'Something's rotten': Ex-Supreme Court clerk goes public with criticism of justices

A former U.S. Supreme Court clerk cast suspicion on the lengthy delay by justices in rendering a decision in Donald Trump's immunity case.

The justices agreed Feb. 28 to hear his appeal and scheduled oral arguments for late April, which is a fairly short interval for most cases but considerably longer than it took for the court to hear and then decide his challenge of a Colorado ruling removing him from the presidential primary ballot, which took less than a month, noted law professor Leah Litman in a column for the New York Times.

"For those looking for the hidden hand of politics in what the Supreme Court does, there’s plenty of reason for suspicion on Donald Trump’s as-yet-decided immunity case given its urgency," wrote Litman, who teaches at the University of Michigan Law School and was a clerk for former Justice Anthony Kennedy.

"There are, of course, explanations that have nothing to do with politics for why a ruling still hasn’t been issued. But the reasons to think something is rotten at the court are impossible to ignore."

Nearly two months have passed since oral arguments in that case, which means there's virtually no chance Trump will stand trial before November's election in the Jan. 6 case, even if the court rejects his immunity claims, which Litman believes should be the correct decision.

"This court has lost the benefit of the doubt for myriad reasons, including its willingness to act quickly in cases that benefit Republican interests," Litman wrote. "In addition to the disqualification case, two and a half years ago, the court scheduled a challenge to the Biden administration’s test-or-vaccinate policy two weeks after the justices decided to hear it, and then issued a decision invalidating the policy less than one week later."

By the same token, the court's conservative majority moves slowly when that suits their partisan preferences, Litman argued, and she said the delay in Trump's immunity ruling was troubling.

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"The court could follow a path well charted in other cases and rule narrowly," she wrote. "The justices need not resolve anything and everything related to presidential immunity. It would be enough to conclude that whatever the precise bounds of presidential immunity, it doesn’t extend to orchestrating a monthslong effort to overturn the valid results of a presidential election."

"Even if presidents enjoy some immunity for official acts," Litman added, "plotting to remain in office while continuing to question the results of an election they clearly lost isn’t one of them."