How the Supreme Court weaponizes its own calendar

Plus: Great news about air travel, bad news about bird flu, and more. April 25, 2024 [View in browser]( Good morning! Today, the Supreme Court will hear former President Donald Trump's suit over presidential immunity. Senior correspondent Ian Millhiser unpacks what's really going on with this case. —Caroline Houck, senior editor of news   [Donald Trump shakes hands with Justice Neil Gorsuch] Mario Tama/Getty Images Delay is Trump's best friend Today, the [Supreme Court]( will hear what might be one of its least consequential arguments in modern history. I’m referring, of course, to [Trump v. United States](, the case asking whether former [President Donald Trump]( is immune from a federal criminal prosecution arising out of his failed attempt to overturn [President Joe Biden](’s victory in the [2020 election](. This is one of the most widely followed cases the Supreme Court has heard in recent memory. For the first time in American history, a former president faces criminal charges. And these charges are a doozy, alleging that Trump [targeted our democracy itself](. So why is this argument so inconsequential? The answer is that Trump has already won everything he could reasonably expect to win from the Supreme Court, and then some. Even this Supreme Court, with its 6-3 Republican-appointed supermajority, is unlikely to buy Trump’s argument that former presidents enjoy broad immunity from criminal prosecution. Trump’s lawyers have not even attempted to hide the implications of this argument. When the case was heard by a lower federal court, a judge asked Trump’s lawyer if the former president was immune from prosecution even if he’d [ordered “SEAL Team 6 to assassinate a political rival.”]( Trump’s lawyer responded that Trump was immune, unless he were first impeached and convicted by the Senate. If you’re curious about the legal arguments in this case, [I dove into them here](. But again, they are a sideshow. Trump’s goal is to delay his trial for as long as possible — ideally, from his perspective, until after this November’s election. And in this respect, the Supreme Court has [already given him what he wants](. So long as this case is sitting before the justices, that trial cannot happen. And the justices have repeatedly refused [special prosecutor Jack Smith’s requests]( to [decide this immunity question]( on an expedited schedule that would ensure that Trump’s criminal trial can still happen before November. This decision to put Trump’s appeal on the slow track is [part of a much larger pattern in this Supreme Court](: The justices do not always need to rule in favor of a conservative party on the merits in order to achieve a conservative result. They can do so simply by manipulating their own calendar. [Former U.S. President Donald Trump is displayed on a screen during a meeting of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol in the Canon House Office Building on Capitol Hill on December 19, 2022 in Washington, DC] Al Drago/Getty Images How the Court games its calendar to benefit litigants on the right By handling requests from Republican litigants with alacrity, while dragging their feet when a Democrat (or someone prosecuting a Republican) seeks Supreme Court review, the justices can and have handed big victories to right-wing causes while simultaneously sabotaging liberals. Before the Trump case reached the Supreme Court, this penchant for manipulative scheduling was [most apparent in immigration cases](. During the [Trump administration](, lower courts often handed down decisions blocking the former president’s immigration [policies](, and the Court (often over the dissent of several justices appointed by Democrats) moved quite swiftly to put Trump’s policies back in place. In [Barr v. East Bay Sanctuary]( (2019), for example, after a lower court blocked a Trump administration policy locking many migrants out of the asylum process, the Court reinstated this policy about two weeks after the administration asked it to do so. Similarly, in [Wolf v. Cook County]( (2020), the Court reinstated a Trump administration policy targeting low-income immigrants [just eight days]( after Trump’s lawyers sought relief from the justices. Once Biden came into office, however, the Court hit the brakes. In August 2021, for example, Judge Matthew Kacsmaryk — a Trump appointee who is known for handing down poorly reasoned decisions [implementing right-wing policy preferences]( — ordered the federal government to reinstate a Trump-era [immigration policy]( known as “[Remain in Mexico](.” Though the Supreme Court eventually reversed Kacsmaryk’s decision, it [sat on the case for more than 10 months](, effectively letting Kacsmaryk dictate the nation’s border policy for that whole time. Similarly, after another Trump-appointed judge struck down a Biden administration memo laying out [enforcement priorities for Immigration and Customs Enforcement](, the Court [waited about 11 months]( before finally intervening and restoring the administration’s longstanding power to set priorities for law enforcement agencies. The point is that, even in cases where the justices ultimately conclude that a conservative litigant should not prevail, they frequently hand that litigant a significant victory by sitting on the case and allowing a Republican policy to remain in effect for sometimes more than a year. (Given the slow pace of most litigation, this might not be particularly remarkable — except for the stark difference in how the Court has treated suits against Trump and Biden’s policies.) The Court’s ability to set its own calendar allows it to manipulate US policy without actually endorsing lower court decisions that cannot be defended on the merits. The Court’s behavior in the Trump immunity case is a close cousin to this tactic. Again, it is difficult to imagine even this Supreme Court ruling that presidents may commit crimes with impunity. But the Court does not need to explicitly declare that Trump is above the law to place him above the law. All it has to do is string out his immunity claim for as long as possible. —[Ian Millhiser, senior correspondent](   [Listen]( Columbia’s free-speech fight Daily Spectator news editor Sarah Huddleston reports on the protests at her university. AAUP President Irene Mulvey explains the stakes for campus free speech. [Listen now](   YIKES - Remnants of bird flu have been found in milk: It’s not a risk to consumers, so no need to go dump your dairy products, but it is a reminder of the virus’s spread in an increasing number of mammals. [[NPR](] - How Florida continues to punish people after they’ve served their time: A Florida law charges inmates $50 a day for their prison stay — and it’s based on the person's sentence. In other words, even if someone is released early, they end up “paying for a cell they no longer occupy, and regardless of their ability to pay.” [[ABC](] [milk cartons] Gado/Getty Images AMERICA - ICYMI: The US over the weekend reauthorized an oft-abused surveillance program, Section 702 of the Foreign Intelligence Surveillance Act. The program targets foreigners' communications — but [authorities can also access Americans’ communications without a warrant](. [[NPR](] - The Columbia protests, explained: “Once again, top universities have become the locus around which America litigates questions about the US’s support of Israel amid its deadly war in Gaza, free speech, antisemitism, and anti-Muslim discrimination — and a convenient target for political elites looking to make a point.” [[Vox](] GOOD NEWS - I had almost given up hope this would ever happen: Biden’s Department of Transportation announced a new rule requiring airlines to give customers prompt refunds when flights are canceled or significantly changed. [[Insider](]   Ad  [Learn more about RevenueStripe...](   How to navigate allergies this spring Four tips for dealing with a ferocious allergy season from Vox's Keren Landman, MD. [Read more »](   Are you enjoying the Today, Explained newsletter? Forward it to a friend; they can [sign up for it right here](. And as always, we want to know what you think. We recently changed the format of this newsletter. 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