The Supreme Court may soon tell us in a Trump case
In 1857, the Supreme Court made one of the worst decisions in its history, the infamous Dred Scott case. It held that African Americans, whether free men or slaves, could not be considered American citizens. This ruling held until it was undone by the 13th (1865) and 14th (1868) amendments to the Constitution, guaranteeing citizenship to those born in the U.S. irrespective of race.
Then there was the “separate but equal” Plessy v. Ferguson decision of 1896, which upheld segregation. It took until 1954 to undo that one.
Soon, we may see whether the current Court makes another bad decision, one that reflects its conservative political bias or one that upholds both a jury decision and an appeals court one. Donald J. Trump wants his sentencing on 34 felony counts, slated for this Friday, quashed. If Trump wins a postponement, he might avoid being formally deemed a felon, The Wall Street Journal reported.
Even though he was convicted by a jury, in New York state courts a defendant becomes a felon when he is sentenced and a judgment is entered, the paper reported. “It puts the conviction officially on the books,” said Cheryl Bader, a Fordham School of Law professor.
As The New York Times reported, his lawyers filed an emergency application late Tuesday. That came after a New York appeals court rejected the same request on Tuesday. Based on last year’s Supreme Court presidential immunity holding, Trump argues that he is entitled to protection from sentencing now that he is the president-elect.
“The stakes of this skirmish … are enormous,” former U.S. Attorney Harry Litman writes in a Substack. “Through a wildly improbably series of legal and political twists that historians will analyze for decades, Trump now stands at the threshold of erasing a long series of crimes from the record books.”
Just a year ago, Trump was facing the prospect of four criminal trials that could have put him behind bars for years, and hundreds of millions of dollars in penalties from civil cases that had been brought against him, as NBC reported. Now the criminal cases are in jeopardy — the two federal prosecutions have already been dismissed, while a state case is stalled — and he could get appeals courts to shrink his hundreds of millions of dollars in civil judgments.
The dismal record shows how Trump is a master at gaming the legal system.
As far back as 1973, Trump and his father engineered a deal that spared them of serious consequences from a Justice Department lawsuit that alleged they violated the Fair Housing Act by steering Blacks away from apartments they owned. As Time reported, their later-disbarred lawyer Roy Cohn sued Justice for $100 million, claiming defamation. Two years later, the Trumps agreed to a consent decree that included giving a weekly list of vacancies to the New York Urban League. Trump later boasted that he ended up “making a minor settlement without admitting guilt.”
He learned in that fight that delaying, distorting, appealing and countersuing can be winning strategies. Later in his career, Trump ran casino businesses into the ground, leading to six bankruptcies in which he managed to keep millions even as he cheated creditors and his own employees who had bought his company stock.
“I didn’t realize he was as stupid as he is,” one former Trump Plaza worker told Mother Jones. “Honestly. I thought, way back when, the guy was way brighter than we were. He was running the company, and we were working for him. We thought he was brilliant. When we invested in it, we thought, how could this stock go so low?”
Of course, stupidity is a troubling description for Trump. He is brilliant as a huckster and political manipulator, despite intellectual limitations that were evident even when he was in college. “Donald Trump was the dumbest goddamn student I ever had!,” one former professor of his at Wharton repeatedly said, according to a close friend quoted by Philadelphia magazine. The friend recalled that the prof “would say that [Trump] came to Wharton thinking he already knew everything, that he was arrogant, and he wasn’t there to learn.”
Trump’s arrogance and disrespect for the law has continued with his repeated pattern of attacking judges he disagrees with or is threatened by. He labeled Judge Juan Merchand, who presided over his conviction in New York in the felony case, a “certified Trump hater,” going so far as to lambast the judge’s adult daughter for working at a digital consulting company whose clients included the 2020 Biden-Harris campaign.
Years before, when Trump criticized a U.S. Appeals Court judge in 2018, he so angered Supreme Court Chief Justice John Roberts that Roberts told the AP that the U.S. doesn’t have “Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Roberts added that “The independent judiciary is something we should all be thankful for.”
Trump responded in a tweet saying that the system did indeed have “Obama judges.”
Whether that’s true or not, it’s clear that the system has Trump judges. One, Aileen M. Cannon in Florida, last July gutted a classified-document case against Trump by ruling that Special Counsel Jack Smith had been unconstitutionally appointed to his job. “The very definition of an activist judge, she has single-handedly upended three decades of established law historically used fairly and in a bipartisan manner,” Joëlle Anne Moreno, a law professor at Florida International University told The New York Times.
The same judge just blocked Smith from releasing a report on the case. Just how much of Smith’s long investigation will ever come to light now is unclear, since the incoming Trump Justice Department will get to decide whether to pursue actions for disclosure. History may or may not someday get to see all that Smith found in the case.
The question now is whether the six conservative justices on the Supreme Court, including Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, will side with Trump on the matter of sentencing in the felonies case. The court has ruled against the former president on several cases involving him since he left office, mainly involving efforts by various official bodies to get Trump records.
The justices had “remarkably little interest in intervening in any of the cases about former President Trump’s personal behavior,” Steve Vladeck, a professor at the University of Texas at Austin School of Law, told NBC News.
Indeed, Trump’s conduct in the felony-conviction case was all too personal. He was convicted of falsifying business records while trying to cover up a $130,000 hush money payment to porn actress Stormy Daniels just before the 2016 presidential election.
With their upcoming decision, the Supreme Court justices will say as much about themselves as they do about Trump. They will also say as much about themselves as prior justices did in such cases as the Dred Scott and Plessy cases. Will these justices go down in history as Trump toadies or as judges who uphold the law over politics? Was Judge Roberts right about the judiciary being independent? We’ll soon find out.