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
