allegedly sought to subvert. (Wall Street Journal)

Summary

The former president expects loyalty while the justices stress independence.

WASHINGTON—Creating a conservative supermajority on the Supreme Court was perhaps the crowning achievement of Donald Trump’s presidency, with three appointees who delivered generational victories, including the elimination of abortion rights and the abolition of affirmative action.

But the court has been no balm when it comes to Trump’s personal interests, leaving the former president fuming in several past cases after his appointees rejected his expansive claims of executive power or unfounded allegations of election irregularities.

Now more than ever, the court holds Trump’s future—and perhaps his freedom—in its hands.

On Thursday, the court will consider whether the former president must stand trial on federal charges of attempting to steal the 2020 election he lost to Joe Biden. How the court rules could affect several of the prosecutions Trump is facing. And with legal battles surrounding the 2024 election expected to be intense, the justices could find themselves with additional cases before year’s end.

Few cases have held stakes so high for the court itself, with the justices at pains to show a polarized nation that it can resolve a dispute fairly both to Trump and the constitutional system he allegedly sought to subvert.

“To a degree, the court is almost on trial itself," said Grier Stephenson, a government professor and Supreme Court scholar at Franklin & Marshall College. “They’ve got to be concerned about perceptions of the institution because ultimately that’s all the court has: public confidence."

Thursday’s case is the former president’s last-ditch attempt to quash charges that his efforts to retain power after losing the 2020 election violated several federal laws, including conspiring to violate the constitutional right to vote and have one’s vote counted. In legal papers, Trump’s lawyers put forward perhaps the most expansive vision of executive power ever argued before the high court, claiming that almost without exception former presidents cannot be prosecuted for crimes they committed while in office.

While denying that Trump committed any crimes, they argue that the Constitution contemplates that “some level of Presidential malfeasance" is tolerable so that the chief executive isn’t deterred from bold action by fear of prosecution after the White House changes hands. “The Founders viewed protecting the independence of the Presidency as well worth the risk that some Presidents might evade punishment in marginal cases," they argue.

Trump himself framed the argument this way: “If I don’t get immunity, then Crooked Joe Biden doesn’t get immunity," he wrote on social media Saturday.

Since then, he has published a string of posts openly foretelling the end of American constitutionalism—and open season on former presidents—should he lose. Lower courts rejected his arguments.

Special counsel Jack Smith, who has obtained an indictment of Trump in two cases, argues that the former president and his lawyers misunderstand the law—and U.S. history. Not even President Richard Nixon, who asserted a robust vision of executive privilege, denied he could be prosecuted after leaving office, Smith argues, something reflected by his acceptance of a pardon from President Gerald Ford for crimes he may have committed.

“The Constitution does not give a President the power to conspire to defraud the United States in the certification of presidential-election results, obstruct proceedings for doing so, or deprive voters of the effect of their votes," Smith argued in court papers.

Perhaps no president has had his personal and political fates so closely intertwined with the Supreme Court as Donald Trump. And no group of Supreme Court justices has faced such scrutiny for the way it handles the legal perils enveloping a former president. The strength of America’s institutions, under strain since Trump’s rise over the past decade, may well be seen in the way the court navigates its Trump docket, and how the former president’s movement reacts should decisions not go his way.

Public approval of the Supreme Court has plummeted since Trump’s appointments, particularly among Democrats and independents who view the court as implementing a Republican agenda. At the same time, Trump has spent years undermining his followers’ confidence in the judiciary, by lashing out at jurists who have ruled against his wishes.

Because their conservative voting record resonates with the Republican base, Trump has touted his appointees in public appearances. But his displeasure with their approach to his personal cases at times seeps through.

“They are outstanding people and great scholars, brilliant, and they’ve done a very good job," Trump said in an April 2023 speech to the National Rifle Association. “I always say, ‘Except for me, they’ve done a very good job.’"

Privately, Trump has gone further. In a conference call with his attorneys, Trump raged after the court dismissed a December 2020 lawsuit seeking to throw out the electoral votes of four states that supported Biden—and thereby hand the election to Trump—according to a person familiar with the conversation.

Days later, addressing his followers at the Jan. 6, 2021, rally that preceded the Capitol riot, Trump lamented his appointees’ failure to hand him a second term. “I picked three people. I fought like hell for them," he said. “It almost seems that they’re all going out of their way to hurt all of us and to hurt our country."

Trump “clearly has the view that his appointees owe him loyalty," said Tom S. Clark, a political scientist and judicial scholar at Emory University. “It reflects the way he approached governing."

Trump has won some significant victories at the court. It expedited his appeal of a December Colorado Supreme Court decision finding Trump incited an insurrection on Jan. 6 and therefore was disqualified from the presidential ballot by the 14th Amendment. In March, all nine justices voted to restore Trump’s eligibility, ruling that states lacked authority to enforce the disqualification provision.

Even if Trump ultimately loses the election-subversion case, the court already has boosted his legal strategy of delaying the trial, allowing him to campaign and perhaps recapture the White House before proceedings can begin. The justices denied Smith’s requests to expedite the case, and extended their calendar by a day to make Trump’s appeal the final argument of the term. Absent extraordinary speed, a decision is unlikely before late June.

The justices, said a person familiar with the court’s workings, are well aware of the fraught nature of their relationship with Trump—and the way their rulings on his affairs may resonate in a divided nation. The fact that there have been so many cases involving Trump actually could be helpful to the court’s reputation, the person said, because it gives the justices more room to reach split outcomes than if there were a single rise-and-fall case.

Trump had no prior relationship with the three justices he appointed; Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were all nominated after careful vetting by leaders of the Federalist Society and other pillars of the conservative legal establishment. While expressing gratitude to Trump at White House events surrounding their nominations, however, the Trump justices have kept their distance since.

Once-cozy connections between presidents and justices have vanished over recent decades, with the court pulling up the drawbridge after White House tapes revealed that Presidents Lyndon Johnson and Richard Nixon discussed policy matters or pending cases with some appointees after they took the bench, said Brad Snyder, a professor of law and history at Georgetown University.

Back in the 1950s, Justice Hugo Black invited President Harry Truman to join all nine justices at his home for dinner, to show no hard feelings after they rejected his assertion of executive authority to operate the nation’s steel mills in the face of a strike during the Korean War.

“Today, the justices would never have Trump over for bourbon and steaks," Snyder said.

Once confirmed for life to the nation’s most exalted bench, justices have little stake in an appointing president’s personal agenda—and plenty in demonstrating their own impartiality. That was clear in 1974, when three Nixon appointees joined a unanimous decision rejecting the claim that executive privilege shielded White House tapes from Watergate special prosecutor Leon Jaworski’s subpoena. Similarly in 1997, both Bill Clinton appointees joined a unanimous opinion permitting a sexual-harassment suit to proceed against the then-president.

Trump’s appointees likewise have shown him no favoritism. They joined Chief Justice John Roberts’s June 2020 opinion rejecting Trump’s claim that his accountants need not obey a state criminal subpoena for his financial records, and filed no objections to a January 2022 order denying Trump’s request to shield White House records from the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol.

Trump, however, remains optimistic. His social-media stream continues to demand immunity for any crimes he allegedly committed while president, likening his case to the qualified-immunity doctrine that protects police officers from some civil lawsuits alleging abuse or other violations of individual rights.

“You can’t stop police from doing the job of strong & effective crime prevention because you want to guard against the seldom seen ‘rogue cop.’ Sometimes you just have to live with ‘great but slightly imperfect,’" he wrote in a post Monday, using all capital letters.

“Hopefully this will be an easy decision," he concluded. “God bless the Supreme Court!"

Alex Leary contributed to this article.

Write to Jess Bravin at Jess.Bravin@wsj.com

The Supreme Court justices are well aware of the way their rulings on former President Donald Trump’s affairs may resonate in a divided nation.
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The Supreme Court justices are well aware of the way their rulings on former President Donald Trump’s affairs may resonate in a divided nation. (Reuters)
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