Which Supreme Court justices threw Trump the immunity lifeline?



supreme court insurrecrtion 02082024 AP

According to headlines, the Supreme Court has thrown former President Trump a “lifeline,” given him a “gift,” “bolstered” his strategy or handed him a “huge win” by agreeing to consider whether he is immune from prosecution for interference in the 2020 presidential election. 

Indeed, the delay, with the oral argument in Trump v. United States set for April 22, and special prosecutor Jack Smith’s case suspended in the meantime, means that Trump may escape trial before the November election. But it is not quite accurate to say that the Supreme Court as a whole is responsible for providing him with the political advantage he was after. 

In fact, it may be that only a minority of the justices favored hearing the case, with a majority voting to let stand the lower court’s denial of immunity. Justice Clarence Thomas, despite a glaring conflict of interest, might even have cast the deciding vote. 

The Supreme Court’s acceptance of appeals — called a writ of certiorari — requires the votes of only four justices, but the actual total is rarely disclosed, nor are the names of the justices who voted for or against the review. 

The result is a shrouded process in which the public never learns which justices are responsible for placing cases on the Supreme Court’s docket. The secrecy of certiorari votes has gone on for so long that it probably seems normal, but it is otherwise an anomaly in a democratic society. 

It is understandably necessary for the justices to deliberate in private, but that does not require their actual votes to remain a mystery. 

For its first 186 years, the Supreme Court had to accept almost every appeal that came before it. The court only gained discretionary control over its caseload when, at the urging of Chief Justice and former President William Howard Taft, Congress passed the Judiciary Act of 1925, which made the writ of certiorari the nearly exclusive means of review.  

The legislation did not create the “rule of four” requirement for certiorari, nor did it call for secret voting. Those and other details were left to the court, which adopted both practices without written rules or formal announcements. 

The Supreme Court has never explained the rationale for withholding information on certiorari votes. A law professor specializing in Supreme Court practices suggested to me that revealing the specific votes could pressure the justices to provide explanations, which might, in turn, influence the exercise of their discretion. Perhaps so, but I do not see that as much of a problem. 

The justices are supposed to withstand even intense popular pressure, which is why they have life tenure. Disclosing their certiorari votes, as some justices occasionally do in dissents, should not impact their ultimate resolution of the case. Anyone with such frail resolve should not be a justice in the first place. 

Petitions for certiorari average around 5,000 each term of court, almost all of which are denied. The Supreme Court’s agenda, which may comprise as few as 60 or 70 cases per term, can in some ways be as meaningful as its eventual decisions, by determining what sort of matters receive the court’s attention, and which are sidelined or ignored. 

As shown in a 2023 study by the advocacy organization Take Back the Court, where my daughter currently serves as president, certiorari grants in election law cases over the previous 10 years overwhelmingly moved the Supreme Court in an “anti-democracy” direction, providing opportunities to invalidate voting rights legislation, limit campaign finance restrictions or uphold gerrymandered congressional districts. 

Despite the concealment of the certiorari votes, there is reason to believe that the court accepts many cases based on a four-vote minimum. 

In a 1983 law review article, the late Justice John Paul Stevens described a search of his confidential docket sheets for the court’s 1979 term, which revealed that nearly a third of all granted certiorari petitions, 36 out of 123, received a “mere four” votes. Stevens did not disclose the names of the justices on either side of the decisions. 

The size of the certiorari vote could very well be significant in Trump v. United States. Although we do not know the precise votes, the justices’ recusals are always announced even at the certiorari stage. We, therefore, know that Justice Thomas did not recuse himself, even though his wife was deeply involved in the efforts to subvert the 2020 election. 

It is, thus, conceivable that Thomas delivered the crucial final vote to grant review and delay the trial, resulting in the lifeline, gift and huge win for Trump, no matter the case’s outcome on the merits. 

If so, the consequence is that a clearly conflicted justice has already impacted the course of the 2024 presidential election, implicating not only the legitimacy of a single case but also the court’s entire review process. 

Or maybe not. It is also possible — perhaps even likely — that five or more justices voted to take up the issue of presidential immunity, making any single vote irrelevant. Unfortunately, the Supreme Court’s insistence on secrecy has made it impossible to know whether Thomas has improperly exerted a determinative influence on the court’s agenda, in one of the most significant certiorari decisions in history. 

That is the problem with secrecy. It engenders suspicion with no way to resolve it. There is nothing about certiorari votes that requires opacity. As the Trump immunity case shows, there is every reason for transparency.   

Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.

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