Bonus 66: It's Not Trump's Court

Former President Trump has fared poorly in cases in which his personal conduct has been at issue. That doesn't necessarily predict the future, but it undermines claims that it's "his" Court

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this (like this Monday’s excessively nerdy breakdown of former President Trump’s emergency application to keep the January 6 prosecution on hold), much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

Speaking of Trump (don’t worry; next Monday’s issue will focus on something totally unrelated—the significant environmental law emergency applications on which the Court is holding a rare oral argument next Wednesday), I thought it would be useful in today’s bonus issue to push back against a talking point I hear a lot from folks who are especially cynical about the current Supreme Court: That the Republican-appointed justices, especially the three who were appointed by President Trump, are “in the bag” for Trump, and will go out of their way to rule for him, or, at the very least, to work to slow down rulings against him.

I understand why so many are cynical about various features of the contemporary Court. But this claim, in particular, is a canard. The reality is that, to date, Trump has fared remarkably poorly in contexts in which he has had a personal, and not just a presidential, stake in the dispute. That’s been true both in cases that have received plenary review and with respect to emergency applications. And although this pattern is in no way predictive of future cases (including how the Court handles the Colorado disqualification case, which I think Trump will win, or how it ultimately resolves the January 6 immunity case, which I think he will lose), it’s especially important for those who are critical of the Court to be accurate in their critiques. This one just doesn’t hold up.

For those who are not paid subscribers, the next free installment of the newsletter (“Making Sense of the ‘Good Neighbor’ Applications”) will drop on Monday morning. For those who are, please read on.